Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto): (i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries; (ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000; (iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000; (iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts); (v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing; (vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement; (vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000; (viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person; (ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule; (x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property; (xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation; (xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and (xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand; (xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment); (xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year; (xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and (xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice. (i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 8 contracts
Sources: Merger Agreement (Lewis & Clark Ventures I, LP), Merger Agreement (Sagrera Ricardo A.), Merger Agreement (RiverRoad Capital Partners, LLC)
Material Contracts. (a) Except for this Agreement, Section 3.13(a) 5.19 of the Company WTW Disclosure Schedule Letter contains a listing of all Contracts described in clauses (i) through (xiii) below to whichcomplete and correct list, as of the date of this Agreement, the Company of each Contract described below in this Section 5.19(a) under which WTW or its Subsidiaries is a party any WTW Subsidiary has any current or by which they are boundfuture rights, other than a Company Benefit Planresponsibilities, and that are not expired obligations or have not been terminated and not including any Contracts pursuant liabilities (in each case, whether contingent or otherwise) or to which the Company has with no material outstanding any of their respective properties or executory obligations or Liabilities (such Contracts assets is subject, in each case as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, date of this Agreement (all Contracts of the type described in this Section 5.19(a) being referred to herein as the “WTW Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any partnership, joint venture, strategic alliance or collaboration Contract relating which is material to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or WTW and its Subsidiaries, taken as a whole;
(ii) any Contract under which that (A) purports to materially limit (1) the Company or material lines of business of WTW and its Subsidiaries is lessee (or, after the Effective Time, Aon and its Subsidiaries) or (2) the geographic area in which any of them may so engage in such business or holds (B) would require the disposition of any material assets or operatesmaterial line of business of WTW and its Subsidiaries (or, in each caseafter the Effective Time, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which Aon and its Subsidiaries taken as a whole) as a result of the aggregate annual rental payments do not exceed $500,000consummation of the Transactions;
(iii) any each acquisition or divestiture Contract under which or licensing agreement that contains representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations) that would reasonably be expected to result in the Company receipt or its Subsidiaries is lessor making of or permits any third party to hold or operate, future payments in each case, any tangible property excess of $50 million in the twelve (other than real property), owned or controlled by 12) month period following the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000date hereof;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected Contract relating to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company outstanding Indebtedness of WTW or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent for borrowed money or any of its Affiliates after the Closingfinancial guaranty thereof (whether incurred, (Bassumed, guaranteed or secured by any asset) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or 50 million other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person than (A) pursuant to which the Company Contracts solely among WTW and any wholly-owned WTW Subsidiary or its Subsidiaries (or Parent a guarantee by WTW or any WTW Subsidiary of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementa WTW Subsidiary, (B) financial guarantees entered into in the ordinary course of business consistent with a Governmental Authority past practice not exceeding $50 million, individually or in the aggregate (other than surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practice in each case to the extent not drawn upon), and (C) that imposes any material, non-monetary obligations on Contracts relating to Indebtedness explicitly included in the Company or its Subsidiaries (or Parent or any of its Affiliates after consolidated financial statements in the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other handWTW SEC Documents;
(xivv) any each Contract with the Company or its Subsidiaries(other than a WTW Benefit Plan) between WTW, on the one hand, and any officer, director, manager, stockholder, member director or Affiliate (other than a wholly-owned WTW Subsidiary) of an Affiliate of the Company or its Subsidiaries WTW or any of their respective Affiliates “associates” or “immediate family” members (excluding employee confidentiality as such terms are defined in Rule 12b-2 and invention assignment agreementsRule 16a-1 of the Exchange Act), equity on the other hand, including any Contract (other than a WTW Benefit Plan) pursuant to which WTW has an obligation to indemnify such officer, director, Affiliate or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)family member;
(xvvi) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments (excluding licenses for commercially available computer software that are generally available on standard terms for fees of no more than $500,000 per year25 million annually or in the aggregate) under which WTW or any WTW Subsidiary is granted any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property rights of a third party, which Contract is material to WTW and WTW Subsidiaries, taken as a whole;
(xvivii) any employment Contract (excluding licenses for commercially available computer software that are generally available on standard terms for fees of no more than $25 million annually or consulting in the aggregate) under which WTW or any WTW Subsidiary has granted to a third party any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property rights (including any development thereof), which Contract with severanceis material to WTW and WTW Subsidiaries, change in controltaken as a whole;
(viii) any shareholders, retention investors rights, registration rights or similar arrangements, that will result in any obligation (absolute agreement or contingent) arrangement of the Company WTW or any of its Subsidiaries Significant Subsidiaries;
(ix) any Contract that relates to make any payment swap, forward, futures, or incur other similar derivative transaction for hedging purposes with a notional value in excess of $100 million;
(x) any Liability as a result material collective bargaining agreement or other material Contract with any labor union;
(xi) any Contract involving the settlement of any action or threatened action (or series of related actions) which will (A) involve payments after the consummation date hereof of consideration in excess of $25 million or (B) impose material monitoring or reporting obligations to any other Person outside the transactions contemplated by this Agreement, termination ordinary course of employment or bothbusiness; and
(xviixii) any Contract not otherwise described in any other Contract the performance subsection of which requires either this Section 5.19(a) that would be required to be filed by WTW as a “material contract” (Aas such term is defined in Item 601(b)(10) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life Regulation S-K of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeSEC).
(ib) Each Neither WTW nor any WTW Subsidiary is in breach of or default under the terms of any WTW Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a WTW Material Adverse Effect. To the knowledge of WTW, as of the date hereof, no other party to any WTW Material Contract is in breach of or default under the terms of any WTW Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a WTW Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a WTW Material Adverse Effect, each WTW Material Contract is a valid and binding on the Company obligation of WTW or its Subsidiaries, as applicableWTW Subsidiary which is party thereto and, to the Company’s Knowledgeknowledge of WTW, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, examinership, fraudulent transfer, reorganization, moratorium or other Laws affecting generally the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) the Company or its Subsidiaries and, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as discretion of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain court before which any material executory or continuing terms, conditions, obligations or rights)proceeding therefor may be brought.
Appears in 5 contracts
Sources: Business Combination Agreement, Business Combination Agreement (Aon PLC), Business Combination Agreement (Willis Towers Watson PLC)
Material Contracts. (a) Section 3.13(a3.14(a) of the Company Seller Disclosure Schedule contains a listing lists the following types of all Contracts described in clauses (i) through (xiii) below contracts and agreements to whichwhich the Seller, as of the date of this Agreementany Company, the any Subsidiary or any Group Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant relate primarily to which the Company has with no material outstanding or executory obligations or Liabilities Business (such Contracts contracts and agreements as are required to be set forth on in Section 3.13(a3.14(a) of the Seller Disclosure Schedule and the Company Disclosure Schedule, IP Agreements being the “Material Seller Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract each “material contract” (as such term is used in Form 20-F of the SEC) relating to Indebtedness for borrowed money of the Companies, the Subsidiaries, the Group Companies, or the Business, or any such contract to which any Company, any Subsidiary or any Group Company or its Subsidiaries or to the placing of is a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesparty;
(ii) all contracts and agreements pursuant to which control is exercised by the Seller, the Companies or the Subsidiaries over any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000Group Company;
(iii) all contracts and agreements between any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each caseCompany, any tangible property Subsidiary or any Group Company, on the one hand, and the Seller or any of its Affiliates (other than real propertyany Company, any Subsidiary or any Group Company), owned or controlled by on the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000other hand;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contractall contracts and agreements that limit, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports purport to limit, in the ability of any material respectCompany, the freedom of the any Subsidiary or any Group Company to compete or its Subsidiaries to engage or compete in any line of business or with any Person person or entity or in any geographic area or that would so limit during any period of time;
(v) all contracts and agreements providing for an interest rate, currency or purport commodity swap, derivative, hedge, forward purchase or sale or other transaction similar in nature or effect to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingoff-balance sheet financing;
(vi) any Contract requiring any all contracts and agreements for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount payments in excess of (A) $300,000 annually or (B) $1,000,000 over 500,000 other than contracts and agreements for which the life of the agreementpayments to be made thereunder are currently accounted for in Seller’s capital budget;
(vii) all joint venture contracts, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company, any Contract requiring the Subsidiary or any Group Company or its Subsidiaries to guarantee the Liabilities of with any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000third party;
(viii) all contracts and agreements for pending acquisitions of capital stock or assets of another Person (whether by merger or stock or asset purchase);
(ix) all contracts and agreements (including any Contract so-called take or pay or keep well agreements) under which the any Company, any Subsidiary, or any Group Company or its Subsidiaries has, has directly or indirectly, made indirectly guaranteed or otherwise agreed to make be responsible for Indebtedness, Liabilities or obligations of another Person;
(x) any loancontract or agreement (other than contracts of the type described in subclauses (i) through (ix) above) that involves aggregate future payments by or to any Company, advanceany Subsidiary, or assignment any Group Company in excess of payment $1,000,000 per annum, other than a purchase or sales order or other contract entered into in the ordinary course of business consistent with past practice; and
(xi) all other contracts and agreements that relate primarily to any Person outside the Business and are material to the Companies, the Subsidiaries and the Group Companies, taken as a whole, or the absence of the Ordinary Course of Business orwhich could reasonably be expected, individually or in the aggregate, to have a Seller Material Adverse Effect.
(b) Except as could not reasonably be expected, individually or in an amount in excess of $200,000 or made any capital contribution tothe aggregate, or other investment into have a Seller Material Adverse Effect:
(i) each Material Seller Contract is a legal, any Personvalid and binding agreement;
(ixii) any Contract required to be disclosed on Section 3.19 none of the Company Disclosure ScheduleSeller, the Companies, the Subsidiaries or the Group Companies has received any written claim of material default under any Material Seller Contract and none of the Seller, the Companies, the Subsidiaries or the Group Companies is in material breach or violation of, or material default under, any Material Seller Contract;
(xiii) any Contract with any Person (A) pursuant to which the Company Seller’s Knowledge, no other party is in material breach or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business)violation of, or under which the Company or its Subsidiaries has material default under, any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)Material Seller Contract; and
(xiiiiv) each collective bargaining agreement or other Contract with neither the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees execution of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of this Agreement nor the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract Agreement and the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or Ancillary Agreements shall constitute a default under, give rise to modification, acceleration, or cancellation rights under, or otherwise adversely affect any of the rights of the Companies, the Subsidiaries or the Group Companies under any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoSeller Contract. The Company Seller has furnished or made available to Parent the Purchaser true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersSeller Contracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Focus Media Holding LTD)
Material Contracts. (a) Section 3.13(a) of Except for the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be agreements set forth on Section 3.13(a) of the Company Disclosure ScheduleSchedule 5.21 (collectively, the “Material Contracts”). True, correct and complete copies as of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
Closing Date there are no (i) employment agreements covering the management of Borrower, (ii) collective bargaining agreements or other labor agreements covering any Contract relating employees of Borrower, (iii) agreements for managerial, consulting or similar services to Indebtedness for borrowed money which Borrower is a party or by which it is bound, (iv) agreements regarding Borrower, its assets or operations or any investment therein to which any of the Company its equity holders is a party, (v) patent licenses, trademark licenses, copyright licenses or its Subsidiaries other lease or license agreements to the placing of which Borrower is a Lien party, either as lessor or lessee, or as licensor or licensee (other than widely-available software subject to “shrink-wrap” or “click-through” software licenses), (vi) distribution, marketing or supply agreements to which Borrower is a Permitted Lienparty, (vii) on customer agreements to which Borrower is a party (in each case with respect to any material assets or properties agreement of the Company type described in the preceding clauses (i), (iii), (iv), (v), (vi) and (vii) requiring payment of more than $250,000 in any year), (viii) partnership agreements pursuant to which Borrower is a partner, limited liability company agreements pursuant to which Borrower is a member or its Subsidiaries;
manager, or joint venture agreements to which Borrower is a party, (iiix) real estate leases, or (x) any Contract under other agreements or instruments to which the Company or its Subsidiaries Borrower is lessee of or holds or operatesa party, in each casecase the breach, any tangible property (other than real property)nonperformance or cancellation of which, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrencehave a Material Adverse Effect. Schedule 5.21 sets forth, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property each real estate lease agreement to which Borrower is a party as of the Closing Date, the address of the subject property. The consummation of the transactions contemplated by the Loan Documents will not give rise to a right of termination in favor of any party to any Material Contract (other than any Non-Scheduled Contracts);
(vBorrower) any Contract that (A) limits or purports which would reasonably be expected to limithave, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, either individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMaterial Adverse Effect.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 4 contracts
Sources: Credit Agreement (Aralez Pharmaceuticals Inc.), Credit Agreement (Aralez Pharmaceuticals Inc.), Credit Agreement (Aralez Pharmaceuticals Inc.)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date For purposes of this Agreement, a “Material Contract” shall mean the Company Intellectual Property Agreements and all of the following Contracts to and by which the Company or any of its Subsidiaries is a party or by which they are is bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto)::
(i) any employment, independent contractor or consulting Contract relating to Indebtedness for borrowed money (in each case, under which the Company has continuing obligations as of the date hereof) with any employee, independent contractor or director of the Company or its Subsidiaries or member of the Company Board other than Contracts with contractors or consultants that can be terminated without material penalty upon notice of ninety (90) days or less or offer letters and employment agreements entered into in the ordinary course of business consistent with past practice with employees, independent contractors or directors who are not officers and are terminable “at will” without the Company or its Subsidiaries incurring any material liability or obligation;
(ii) any Contract or plan, including the Company Stock Plans or any stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the consummation of the transactions contemplated hereby or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except for benefits or value attributable solely to the placing increase in the value of the Company Common Stock as a result of any of the transactions contemplated by this Agreement;
(iii) any Contract providing for indemnification or any guaranty by or on the part of the Company or any its Subsidiaries (in each case, under which the Company or its Subsidiaries has continuing obligations as of the date hereof), other than (A) any guaranty by the Company of any of its Subsidiary’s obligations or (B) any Contract entered into in connection with the development, distribution, resale, sale, license or provision of any services or hardware or software products of the Company or any of its Subsidiaries or in any inbound license or services agreement, in each case, entered into in the ordinary course of business;
(iv) any Contract containing any covenant (A) limiting the right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any material technology owned by the Company or any of its Subsidiaries or Company Intellectual Property or to compete with any Person in any line of business, prohibiting the Company or any of its Subsidiaries (or, after the Closing Date, Parent or the Surviving Corporation or any of their respective Subsidiaries) from engaging in business with any Person or levying a fine, charge or other payment for doing so or otherwise prohibiting or limiting the right of the Company or its Subsidiaries to distribute or offer any products or services or to purchase or otherwise obtain any software components, parts or subassemblies; or (B) granting any exclusive rights to a third party, in each case other than any such Contracts that (x) may be cancelled without material liability to the Company or its Subsidiaries upon notice of ninety (90) days or less or (y) are not, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole;
(v) any Contract (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a Lien (material amount of assets other than a Permitted Lienin the ordinary course of business or (B) on pursuant to which the Company or any of its Subsidiaries will acquire any material assets ownership interest in any other Person or properties other business enterprise other than the Company’s Subsidiaries;
(vi) Contracts, if any, for (A) the top ten (10) distributors for each of the past four (4) complete calendar quarters (as measured by unaudited quarterly bookings identified in the Company’s sales force automation tools), (B) the top fifteen (15) reseller for each of the past four (4) complete calendar quarters (as measured by unaudited quarterly bookings identified in the Company’s sales force automation tools), and (C) the top ten (10) direct customers for the past four (4) complete calendar quarters (as measured by unaudited quarterly bookings identified in the Company’s sales force automation tools), in each case excluding quotes and purchase orders with such distributors, resellers, and customers;
(vii) any Contract providing for the development by any third party of any material Company Intellectual Property for or on behalf of the Company or its Subsidiaries, and which may not be canceled without material liability to the Company or its Subsidiaries upon notice of one hundred eighty (180) days or less;
(viii) containing any obligation to provide support or maintenance for the Company Products outside of the ordinary course of business consistent with past practice, other than those Contracts obligations that are terminable by the Company or any of its Subsidiaries on no more than ninety (90) days notice without material liability or financial obligation to the Company or its Subsidiaries;
(iiix) any Contract under which authorizing another Person to provide support or maintenance to the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based Company’s customers on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life behalf of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limitCompany, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the ClosingSubsidiaries, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company Contracts with distributors or a Subsidiary) resellers that are obligated to provide such support or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedulemaintenance;
(x) any Contract with any Person third party to manufacture or reproduce any Company Products or any Contract to sell or distribute any Company Products, other than Contracts with customers, distributors, resellers or sales representatives entered into in the ordinary course of business;
(xi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than accounts receivables and payables in the ordinary course of business consistent with past practice;
(xii) any settlement Contract, other than (A) pursuant to which releases immaterial in nature or amount entered into with former employees or independent contractors of the Company or its Subsidiaries (or Parent or any in the ordinary course of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events business or (B) under settlement agreements for cash only (which has been paid or is reserved for on the Company or its Subsidiaries Balance Sheet) and does not exceed $200,000 as to such settlement;
(xiii) any Contract which grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license offer or any other similar rights right with respect to any material Company Product assets, rights or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business properties of the Company or any of its Subsidiaries or for Subsidiaries;
(xiv) any Contract which limits the acquisition payment of dividends by the Company or any of its Subsidiaries Subsidiaries;
(xv) any Contract which relates to a joint venture, partnership, limited liability company agreement, revenue sharing or other similar agreement requiring the sharing of the assets revenues or business of joint venture;
(xvi) any Contract which relates to an acquisition, divestiture, merger or similar transaction and which contains any material obligations (including indemnification, “earn-out” or other Person contingent obligations) that are still in effect;
(other than acquisitions xvii) any Collective Bargaining Agreement or dispositions made in the Ordinary Course of Business), or under similar Contract;
(xviii) any Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any continuing obligation with respect product or service to an “earn-out,” contingent purchase price any third party on a most favored nation (MFN) basis or other contingent or deferred payment obligationsimilar pricing basis;
(xiixix) any settlement, conciliation or similar Contract (A) requiring monetary payments by entered into directly between the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiariesa United States federal Governmental Authority, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of pursuant to which the Company or any of its Subsidiaries provided or provides any Company Products to make such United States federal Governmental Authority, other than sales of Company Products to United States federal Governmental Authorities pursuant to purchase orders without any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andfurther written agreement;
(xviixx) any other Contract the performance of which requires either (A) annual payments to or from that provides for payment obligations by the Company or any of its Subsidiaries in excess of $300,000 1,000,000 or (B) aggregate payments to or from the Company or its Subsidiaries more in excess of $1,500,000 over the life of the agreement and, in each case, any individual fiscal year that is not terminable by the applicable Company or its Subsidiaries upon notice of ninety (90) days or less without material liability to the Company or its Subsidiaries without penalty upon less than thirty Subsidiary and is not disclosed pursuant to clauses (30i) days’ prior written noticethrough (xxi) above; and
(xxi) any other Contract not listed in Section 4.13(a)(i)-(xx) above that would be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company and its Subsidiaries.
(ib) Section 4.13 of the Company Disclosure Schedule contains a complete and accurate list, as of the date hereof, of all Material Contracts.
(c) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to (and/or each such Subsidiary of the Company’s Knowledge, the counterparties Company party thereto, ) and is in full force and effect effect, and enforceable in accordance with its terms against neither the Company or nor any of its Subsidiaries andparty thereto, nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement Knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not any other party thereto, is in material breach of, or default under, any such Material Contract Contract, and (iii) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute such a material breach of, or default under, any Material Contract thereunder by the Company or any of its Subsidiaries Subsidiaries, or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as Knowledge of the date hereof (Company, any other than purchase ordersparty thereto, invoicesexcept for such failures to be in full force and effect and such breaches and defaults that would not, and similar confirmatory individually or administrative documents that are ancillary to in the main contractual relationship between aggregate, have a Material Adverse Effect on the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Company.
Appears in 4 contracts
Sources: Merger Agreement (Emc Corp), Merger Agreement (Data Domain, Inc.), Merger Agreement (Emc Corp)
Material Contracts. (a) Section 3.13(a) Schedule 4.19 of the Company Disclosure Schedule contains Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, of:
(i) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Company Exchange Act);
(ii) each Contract that provides for the acquisition, disposition, license, use, distribution or its Subsidiaries is a party outsourcing of assets, services, rights or by which they are bound, properties (other than a Company Benefit Plan, Oil and that are not expired or have not been terminated and not including any Contracts pursuant Gas Properties) with respect to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of reasonably expects that the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies its Subsidiaries will make annual payments in excess of the Contracts listed on Section 3.13(a) $100,000 or aggregate payments in excess of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):$1,000,000;
(iiii) any each Contract relating to (A) for Indebtedness for borrowed money or the deferred purchase price of property by the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or to secured by any asset) or (B) that creates a capitalized lease obligation, except, in the placing cases of a Lien clauses (A) and (B) with an aggregate principal amount not in excess of $200,000, and other than a Permitted Lien) on any material assets agreements solely between or properties of among the Company or and its Subsidiaries;
(iiiv) any each Contract under to which the Company or any Subsidiary of the Company is a party that (A) restricts the ability of the Company or any Subsidiary of the Company to compete in any business or with any Person in any geographical area, (B) requires the Company or any Subsidiary of the Company to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of any third party, except in the case of each of clauses (A), (B) and (C) for such restrictions, requirements and provisions that are not material to the Company and its Subsidiaries;
(v) any Contract providing for the purchase or sale by the Company or any of its Subsidiaries is lessee of Hydrocarbons that (A) has a remaining term of greater than sixty (60) days and does not allow the Company or holds such Subsidiary to terminate it without penalty on sixty (60) days’ notice or operatesless, (B) contains a minimum throughput commitment, minimum volume commitment, “take-or-pay” clause or any similar material prepayment or forward sale arrangement or obligation (excluding “gas balancing” arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time or (C) contains acreage dedication, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead that, in each case, cover, guaranty, dedicate or commit (I) more than 1,000 net acres or (II) volumes in excess of 10,000 MMcf of gas or 2,000 boe of liquid Hydrocarbons on a monthly basis (calculated on a yearly average basis);
(vi) any tangible property acquisition or divestiture Contract that contains “earn out” or other similar contingent payment obligations (other than real propertyasset retirement obligations, plugging and abandonment obligations and other reserves of the Company set forth in the Company Reserve Report), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or that would reasonably be expected to require result in annual payments in excess of $100,000;
(based on vii) each Contract for lease of personal property or real property (other than Oil and Gas Properties) involving payments in excess of $100,000 in any occurrence, development, activity calendar year or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract that are not terminable without penalty or (B) other Contract with respect liability to material the Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any ongoing obligation pursuant to such Contract that is not caused by any such termination) within sixty (A60) limits or purports to limitdays, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant Contracts related to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000drilling rigs;
(viii) any each Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for that could require the disposition of any portion of the material assets or line of business of the Company or its Subsidiaries or for (or, after the acquisition by the Company Effective Time, Parent or its Subsidiaries Subsidiaries);
(ix) each Contract involving the pending acquisition or sale of (or option to purchase or sell) any material amount of the assets or business properties of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (including any Oil and Gas Properties), taken as a whole, other than Contracts involving the acquisition or Parent sale of (or option to purchase or sell) Hydrocarbons in the ordinary course of business;
(x) each ISDA Master Agreement for any Derivative Transaction;
(xi) each material partnership, joint venture or limited liability company agreement, other than any customary joint operating agreements or unit agreements affecting the Oil and Gas Properties of its Affiliates after the Closing)Company; and
(xiiixii) each collective bargaining joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or other similar Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of requiring the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreementexpenditures from and after January 1, termination of employment or both; and
(xvii) any other Contract the performance of which requires 2020 that either (A) annual payments would reasonably be expected to or from the Company or its Subsidiaries be in excess of $300,000 or 1,000,000 in the aggregate, (B) aggregate payments is material to the operation of the Company and its Subsidiaries, taken as a whole, or from (C) contains an area of mutual interest or any “tag along” or “drag along” (or similar rights) allowing a third party, or requiring the Company or any of its Subsidiaries Subsidiaries, to participate in excess of $1,500,000 over the life any future transactions with respect to any assets or properties of the agreement andCompany and its Subsidiaries, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less other than thirty (30) days’ prior written noticecustomary joint operating agreements and continuous development obligations under Oil and Gas Leases.
(ib) Each Collectively, the Contracts that are required to be set forth in Section 4.19(a) are herein referred to as the “Company Contracts.” A complete and correct copy of each of the Company Contracts has been made available to Parent. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is valid legal, valid, binding and binding enforceable in accordance with its terms on the Company or and each of its Subsidiaries, as applicableSubsidiaries that is a party thereto and, to the knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in accordance with its terms against the aggregate, a Company Material Adverse Effect, neither the Company or nor any of its Subsidiaries andis in breach or default under any Company Contract nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is any other party to any such Company Contract in material breach of, or default underthereunder, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries Subsidiaries, or, to the knowledge of the Company’s Knowledge, the counterparties any other party thereto. The Company has made available There are no disputes pending or, to Parent true and complete copies of all Material Contracts in effect as the knowledge of the date hereof (Company, threatened with respect to any Company Contract and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other than purchase ordersparty to any Company Contract to terminate for default, invoicesconvenience or otherwise any Company Contract, and similar confirmatory or administrative documents that are ancillary nor to the main contractual relationship between knowledge of the parties Company, is any such party threatening to a particular Contract or group of Contracts and thatdo so, in each casecase except as has not had or would not reasonably be expected to have, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)a Company Material Adverse Effect.
Appears in 4 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (HighPoint Resources Corp), Transaction Support Agreement (Bonanza Creek Energy, Inc.)
Material Contracts. (a) Section 3.13(a) Schedule 4.20 of the Company Disclosure Schedule contains Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, of:
(i) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) to which the Company or any of its Subsidiaries is a party party;
(ii) each Contract that provides for the acquisition, disposition, license, use, distribution or by which they are boundoutsourcing of assets, other than a Company Benefit Planservices, and that are not expired rights or have not been terminated and not including any Contracts pursuant properties with respect to which the Company has with no material outstanding reasonably expects that the Company and its Subsidiaries will make or executory obligations receive payments in any calendar year in excess of $20,000,000 or Liabilities aggregate payments in excess of $30,000,000, in each case other than (such A) any Contract providing for the purchase or sale by the Company or any of its Subsidiaries of Hydrocarbons, or related to Hydrocarbons, produced water or freshwater or Contracts as are required to be set forth on Section 3.13(afor gathering, processing, transportation, treating, storage, blending or similar midstream services (each, a “Company Marketing Contract”), or (B) master services agreements and similar agreements;
(iii) each Contract (other than agreements solely between or among the Company and its Subsidiaries) (A) evidencing Indebtedness of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies or any of the Contracts listed on Section 3.13(aits Subsidiaries or (B) that creates a capitalized lease obligation of the Company Disclosure Schedule have previously been made available or any of its Subsidiaries, in each case with an aggregate principal amount in excess of $20,000,000;
(iv) each Contract to which the Company or any Subsidiary of the Company is a party that (A) requires the Company or any Subsidiary of the Company to conduct any business on a “most favored nations” basis with any third party or (B) provides for “exclusivity” or any similar requirement in favor of any third party, except in the case of each of clauses (A) and (B), for such restrictions, requirements and provisions that are not material to the Company and its Subsidiaries or that relate to acreage dedications;
(v) each Contract that (A) purports to limit in any material respect either the type of business in which the Company or any of its Subsidiaries (or, after the Initial Company Merger Effective Time, Parent or its agents Subsidiaries) may engage or representativesthe locations in which any of them may so engage in any business (including any contract containing any area of mutual interest, together with all amendments thereto):joint bidding area, joint acquisition area, or non-compete or similar type of provision) or (B) could require the disposition of any material assets or line of business of the Company or any of its Subsidiaries (or, after the Initial Company Merger Effective Time, Parent or its Subsidiaries);
(ivi) each Contract for any Derivative Transaction;
(vii) any Company Marketing Contract relating which is not terminable without penalty or other payment upon 90 days’ or less notice and (A) that would reasonably be expected to Indebtedness involve payments in excess of $10,000,000 in any calendar year, (B) that contains acreage dedications other than wellbore-only dedications or (C) that contains minimum volume commitments or capacity reservation fees that would reasonably be expected to involve payments, taken as a whole, of more than $1,000,000 in any calendar year;
(viii) any acquisition or divestiture Contract that contains “earn out” or other similar contingent payment obligations (other than asset retirement obligations, plugging and abandonment obligations and other reserves of the Company set forth in the Company Reserve Report), that would reasonably be expected to result in annual payments by or to the Company or any of its Subsidiaries in excess of $5,000,000;
(ix) each Contract for borrowed money lease of personal property or real property (other than Oil and Gas Properties and Contracts related to drilling rigs) involving payments in excess of $5,000,000 in any calendar year that are not terminable without penalty or other liability to the Company (other than any ongoing obligation pursuant to such Contract that is not caused by any such termination) within ninety (90) days;
(x) each Contract that would reasonably be expected to require the disposition of any assets or line of business of the Company or its Subsidiaries (or, after the Initial Company Merger Effective Time, Parent or its Subsidiaries) for which the aggregate consideration (or the fair market value of such consideration, if non-cash) exceeds $5,000,000;
(xi) each Contract involving the pending acquisition or sale of (or option to purchase or sell) any of the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries (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 $5,000,000;
(xii) each material joint venture agreement, other than any customary joint operating agreements or unit agreements affecting the Oil and Gas Properties of the Company or that are exclusively among (a) the Company and any of its wholly owned Subsidiaries or (b) Heat OpCo and any of its wholly owned Subsidiaries;
(iixiii) each agreement for the employment or engagement of any current or former employee, officer, director or other individual service provider of the Company or any Subsidiary thereof that (A) provides for (1) annual compensation that could exceed $150,000; (2) payment of any severance benefits; or (3) any change in control, retention or other payments that would be triggered solely by the consummation of the Transactions contemplated hereunder; or (B) cannot be terminated upon thirty (30) days’ notice or less without further payment, liability or obligation;
(xiv) each Contract under that is a settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which the Company or any of its Subsidiaries is lessee will have any material outstanding obligation after the date of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000this Agreement;
(iiixv) any each Contract under which the relating to a Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;Related Party Transaction; and
(ivxvi) any (A) each joint venturedevelopment agreement, profit-sharingexploration agreement, partnershipparticipation, collaborationfarmout, co-promotion, commercialization or research or development Contract, farmin or similar Contract, in each caseexcluding joint operating agreements, which requires, or that would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries expenditures in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries 20,000,000 in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeany one calendar year period.
(ib) Each Collectively, the Contracts described in Section 4.20(a) are herein referred to as the “Company Contracts,” including, for the avoidance of doubt, any Company Marketing Contract responsive under Section 4.20(a)(vii). A complete and correct copy of each of the Company Contracts (other than the Company Marketing Contracts) has been made available to Parent. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is valid legal, valid, binding and binding enforceable in accordance with its terms on the Company or and each of its Subsidiaries, as applicableSubsidiaries that is a party thereto and, to the knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect effect, subject, as to enforceability, to Creditors’ Rights. Except as has not had and enforceable would not reasonably be expected to have, individually or in accordance with its terms against the aggregate, a Company Material Adverse Effect, neither the Company or nor any of its Subsidiaries andis in breach or default under any Company Contract nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is any other party to any such Company Contract in material breach of, or default underthereunder, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries Subsidiaries, or, to the knowledge of the Company’s Knowledge, the counterparties any other party thereto. The Company has made available There are no disputes pending or, to Parent true and complete copies of all Material Contracts in effect as the knowledge of the date hereof (Company, threatened with respect to any Company Contract and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other than purchase ordersparty to any Company Contract to terminate for default, invoicesconvenience or otherwise any Company Contract, and similar confirmatory or administrative documents that are ancillary nor to the main contractual relationship between knowledge of the parties Company, is any such party threatening to a particular Contract or group of Contracts and thatdo so, in each casecase except as has not had or would not reasonably be expected to have, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)a Company Material Adverse Effect.
Appears in 4 contracts
Sources: Merger Agreement (Earthstone Energy Inc), Merger Agreement (Earthstone Energy Inc), Merger Agreement (Permian Resources Corp)
Material Contracts. (a) Section 3.13(a) Schedule 5.18 of the Company Parent Disclosure Schedule contains Letter, together with the lists of exhibits contained in the Parent SEC Documents, sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, of:
(i) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Company Exchange Act) to which Parent or any of its Subsidiaries is a party;
(ii) each Contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties with respect to which Parent reasonably expects that Parent and its Subsidiaries will make or receive payments in any calendar year in excess of $40,000,000 or aggregate payments in excess of $60,000,000, in each case other than (A) any Contract providing for the purchase or sale by the Company or any of its Subsidiaries of Hydrocarbons, or related to Hydrocarbons, produced water or freshwater or Contracts for gathering, processing, transportation, treating, storage, blending or similar midstream services (each, a “Parent Marketing Contract”) or (B) master services agreements and similar agreements;
(iii) each Contract (other than agreements solely between or among Parent and its Subsidiaries) (A) evidencing Indebtedness of Parent or any of its Subsidiaries or (B) that creates a capitalized lease obligation of Parent or any of its Subsidiaries, in each case with an aggregate principal amount in excess of $40,000,000;
(iv) each Contract to which Parent or any Subsidiary of Parent is a party that (A) requires Parent or any Subsidiary of Parent to conduct any business on a “most favored nations” basis with any third party or by which they are bound(B) provides for “exclusivity” or any similar requirement in favor of any third party, other than a Company Benefit Planexcept in the case of each of clauses (A) and (B), for such restrictions, requirements and provisions that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or and its Subsidiaries or that relate to acreage dedications;
(v) each Contract that (A) purports to limit in any material respect either the placing type of a Lien business in which Parent or any of its Subsidiaries may engage or the locations in which any of them may so engage in any business (other than a Permitted Lienincluding any contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision) on or (B) could require the disposition of any material assets or properties line of the Company business of Parent or its Subsidiaries;
(iivi) each Contract for any Derivative Transaction;
(vii) any Parent Marketing Contract under which is not terminable without penalty or other payment upon 90 days’ or less notice and (A) that would reasonably be expected to involve payments in excess of $20,000,000 in any calendar year, (B) that contains acreage dedications other than wellbore-only dedications or (C) that contains minimum volume commitments or capacity reservation fees that would reasonably be expected to involve payments by Parent and its Subsidiaries, taken as a whole, of more than $2,000,000 in any calendar year;
(viii) any acquisition or divestiture Contract that contains “earn out” or other similar contingent payment obligations (other than asset retirement obligations, plugging and abandonment obligations and other reserves of Parent set forth in the Company Parent Reserve Report), that would reasonably be expected to result in annual payments by or to Parent or any of its Subsidiaries is lessee in excess of $10,000,000;
(ix) each Contract for lease of personal property or holds or operates, in each case, any tangible real property (other than real property), owned Oil and Gas Properties and Contracts related to drilling rigs) involving payments in excess of $10,000,000 in any calendar year that are not terminable without penalty or other liability to Parent (other than any ongoing obligation pursuant to such Contract that is not caused by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000such termination to ) within ninety (90) days;
(iiix) any each Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or that would reasonably be expected to require (based on the disposition of any occurrence, development, activity assets or event contemplated by such Contract), aggregate payments to or from the Company line of business of Parent or its Subsidiaries in excess for which the aggregate consideration (or the fair market value of such consideration, if non-cash) exceeds $1,000,000 over 10,000,000;
(xi) each Contract involving the life pending acquisition or sale of (or option to purchase or sell) any of the Contract assets or properties of Parent or its Subsidiaries (Bincluding 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) other Contract with respect to exceeds $10,000,000;
(xii) each material Company Licensed Intellectual Property (joint venture agreement, other than any Non-Scheduled Contracts)customary joint operating agreements or unit agreements affecting the Oil and Gas Properties of Parent or that are exclusively among Parent and its wholly owned Subsidiaries;
(vxiii) any each Contract that relating to a Parent Related Party Transaction; and
(Axiv) limits each joint development agreement, exploration agreement, participation, farmout, farmin or purports to limitsimilar Contract, in any material respectexcluding joint operating agreements, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport reasonably be expected to limit, in any material respect, the operations of require Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount make expenditures in excess of $40,000,000 in any one calendar year period.
(Ab) $300,000 annually or (BCollectively, the Contracts described in Section 5.18(a) $1,000,000 over are herein referred to as the life “Parent Contracts,” including, for the avoidance of doubt, any Parent Marketing Contract responsive under Section 5.18(a)(vii). A complete and correct copy of each of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person Parent Contracts (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a SubsidiaryParent Marketing Contracts) has guaranteed been made available to the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed Company. Except as has not had and would not reasonably be expected to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave, individually or in the aggregate, a Parent Material Adverse Effect, each Parent Contract is legal, valid, binding and enforceable in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed accordance with its terms on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) and each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicablea party thereto and, to the Company’s Knowledgeknowledge of Parent, the counterparties each other party thereto, and is in full force and effect effect, subject, as to enforceability, to Creditors’ Rights. Except as has not had and enforceable would not reasonably be expected to have, individually or in accordance with its terms against the Company or aggregate, a Parent Material Adverse Effect, neither Parent nor any of its Subsidiaries andis in breach or default under any Parent Contract nor, to the Company’s Knowledgeknowledge of Parent, the counterparties thereto (subject is any other party to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not any such Parent Contract in material breach of, or default underthereunder, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company Parent or its Subsidiaries Subsidiaries, or, to the Company’s Knowledgeknowledge of Parent, the counterparties any other party thereto. The Company There are no disputes pending or, to the knowledge of Parent, threatened with respect to any Parent Contract and neither Parent nor any of its Subsidiaries has made available to Parent true and complete copies of all Material Contracts in effect as received any written notice of the date hereof (intention of any other than purchase ordersparty to any Parent Contract to terminate for default, invoicesconvenience or otherwise any Parent Contract, and similar confirmatory or administrative documents that are ancillary nor to the main contractual relationship between the parties knowledge of Parent, is any such party threatening to a particular Contract or group of Contracts and thatdo so, in each casecase except as has not had or would not reasonably be expected to have, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)a Parent Material Adverse Effect.
Appears in 4 contracts
Sources: Merger Agreement (Earthstone Energy Inc), Merger Agreement (Earthstone Energy Inc), Merger Agreement (Permian Resources Corp)
Material Contracts. (a) Section 3.13(a) Schedule 3.24 delivered to HNWC by AMCON prior to the execution of the Company Disclosure Schedule contains a listing of this Agreement lists all Contracts described in clauses (i) through (xiii) below material contracts and agreements to which, as of the date of this Agreementhereof, the Company AMCON or its Subsidiaries any AMCON Subsidiary is a party or by which they are boundAMCON or any AMCON Subsidiary is bound or under which AMCON or any AMCON Subsidiary has or may acquire any rights, other than a Company Benefit Planwhich were not filed prior to the date hereof as exhibits to AMCON SEC Documents, and that are not expired which involve or have not been terminated and not including any Contracts pursuant relate to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) obligations of AMCON or any Contract relating to Indebtedness AMCON Subsidiary for borrowed money or other indebtedness where the amount of such obligations exceeds $6,000,000 individually, (ii) the Company lease by AMCON or its Subsidiaries any AMCON Subsidiary, as lessee or to lessor, of real property for rent of more than $6,000,000 per annum, (iii) the placing purchase or sale of a Lien goods (other than a Permitted Lienraw material to be purchased by AMCON on terms that are customary and consistent with the past practice of AMCON and in amounts and at prices substantially consistent with past practices of AMCON) on any material assets or properties services with an aggregate minimum purchase price of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operatesmore than $6,000,000 per annum, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) rights to manufacture and/or distribute any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, product which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from accounted for more than $45,000,000 of the Company or consolidated revenues of AMCON and its Subsidiaries during the fiscal year ended September 30, 2000 or under which AMCON or any AMCON Subsidiary received or paid license or other fees in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than during any Non-Scheduled Contracts);
year, (v) the purchase or sale of assets or properties not in the ordinary course of business having a purchase price in excess of $6,000,000, (vi) the right (whether or not currently exercisable) to use, license (including any Contract that "in-license" or "outlicense"), sublicense or otherwise exploit any intellectual property right or other proprietary asset of AMCON or of any of Subsidiary of AMCON or any other Person which, is material to AMCON; (vii) any material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of AMCON or any Subsidiary of AMCON (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closingother Person, (B) contains to acquire any exclusivityproduct or other asset or any services from any other Person, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting to solicit, hire or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of retain any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryas an employee, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xviD) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person; (ix) any employment currency hedging; or consulting Contract with severance, change in control, retention (x) individual capital expenditures or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries commitments in excess of $300,000 6,000,000. All such contracts and agreements are duly and validly executed by AMCON or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties theretosuch AMCON Subsidiary, and is are in full force and effect and enforceable in accordance with its terms against the Company or all material respects. Neither AMCON nor any of its Subsidiaries has violated or breached, or committed any default under, any contract or agreement, and, to the Company’s Knowledgeknowledge of AMCON, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium no other Person has violated or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofbreached, or committed any default under, any contract or agreement, which violation, breach or default (alone or in combination with other violations, breaches or defaults under such contract or agreement or under other contracts or agreements) has had or may reasonably be expected to have an AMCON Material Contract and (iii) no Adverse Effect. No event has occurred that (with or without due which, after notice or lapse the passage of time or both, would constitute a default by AMCON or any Subsidiary of AMCON under any contract or agreement or give any Person the right to (A) would result declare a default or exercise any remedy under any contract or agreement, (B) receive or require a rebate, chargeback, penalty or change in a material breach ofdelivery schedule under any contract or agreement, (C) accelerate the maturity or performance of any contract or agreement, or default under(D) cancel, terminate or modify any Material Contract by the Company contract or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatagreement, in each casecase which, do not contain any together with all other events of the types referred to in clauses (A), (B), (C) and (D) of this sentence has had or may reasonably be expected to have an AMCON Material Adverse Effect. All such contracts and agreements will continue, after the Effective Time, to be binding in all material executory or continuing terms, conditions, obligations or rights)respects in accordance with their respective terms until their respective expiration dates.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Hawaiian Natural Water Co Inc), Merger Agreement (Amcon Distributing Co), Merger Agreement (Hawaiian Natural Water Co Inc)
Material Contracts. (a) Section 3.13(a) of Except for this Agreement, the Company Disclosure Schedule contains a listing Benefit Plans, the OpCo Spin-Off Agreements and agreements filed as exhibits to the Company SEC Documents (including, for the avoidance of all Contracts described in clauses (i) through (xiii) below doubt, those that are filed with the SEC at any time prior to whichthe date hereof and incorporated by reference thereto), as of the date of this Agreement, neither the Company or nor any of its Subsidiaries is a party to or bound by which they are bound(for avoidance of doubt, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant each of clauses (i) through (xii) below being subject to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) first sentence of the Company Disclosure Schedule, preamble to this Article III and shall only apply to the “Material Contracts”). True, correct and complete copies of the Contracts listed extent any Contract or arrangement referred to in clauses (i) through (xii) would be binding on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent PropCo or its agents or representatives, together with all amendments theretoSubsidiaries at the Effective Time):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) any material Contract relating that will be binding on PropCo or any of its Subsidiaries as of the Effective Time;
(iii) any Contract that involved individual or aggregate payments or consideration of more than $500,000 in the twelve-month period ended June 30, 2015, or is expected to Indebtedness involve individual or aggregate payments or consideration of more than $500,000 in the twelve-month period beginning June 30, 2015 (it being understood that the Company is not making any representation or warranty as to the actual amount of future payments that will be received under any such Contract), for borrowed money of goods and services furnished by or to the Company or its Subsidiaries or to the placing any of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(iiiv) any Company Real Property Leases having a remaining term of more than twelve (12) months and involving a payment of more than $100,000 annually;
(v) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the ClosingSubsidiaries has continuing material indemnification, (B) contains any exclusivity, “most favored nation” earnout or similar provisionsobligations to any third person, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict than those entered into in the ability ordinary course of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingbusiness consistent with past practice;
(vi) any Contract requiring any future for capital commitment or capital expenditure (or series expenditures involving payments of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) more than $1,000,000 over individually or in the life aggregate, by or on behalf of the agreementPropCo or any of its Subsidiaries;
(vii) any Contract requiring the Company involving a joint venture or its Subsidiaries to guarantee the Liabilities strategic alliance or partnership agreement or other sharing of profits or losses with any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000person;
(viii) any Contract relating to indebtedness under which the principal amount outstanding thereunder payable by the Company or any of its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of is greater than $200,000 or made any capital contribution to, or other investment in, any Person1,000,000;
(ix) any Contract required to be disclosed on Section 3.19 of containing covenants by the Company Disclosure Scheduleor any of its Affiliates not to (A) compete with any person or (B) engage in any line of business or activity in any geographic location, in each case that would be material to the Company;
(x) any Contract with any Person (A) pursuant to which the Company evidencing an outstanding loan, advance or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition investment by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make or in any payment or incur person (other than any Liability as a result other Subsidiary of the consummation Company) of more than $10,000,000 in the transactions contemplated by this Agreementaggregate (excluding trade receivables and advances to employees for normally incurred business expenses, termination each arising in the ordinary course of employment business consistent with past practice);
(xi) any Order or bothsettlement or conciliation agreement with any Governmental Entity; and
(xviixii) any other Contract involving the performance sale, transfer or acquisition of which requires either (A) annual payments to or from any business entered into by the Company or its Subsidiaries any Subsidiary of the Company in excess the three (3) years preceding the date of $300,000 this Agreement. All contracts of the types referred to in clauses (i) through (xii) above are referred to herein as a “Company Material Contract.”
(b) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (Bi) aggregate payments neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or from default under the terms of any Company Material Contract and (ii) each Company Material Contract is a valid and binding obligation of the Company or its Subsidiaries in excess of $1,500,000 over the life Subsidiary of the agreement and, in each caseCompany, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableparty thereto and, to the knowledge of the Company’s Knowledge, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, subject to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Remedies Exceptions.
Appears in 3 contracts
Sources: Merger Agreement (PNK Entertainment, Inc.), Merger Agreement (Pinnacle Entertainment Inc.), Merger Agreement (Gaming & Leisure Properties, Inc.)
Material Contracts. (a) Except for this Agreement, the Contracts filed as exhibits to the Company SEC Reports filed with the SEC prior to the date of this Agreement and as set forth on Section 3.13(a3.15(a) of the Company Disclosure Schedule contains Schedule, no Group Company is a listing party to, and no Group Company’s properties or assets are bound by, any of all the types of Contracts described listed in clauses (i) through (xiiixi) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities Section 3.15(a) (such types of Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, being the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any each Contract relating that would be required to Indebtedness for borrowed money be filed by the Company pursuant to Item 4 of the Company or its Subsidiaries or Instructions to Exhibits to the placing of a Lien (other than a Permitted Lien) Company’s most recently filed annual report on any material assets or properties of the Company or its SubsidiariesForm 20-F;
(ii) each Contract relating to any Contract under which Indebtedness in respect of any counterparty involving actual or potential liability to the Group Companies in excess of US$7,000,000 during any 12-month period, other than (x) Indebtedness receivable or payable solely between or among the Company’s wholly-owned Subsidiaries (including, for the purposes of this Section 3.15(a)(ii), the Operating Subsidiaries) or between or among the Company or and any of its wholly-owned Subsidiaries is lessee (including, for the purposes of or holds or operates, in each case, any tangible property (other than real propertythis Section 3.15(a)(ii), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000Operating Subsidiaries) and (y) accounts receivable and payable incurred in the ordinary course of business consistent with past practice;
(iii) any each Contract under which the Company or its Subsidiaries is lessor in respect of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharingstrategic cooperation or collaboration arrangement, partnership, collaboration, co-promotion, commercialization joint sales or research or development Contractmarketing agreement, or similar Contractpartnership arrangement, in each case, which requires, or would reasonably be expected that is material to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life business of the Contract Group Companies taken as a whole or (B) other agreement involving a sharing of profits, losses, costs or liabilities by any Group Company that is material to the business of the Group Companies taken as a whole;
(iv) each of the Contracts described under the caption “Item 4. Information on the Company—C. Organizational Structure” in the Company’s most recently filed annual report on Form 20-F, which (A) provide the Company with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a majority of the equity interests (each, an “Operating Subsidiary”), (B) provide any Group Company the right or option to purchase the equity interests in any Operating Subsidiary, or (C) transfer economic benefits from any Operating Subsidiary to any other Subsidiary of the Company (the contracts and agreements described in (A), (B) and (C), together, the “Control Agreements”);
(v) each Contract with respect pursuant to which the Company or any of its Subsidiaries (A) receives or is granted any license to any material Company Licensed Intellectual Property (other than any Nonnon-Scheduled Contractsexclusive license to off-the-shelf Software generally available on non-discriminatory pricing terms and other than a non-exclusive license granted in the ordinary course of the grantor’s business) or (B) grants any license to any material Intellectual Property (other than a non-exclusive license granted in the ordinary course of the grantor’s business), or each other Contract relating to Intellectual Property or IT Assets not covered by the foregoing (A) or (B) that is material to the Company and its Subsidiaries, taken as a whole;
(vvi) any each Contract that involves the acquisition or disposition, directly or indirectly (Aby merger, license or otherwise), of any securities of any person (other than a Company Share Award) limits or any assets that have a fair market value or purchase price of more than US$3,000,000;
(vii) each Contract (including any distribution agreements) that limits, or purports to limit, in the ability of any material respect, the freedom of the Group Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or during any period of time in a manner that would so limit or purport is material to limitthe Group Companies, in any material respecttaken as a whole, the operations of Parent or any of its Affiliates after the ClosingContract that grants any exclusive rights to any third party (including any exclusive license or exclusive distribution or usage arrangements) if such Contract, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations exclusive rights or restrictions or (C) contains any other provisions restricting or purporting resulting therefrom are material to restrict the ability of the Company or its Subsidiaries to sellGroup Companies, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or taken as a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000whole;
(viii) each Contract between any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its SubsidiariesGroup Company, on the one hand, and any labor union, labor organization directors or works council representing employees officers of any Group Company or their immediate family members or shareholders (other than Parent) of any Group Company holding more than 5% of the Company or its Subsidiariesvoting securities of any Group Company, on the other hand, under which there are material rights or obligations outstanding;
(xivix) each Contract providing for any Contract with the earn-out or similar payment payable by any Group Company or its Subsidiaries, on the one hand, and to any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates person (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentother than to another Group Company);
(xvx) each Contract providing for any employment, consulting, bonus, commissions change of control or similar payments to any Third Party in excess of US$2,500,000;
(xi) each Contract involving payments by the Company or any of its Subsidiaries in excess of US$7,000,000 in the aggregate under each Contract, other compensation than payments between or among the Company’s wholly-owned Subsidiaries (including, for the purposes of this Section 3.15(a)(xi), the Operating Subsidiaries) or between or among the Company and any of its wholly-owned Subsidiaries (including, for the purposes of this Section 3.15(a)(xi), the Operating Subsidiaries);
(xii) each Contract relating to any capital expenditure or any disbursement Contract with an employee a contract value exceeding US$7,000,000;
(xiii) each Contract relating to a royalty or individual consultant or independent contractor, involving aggregate payments dividend arrangement that involves payment by the Company of more than $500,000 per year;
(xvi) any employment US$5,000,000 annually based on revenues or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) profits of the Company or any of its Subsidiaries or based on the revenues or profits derived from any material Contract;
(xiv) each share or stock redemption or purchase or other Contract affecting or relating to make any payment or incur any Liability as a result the share capital of the consummation Company or any of its Subsidiaries, including each Contract with any shareholder of the transactions contemplated by this AgreementCompany or any of its Subsidiaries which includes anti-dilution rights, termination voting arrangements or operating covenants;
(xv) each Contract under which the Company or any of employment its Subsidiaries has granted any Person any registration rights, or bothany right of first refusal, first offer or first negotiation with respect to any Ordinary Shares or securities of any Subsidiaries of the Company; and
(xviixvi) any other each Contract the performance of that contains a put, call or similar right pursuant to which requires either (A) annual payments to or from the Company or any of its Subsidiaries in excess of $300,000 could be required to purchase or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiariessell, as applicable, any equity interests of any Person.
(b) Except as would not, individually or in the aggregate, reasonably be expected to the have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of a Group Company’s Knowledge, the counterparties theretoas applicable, and is in full force and effect and enforceable against the such Group Company in accordance with its terms terms, subject to the Bankruptcy and Equity Exception, (ii) to the Company’s knowledge, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception, (iii) no Group Company or its Subsidiaries and, to the Company’s Knowledgeknowledge, the counterparties thereto (subject no counterparty, is or is alleged to applicable bankruptcy, insolvency, reorganization, moratorium be in breach or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach violation of, or default under, any Material Contract and Contract, (iiiiv) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge, no person intends to terminate any Material Contract and (v) neither the counterparties theretoexecution of this Agreement nor the consummation of any Transaction shall constitute a material default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of any Group Company under any Material Contract. The Company has furnished or made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Alibaba Group Holding LTD), Merger Agreement (Ali YK Investment Holding LTD), Merger Agreement (Youku Tudou Inc.)
Material Contracts. (a) Except for this Agreement, Section 3.13(a4.17(a) of the Company Disclosure Schedule Letter contains a listing of all Contracts described in clauses (i) through (xiii) below to whichcomplete and correct list, as of the date hereof, of each Contract described in this Agreement, Section 4.17(a) under which the Company or its Subsidiaries any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which the Company or any Company Subsidiary is a party or by to which they are boundany of their respective properties or assets is subject, other than a any Company Benefit PlanPlans (all Contracts of the type described in this Section 4.17(a), and that are whether or not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) 4.17 of the Company Disclosure ScheduleLetter, the being referred to herein as “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any each Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted LienCompany Leases) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, respect the freedom of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its Subsidiaries affiliates after the Effective Time) to compete or engage or compete in any line of business or geographic region or with any Person or in sell, supply or distribute any area product or service or that would so limit or purport to limit, otherwise has the effect of restricting in any material respectrespect the Company, the operations of Company Subsidiaries or affiliates (including Parent or any of and its Affiliates affiliates after the ClosingEffective Time) from the development, (B) contains any exclusivity, “most favored nation” marketing or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability distribution of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customerproducts and services, in each case, in any geographic area;
(ii) any material respect partnership, strategic alliance, joint venture, collaboration 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 $1,000,000;
(iv) each Contract that provides for the Company or any Company Subsidiary to obtain a service, license, product, product line, operations or line of business from any Person (including any of the Material Suppliers) that involves annual payments or consideration in excess of $2,000,000, or that would so limit or purports contains any minimum purchase commitments in excess of $2,000,000 annually;
(v) each Contract that gives any Person the right to limit, in acquire any material respect, Parent assets of the Company or any of its Affiliates Company Subsidiary (excluding ordinary course commitments to purchase goods or products) after the Closingdate hereof with consideration of more than $1,000,000;
(vi) any settlement or similar Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementwith a Governmental Entity, other than those relating to Taxes;
(vii) any Contract requiring the Company or its Subsidiaries except as has not been, and would not reasonably be expected to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orbe, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, any settlement or similar Contract restricting in any 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);
(viii) each Contract (other than Company Leases) not otherwise described in any other subsection of this Section 4.17(a) pursuant to which the Company or any Company Subsidiary has paid or received payments in excess of $2,000,000 in the fiscal year ended February 1, 2025, or is obligated to pay or entitled to receive payments in excess of $2,000,000 in the twelve (12) month period following the date hereof, other than Contracts solely between the Company and a wholly owned Company Subsidiary or solely between wholly owned Company Subsidiaries;
(ix) any Contract that obligates the Company or any Company Subsidiary to make any capital investment or capital expenditure outside the ordinary course of business and in excess of $1,000,000 per annum;
(x) except where the exercise of any such right or imposition of such limitation has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, each Contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Company Subsidiary or any of its affiliates (including Parent or any of its affiliates after the Effective Time) to own, operate, sell, transfer, pledge or otherwise dispose of any businesses or assets;
(xi) each Contract that contains any exclusivity rights or “most favored nations” provisions, in each case, that are material in any respect to the Company or its affiliates (including Parent or its affiliates after the Effective Time);
(xii) each Contract governing any collaboration, co-promotion, strategic alliance or design project contract which, in each case, is material to the Company and the Company Subsidiaries, taken as a whole;
(xiii) each Contract evidencing or relating to outstanding Indebtedness (or commitments in respect thereof) of the Company or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $200,000 1,000,000 other than Contracts solely between the Company and a wholly owned Company Subsidiary or made any capital contribution to, or other investment in, any Personbetween wholly owned Company Subsidiaries;
(ixxiv) any each Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or any Company Subsidiary grants or receives any license, option, waiver, covenant not to assert or similar right with respect to Intellectual Property that is material to the businesses of the Company and the Company Subsidiaries, taken as a whole, or agrees to limit its use or exploitation of any material Company IP in any material respect, including pursuant to any settlement agreement, coexistence agreement or similar arrangement, other than (A) non-exclusive licenses granted to the Company or Company Subsidiaries (for generally available Software or Parent or any of its Affiliates after the Closing) is or may be required to pay milestonesinformation technology services on substantially standardized terms, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or and (B) under Contracts that otherwise constitute Material Contracts identified on Section 4.17 of the Company Disclosure Letter and in which the grants of rights to use Intellectual Property are incidental to performance thereunder;
(xv) each Contract between the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its SubsidiariesSubsidiary, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the director or affiliate (other than a wholly owned Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingentSubsidiary) of the Company or any Company Subsidiary, any beneficial owner, directly or indirectly, of its Subsidiaries to make any payment or incur any Liability as a result more than five percent (5%) of the consummation shares of Company Common Stock or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the transactions contemplated by this AgreementExchange Act), termination of employment on the other hand, including any Contract pursuant to which the Company or bothany Company Subsidiary has an obligation to indemnify such officer, director, affiliate, beneficial owner or family member;
(xvi) each Contract with a Material Supplier; and
(xvii) 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 SEC) with respect to the Company (other than those agreements and arrangements described in Item 601(b)(10)(iii) of Regulation S-K of the SEC).
(b) True and complete copies of each Material Contract in effect as of the performance date hereof have 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 which requires either (A) annual payments or default under the terms of any Material Contract, except as has not had and would not reasonably be expected to have, individually or from in the aggregate, a Company Material Adverse Effect. To the Company’s Knowledge, as of the date hereof, no other party to any Material Contract is in breach of or default under the terms of any Material Contract where such breach or default has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as 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 Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement Subsidiary which is party thereto and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties of each other party thereto, and is in full force and effect effect, subject to the Enforceability Limitations and enforceable any expiration thereof in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect existing as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain without any material executory or continuing terms, conditions, obligations or rights)breach.
Appears in 3 contracts
Sources: Merger Agreement (Dick's Sporting Goods, Inc.), Agreement and Plan of Merger (Foot Locker, Inc.), Merger Agreement (Dick's Sporting Goods, Inc.)
Material Contracts. (a) Section 3.13(a) 5.13 of the Company Contributor Disclosure Schedule contains provides a listing true and complete list of all Contracts described each Contract in clauses (i) through (xiii) below to which, as one or more of the date of this Agreementfollowing categories, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which Contributor is party and which relate primarily to (x) the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) operation of the Company Disclosure ScheduleBusiness, or (y) any of the Contributed Assets (collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating All Real Property Leases, Personal Property Leases, Insurance Policies, Contracts required to Indebtedness for borrowed money be listed on Section 5.7(k) of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesContributor Disclosure Schedule and Governmental Approvals;
(ii) Any Contract for capital expenditures or for the purchase of goods or services such as would require Company to make payment(s) in excess of $100,000 with respect to any Contract under which twelve (12) month period following the Company Closing (excluding any Contributor Benefit Plan or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real propertyemployment-related Contracts), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000[Reserved];
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization Any Contract involving financing or research or development Contractborrowing of money, or similar Contractevidencing indebtedness for borrowed money, any obligation for the deferred purchase price of property or guaranteeing in any way any Contract in connection with any Person, in each case, which requires, or case such as would reasonably be expected require Company to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries make payment(s) in excess of $1,000,000 over the life of the Contract or (B) other Contract 100,000 with respect to material Company Licensed Intellectual Property any twelve (other than any Non-Scheduled Contracts12) month period following the Closing (excluding normal trade payables);
(v) Any joint venture, partnership, cooperative arrangement or any other Contract involving a sharing of profits (except for the Transaction Agreements and the Astellas Agreement);
(vi) Any material Contract with any Governmental Authority;
(vii) Any Contract with respect to the discharge, storage or removal of effluent, waste or pollutants;
(viii) Any Contract relating to any license or royalty arrangement that provides for noncontingent annual payments by Contributor in excess of $100,000, except any such noncontingent payment(s) such as would not exceed $100,000 with respect to any twelve (A12) limits month period following the Closing;
(ix) Any power of attorney, proxy or purports similar instrument;
(x) Any Contract with any Affiliate of Contributor (other than any Contributor Benefit Plan or other employment-related Contracts);
(xi) Any Contract for the manufacture, service or maintenance of any product of the Business including CROs, research agreements and finding agreements;
(xii) Any Contract for the purchase or sale of any amount of assets other than in the ordinary course of business or for the option or preferential rights to limit, in purchase or sell any material respect, amount of assets other than in the freedom ordinary course of business;
(xiii) Any Contract to indemnify any Person or to share in or contribute to the Company or its Subsidiaries liability of any Person other than standard non-material form indemnity agreements that have been entered into in the ordinary course of business;
(xiv) Any Contract containing covenants not to engage or compete which materially restrict the Contributor from competing in any line of business or with any Person or in any area geographical area;
(xv) Any Contract related to the acquisition of a business or the equity of any other Entity to the extent that it relates to the Business;
(xvi) Any other Contract (other than any Contributor Benefit Plan or other employment-related Contracts) (A) such as would so limit or purport require Company to limit, make payment(s) in excess of $100,000 with respect to any material respect, the operations of Parent or any of its Affiliates after twelve (12) month period following the Closing, ; and (B) contains is not terminable without payment or penalty on thirty (30) days (or less) notice.
(xvii) Any other Contract (other than any exclusivityContributor Benefit Plan or other employment-related Contracts) that involves future payments, “most favored nation” performance of services or similar provisions, obligations delivery of goods or restrictions materials to or (C) contains any other provisions restricting or purporting to restrict the ability of by Contributor such as would require the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or make payment(s) in excess of $100,000 with respect to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after twelve (12) month period following the Closing;
(vixviii) any Any Contract requiring any future capital commitment or capital expenditure related to tools, machinery, equipment and personal property with ongoing performance obligations that is not already identified under clauses (or series of capital expendituresii), (xvi) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (Bxvii) $1,000,000 over and exceeds the life of the agreementdollar thresholds set forth therein;
(viixix) any Contract requiring Any Contact within or needed in the ordinary course of the Business not already identified in clauses (i) through (xviii) which would require Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiarymake non-contingent payment(s) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights 100,000 with respect to any material Company Product or any material Intellectual Property;
twelve (xi12) any Contract for month period following the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person Closing (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent Contributor Benefit Plan or any of its Affiliates after the Closingother employment-related Contracts); and
(xiiixx) each collective bargaining agreement or other Any proposed arrangement of a type that, if entered into, would be a Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or described in any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
i) through (xvxviii) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeabove.
(ib) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company Contributor has made available to Parent true Company accurate, correct and complete copies of all Material Contracts in effect as (or written summaries of the date hereof material terms thereof, if not in writing), including all material amendments, supplements, modifications and waivers thereof. All Material Contracts are in writing.
(c) Each Contributor Contract is currently valid and in full force and effect, and, is enforceable by Contributor in accordance with its terms, except (i) as enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws affecting the rights of creditors generally and general equitable principles (whether considered in a proceeding in equity or at law), and (ii) as the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of a court of competent jurisdiction before which any proceeding may be brought.
(d) Contributor is not in material default, and no party has provided written notice to Contributor that it is in material default, under any Contributor Contract. No event has occurred that might (with or without notice or lapse of time) (i) result in any material violation or breach, by Contributor, of any of the provisions of any Contributor Contract; (ii) give any Person other than purchase ordersContributor the right to declare a default or exercise any remedy under any Contributor Contract; (iii) give any Person the right to accelerate the maturity or performance of any Contributor Contract or to cancel, invoicesterminate or modify any Contributor Contract; or (iv) otherwise have a Material Adverse Effect on Contributor in connection with any Contributor Contract. Contributor has not waived any material rights which relate to the Business or Contributed Assets of the agreements described in Section 5.13(a)(i) through 5.13(a)(xx) hereof.
(e) To the Knowledge of Contributor, each Person against which Contributor has or may acquire any rights under any Contributor Contract is (i) not in material breach of, and similar confirmatory has not threatened in writing to be in breach of, the Contributor Contract to which such Person is a party; (ii) solvent; and (iii) able to satisfy such Person’s material obligations and Liabilities to Contributor.
(f) The performance of the Contributor Contracts will not result in any violation of or administrative documents that are ancillary failure by Contributor to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain comply with any material executory or continuing terms, conditions, obligations or rights)Legal Requirement.
Appears in 3 contracts
Sources: Asset Contribution Agreement, Asset Contribution Agreement (Maxygen Inc), Asset Contribution Agreement (Maxygen Inc)
Material Contracts. (a) Section 3.13(a) Except for the implementation of the Company Disclosure Schedule contains a listing of all Contracts described any Reorganization in clauses substantial conformity with its respective Reorganization Plan: (i) through enter into any Contract, or amend or modify (xiiiincluding by entering into a new Contract with such party or otherwise) below to which, as or waive any of the date material terms of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) Material Contract outside of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
Ordinary Course; (ii) enter into any Contract, that would, if entered into prior to the date hereof, be a Material Contract under which of the Company or its Subsidiaries is lessee of or holds or operates, type described in each case, any tangible property (other than real propertySections 2.15(a)(iii), owned by any other Person(iv), except for any lease (v), or agreement under which the aggregate annual rental payments do not exceed $500,000;
(vi); (iii) enter into, amend, modify or terminate any Contract under or waive, release or assign any rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would be reasonably likely to (X) adversely affect the Company or and its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(ivtaken as a whole) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (BY) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict impair the ability of the Company or its Subsidiaries Sellers to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually perform their respective obligations under this Agreement or (BZ) $1,000,000 over prevent or materially delay or impair the life completion of the agreement;
Transactions; (viiiv) enter into any Material Contract requiring with up-front cash payments outside the Company Ordinary Course; or its Subsidiaries to guarantee the Liabilities of (v) extend or terminate any Person Material Contract (other than renewals upon expiration in the Company Ordinary Course or a Subsidiary) termination upon the expiration of the term thereof or pursuant to which any Person (other than by the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryapplicable counterparty); provided, that, in each case this Section 5.2(d) shall not require the Company to seek or obtain Parent’s consent in excess of $200,000;
(viii) any Contract under order to set or change the prices at which the Company sells products or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advanceprovides services, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually enter into or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) amend any Contract for the disposition sale of any portion products or provision of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made services, in each case on commercially reasonable terms and in the Ordinary Course so long as such Contract is not or would not be (if entered into prior to the Agreement) a Material Contract under Section 2.15(a)(v); provided, further, that, for purposes of Businessthis Section 5.2(d), the thresholds in Section 2.15(a)(i) shall be deemed to be $5,000,000 for an individual Contract or under which $10,000,000 in the aggregate for related Contracts in any fiscal year. Enter into any Contract, or amend or modify (including by entering into a new Contract with such party or otherwise) or waive any of the material terms of any Contract involving a license of Intellectual Property that is material to the Company or and its Subsidiaries has any continuing obligation with respect which (i) would restrict the Company’s ability to an “earn-out,” contingent purchase price license or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority use such Intellectual Property or (Cii) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent involves consideration or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract material terms that are not consistent with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees past ordinary course commercial practices of the Company or and its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 3 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement, Share Purchase Agreement (Nvidia Corp)
Material Contracts. (a) Except for this Agreement, Section 3.13(a4.17(a) of the Company Disclosure Schedule Letter contains a listing of all Contracts described in clauses (i) through (xiii) below to whichcomplete and correct list, as of the date hereof, of each Contract described in this Agreement, Section 4.17(a) under which the Company or its Subsidiaries any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which the Company or any Company Subsidiary is a party or by to which they are boundany of their respective properties or assets is subject, in each case, as of the date hereof, other than a any Company Benefit PlanPlans (all Contracts of the type described in this Section 4.17(a), and that are whether or not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a4.17(a) of the Company Disclosure ScheduleLetter, the being referred to herein as “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, respect the freedom of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its Subsidiaries affiliates after the Effective Time) to compete or engage or compete in any line of business or geographic region or with any Person or in sell, supply or distribute any area product or service or that would so limit or purport to limit, otherwise has the effect of restricting in any material respectrespect the Company, the operations of Company Subsidiaries or affiliates (including Parent or any of and its Affiliates affiliates after the ClosingEffective Time) from the development, (B) contains any exclusivity, “most favored nation” marketing or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability distribution of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customerproducts and services, in each case, in any geographic area;
(ii) any material respect joint venture or limited liability company agreement (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries) or similar material Contract;
(iii) each acquisition or divestiture Contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would so limit reasonably be expected to result in the receipt or purports to limitmaking by the Company or any Company Subsidiary of future payments in excess of $250,000, in each case, excluding any (x) post-closing retention payments or equity awards, and (y) amounts retained pursuant to customary indemnity escrow or holdback arrangements;
(iv) each Contract that gives any Person the right to acquire any assets of the Company or any Company Subsidiary (excluding sales of inventory in the ordinary course of business) after the date hereof with consideration of more than $100,000;
(v) any material respectsettlement or similar Contract with a Governmental Entity, Parent other than those relating to (x) Taxes, or (y) any Contract with a Governmental Entity in its capacity as a customer of the Company or any of its Affiliates after the ClosingSubsidiaries;
(vi) any settlement or similar Contract requiring restricting in any future capital commitment material respect the operations or capital expenditure (or series conduct of capital expenditures) by the Company or any Company Subsidiary or any of their respective affiliates (including Parent and its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over affiliates after the life of the agreementEffective Time);
(vii) any each Contract requiring pursuant to which the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company Subsidiary has paid or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case received payments in excess of $200,000100,000 in the 12-months ended March 31, 2025, or is obligated to pay or entitled to receive payments in excess of $100,000 in the twelve (12)-month period following the date hereof, in each case, other than (A) Contracts solely between the Company and a wholly owned Company Subsidiary or solely between wholly owned Company Subsidiaries, (B) Contracts with customers, suppliers or vendors of the Company or any Company Subsidiary, (C) Company Leases and (D) Contracts otherwise described in any other subsection of this Section 4.17(a);
(viii) each Contract that is (A) a Contract with a Material Customer, (B) a Material Supplier Agreement, or (C) with a Governmental Entity, providing for or contemplating payments of more than $500,000 over the life of such Contract;
(ix) each Contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Company Subsidiary or any of its affiliates (including Parent or any of its affiliates after the Effective Time) to own, operate, sell, transfer, pledge or otherwise dispose of any businesses or assets;
(x) each Contract under which that contains any exclusivity rights or “most favored nations” provisions or minimum use or supply requirements, in each case, that are binding on the Company or its Subsidiaries has, directly affiliates (including Parent or indirectly, made its affiliates after the Effective Time);
(xi) each Contract not otherwise described in any other subsection of this Section 4.17(a) evidencing outstanding Indebtedness (or agreed to make any loan, advance, or assignment of payment to any Person outside commitments in respect thereof) of the Ordinary Course of Business orCompany or any Company Subsidiary (whether incurred, individually assumed, guaranteed or in the aggregate, secured by any asset) in an amount in excess of $200,000 250,000 other than Contracts solely between the Company and a wholly owned Company Subsidiary or made any capital contribution to, or other investment in, any Personsolely between wholly owned Company Subsidiaries;
(ixxii) any each Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries any Company Subsidiary (A) grants any license, covenant not to assert, release, agreement not to enforce or Parent or any of its Affiliates after the Closing) is or may be required to pay milestonesprosecute, royalties or other contingent payments based on immunity to any researchPerson under or to any Company Intellectual Property Rights, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company is granted a license, covenant not to assert, release, agreement not to enforce or its Subsidiaries grants prosecute, or immunity to or under, any Person any right of first refusalPerson’s Intellectual Property Rights that, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course case of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract each of clauses (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, and (B) with above, is not a Governmental Authority or (C) that imposes any material, nonNon-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andScheduled License;
(xiii) each collective bargaining agreement or other Contract with between the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its SubsidiariesSubsidiary, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate director or affiliate (other than a wholly owned Company Subsidiary) of the Company or its Subsidiaries any Company Subsidiary, any beneficial owner, directly or indirectly, of more than five percent (5%) of the shares of Company Common Stock or any of their respective Affiliates “associates” or “immediate family” members (excluding employee confidentiality as such terms are defined in Rule 12b-2 and invention assignment agreementsRule 16a-1 of the Exchange Act), equity on the other hand, including any Contract pursuant to which the Company or incentive equity documentsany Company Subsidiary has an obligation to indemnify such officer, director, affiliate, beneficial owner or family member;
(xiv) each Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)Lease involving annual lease payments in excess of $250,000;
(xv) any employment, consulting, bonus, commissions or Contract not otherwise described in any other compensation Contract subsection of this Section 4.17(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with an employee or individual consultant or independent contractor, involving aggregate payments respect to the Company (other than those agreements and arrangements described in Item 601(b)(10)(iii) of more than $500,000 per year;Regulation S-K of the SEC).
(xvib) True and complete copies of each Material Contract in effect as of the date hereof have been publicly filed with the SEC prior to the date hereof or have been made available to Parent. Neither the Company nor any employment Company Subsidiary is in material breach of or consulting default under the terms of any Material Contract. To the Company’s Knowledge, as of the date hereof, no other party to any Material Contract with severanceis in material breach of or default under the terms of any Material Contract. Each Material Contract is a valid, change in control, retention or similar arrangements, that will result in any binding and enforceable obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement Subsidiary which is party thereto and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties of each other party thereto, and is in full force and effect effect, subject to the Enforceability Limitations and enforceable any expiration thereof in accordance with its terms against existing as of the date hereof. As of the date of this Agreement, neither the Company nor any Company Subsidiary has received written notice of the intention or its Subsidiaries anddesire of any party to terminate, cancel, not renew or modify any Material Contract in any material respect. As of the date of this Agreement, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties applicable Company Subsidiary Member or any other party or parties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as As of the date hereof (other than purchase ordersof this Agreement, invoicesneither the Company nor any Company Subsidiary has received any written notice regarding any actual material violation or breach of, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatmaterial default under, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (CoreCard Corp), Merger Agreement (Euronet Worldwide, Inc.), Merger Agreement (CoreCard Corp)
Material Contracts. (a) Section 3.13(a) Except for this Agreement or as filed or publicly furnished with the SEC prior to the date hereof, none of the Company Disclosure Schedule contains or any Company Subsidiary is a listing of all Contracts described in clauses (i) through (xiii) below party to whichor is bound by, as of the date hereof, any written contract or other agreement which is a “material contract” (as such term is defined in Item 601(b)(10) of this Agreement, Regulation S-K under the Securities Act) to the Company or its Subsidiaries (each contract that is described in this Section 5.10(a) being a party or by which they are bound, other than a “Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material ContractsContract”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):.
(ib) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orExcept as, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution tohas not had and would not reasonably be expected to have a Company Material Adverse Effect, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each each Company Material Contract is valid and binding on the Company or its Subsidiaries, as applicable(and/or each such Company Subsidiary party thereto) and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and (ii) each Company Material Contract is in full force and effect and (except for expiration thereof in the ordinary course in accordance with the terms thereof), enforceable against the Company or each such Company Subsidiary party thereto, as the case may be, in accordance with its terms against the Company or its Subsidiaries andterms, to the Company’s Knowledgeexcept, the counterparties thereto (subject to applicable in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles of equity), equity and (iiiii) neither the Company or its nor any of the Company Subsidiaries andthat is a party thereto, nor, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not any other party thereto, is in material breach of, or default under, any such Company Material Contract and (iii) Contract, and, to the Knowledge of the Company, no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute such a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries any of the Company Subsidiaries, or, to the Knowledge of the Company’s Knowledge, the counterparties any other party thereto, or permit termination, material modification or acceleration by any third party thereunder. The Company has made available to Parent true and complete copies of all Material Contracts in effect as As of the date hereof (other than purchase ordershereof, invoices, and similar confirmatory neither the Company nor any of the Company Subsidiaries has received any written notice of termination or administrative documents that are ancillary to the main contractual relationship between the parties to a particular cancelation under any Company Material Contract or group received any written notice of Contracts and breach of or any default under any Company Material Contract which breach has not been cured, except for any termination, breach or default that, individually or in each casethe aggregate, do has not contain any material executory or continuing terms, conditions, obligations or rights)had and would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization (Brookfield Renewable Partners L.P.), Agreement and Plan of Reorganization (TerraForm Power, Inc.), Agreement and Plan of Reorganization (TerraForm Power, Inc.)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as As of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(aSchedule 4.11(a) of Seller’s Disclosure Schedules lists each of the Company Disclosure Schedulefollowing Contracts of the Companies and the Transferred Subsidiaries (collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Any Contract relating to any Indebtedness for borrowed money in excess of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries$7,500,000;
(ii) Any written employment, severance, termination, employee-like consulting or retirement Contract for any Contract under which Employee providing for annual compensation in excess of $375,000 (excluding discretionary bonuses) or with respect to the Company employment of, severance, retention or its Subsidiaries is lessee of or holds or operates, in each casepayment to, any tangible property of its directors and executive officers;
(iii) Any Contract entered into within the last three years relating to the acquisition or disposition of any business or assets (whether by merger, sale of stock, sale of assets or otherwise) contemplating an exchange of value in excess of $3,750,000;
(iv) Any Contract that limits or purports to limit the manner in which, the duration for which or the localities in which its business is or could be conducted or the types of business that it conducts or may conduct other than pursuant to engagement letters entered into in the ordinary course of business;
(v) Any material Contract pursuant to which (1) the Companies or the Transferred Subsidiaries grant a license to Intellectual Property owned by the Companies or their respective Subsidiaries to a third party or (2) the Companies or the Transferred Subsidiaries license Intellectual Property from a third party (other than real propertylicenses for commercial “off-the-shelf” or “shrink-wrap” software);
(vi) Any Contract relating to the settlement of any Action within the past three years with any Governmental Authority (regardless of amount);
(vii) Any Contract containing a covenant not to compete;
(viii) Any Contract with any Affiliate of Seller (other than the Companies or the Transferred Subsidiaries) involving any amount or obligation in excess of $1,000,000;
(ix) Any Contract (including any so-called take-or-pay or keepwell agreements) under which (A) any person has directly or indirectly guaranteed indebtedness, liabilities or obligations of any Company or a Transferred Subsidiary or (B) any Company or a Transferred Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any person, (in each case other than endorsements for the purpose of collection in the ordinary course of business), owned by in any other Personsuch case which, except for any lease or agreement under which the aggregate annual rental payments do not exceed individually, is in excess of $500,000;
(iiix) any Any Contract under which the any Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries Transferred Subsidiary has, directly or indirectly, made or agreed to make any loan, advance, loan or assignment extension of payment credit to any Person outside of the Ordinary Course of Business or, individually or in the aggregateperson, in an amount any such case which, individually, is in excess of $200,000 or made 3,750,000 other than any capital contribution to, or other investment in, any Person;
(ix) any such Contract required to be disclosed on Section 3.19 entered into in the ordinary course of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertybusiness;
(xi) any Any Contract providing for the disposition indemnification of any portion of the assets person with respect to material liabilities relating to any current or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or former business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationTransferred Subsidiary;
(xii) Any Contract for any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)joint venture; and
(xiii) each collective bargaining agreement or Any Contract other Contract with the than as set forth above to which any Company or its Subsidiaries, on the one hand, and any labor union, labor organization Transferred Subsidiary is a party or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company by which it or any of its Subsidiaries to make any payment assets or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment businesses is bound or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, subject that is not terminable by material to its business or the applicable the Company use or operation of its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeassets.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Raymond James Financial Inc), Stock Purchase Agreement (Regions Financial Corp)
Material Contracts. (a) Section 3.13(a) of Other than the Company Disclosure Schedule contains Transaction Documents, documents in connection with the Permitted Indebtedness, Existing Indebtedness and Existing Security and those Contracts as Disclosed in the Target SEC Filings, no Group Member is a listing of all Contracts described in clauses (i) through (xiii) below to whichparty to, or bound by as of the date of this Agreementsuch representation is being made, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Material Contract (as defined below). The following Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required shall be deemed to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto)::
(i) any Contract relating to Indebtedness for borrowed money entered into otherwise than in the ordinary course of business, including the Company or its Subsidiaries or to Service Agreements with the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesPartners;
(ii) any Contract under which the Company agreement or arrangement otherwise than by way of negotiation at arm’s length having a total contract value greater than US$10,000,000 (or its Subsidiaries is lessee of or holds or operates, equivalent in each case, any tangible property (other than real propertycurrencies), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any sale or purchase option or similar Contract under which the Company or its Subsidiaries is lessor of or permits arrangement affecting any third party to hold or operate, in each case, any tangible property (other than real property), material Assets owned or controlled used by the Company any Group Member or its Subsidiaries, except for by which any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Group Member is bound;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization Contract which cannot readily be fulfilled or research performed by any Group Member on time or development Contract, without undue or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess unusual expenditure of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)US$1,000,000;
(v) any Contract that (A) limits which Issuer Group does not have the technical and other capabilities or purports the human and material resources to limitenable it to fulfill, perform and discharge all its outstanding obligations in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line ordinary course of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations without realizing a loss of Parent or any at least US$1,000,000 on closing of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingperformance;
(vi) any Contract requiring substantially restricting the freedom of any future capital commitment Group Member to provide and take goods and services or capital expenditure (or series of capital expenditures) to manage its own business affairs by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementsuch means and from and to such persons as it may from time to time think fit;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which (a) any Person Group Member incurs Indebtedness with the aggregate amount of principal and interest payments greater than US$10,000,000 or (other than the Company or a Subsidiaryb) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000any Group Member provides any guarantee;
(viii) any Contract under which the Company whereby any Group Member is, or its Subsidiaries has, directly or indirectly, made or has agreed to make become, a member of any loanjoint venture, advance, consortium or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, partnership or other investment in, any Personunincorporated association;
(ix) any Contract required whereby any Group Member is, or has agreed to be disclosed on Section 3.19 of the Company Disclosure Schedulebecome, a party to any distributorship or agency agreement;
(x) any Contract with that is void, illegal, unenforceable or which contravene any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertyapplicable laws and regulations;
(xi) any Contract for that prohibits or materially restricts the disposition sale, disposal or transfer of any portion of the assets Equity Securities (or business of the Company or its Subsidiaries or for the acquisition any interests therein) owned by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationTarget;
(xii) any settlementshareholder agreements, conciliation joint venture agreements or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andpartnership agreements;
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment contracts or consulting Contract arrangements with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) senior managers of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothTarget; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 3 contracts
Sources: Note Subscription Agreement, Note Subscription Agreement (Cheng Zheng), Note Subscription Agreement (Cheng Zheng)
Material Contracts. Except for the Organization Documents of the Loan Parties and the other agreements set forth on Schedule 6.22 as of the Closing Date there are no (a) Section 3.13(a) employment agreements covering the management of the Company Disclosure Schedule contains a listing of all Contracts described in clauses Borrower or any Subsidiary, (ib) through (xiii) below to which, as collective bargaining agreements or other labor agreements covering any employees of the date of this AgreementBorrower or any Subsidiary, (c) agreements for managerial, consulting or similar services to which the Company Borrower or its Subsidiaries any Subsidiary is a party or by which they are it is bound, (d) agreements regarding the Borrower or any Subsidiary, its assets or operations or any investment therein to which any of its equity holders is a party or by which it is bound, (e) real estate leases, licenses of IP Rights or other than a Company Benefit Plan, and that are not expired lease or have not been terminated and not including any Contracts pursuant license agreements to which the Company has with no material outstanding Borrower or executory obligations any Subsidiary is a party, either as lessor or Liabilities (such Contracts lessee, or as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent licensor or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien licensee (other than a Permitted Lienlicenses arising from the purchase of “off the shelf” products), (f) on any material assets customer or properties of the Company or its Subsidiaries;
(ii) any Contract under supply agreements to which the Company Borrower or its Subsidiaries any Subsidiary is lessee of or holds or operatesa party, in each case, any tangible property case with respect to the preceding clauses (other than real propertya), owned by any other Person(c), except for any (d), (e) and (f) solely to the extent the breach, default or the termination of such agreement, lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would license could reasonably be expected to require (based result in a material adverse effect on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract Product Development and Commercialization Activities or (Bg) any other Contract agreements or instruments to which the Borrower or any Subsidiary is a party, and the breach, nonperformance or cancellation of which, or the failure of which to renew, could reasonably be expected to have a Material Adverse Effect. Schedule 6.22 sets forth, with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant real estate lease agreement to which the Company or its Subsidiaries (or Parent Borrower or any of its Affiliates after the Closing) Subsidiary is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion a party as of the assets or business Closing Date, the address of the Company or its Subsidiaries or for subject property and the acquisition by the Company or its Subsidiaries annual rental (or, where applicable, a general description of the assets or business method of any other Person (other than acquisitions or dispositions made in computing the Ordinary Course of Businessannual rental), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the . The consummation of the transactions contemplated by this Agreement, the Loan Documents will not give rise to a right of termination in favor of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments party to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) any Material Contract. Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and (a) is in full force and effect and is binding upon and enforceable against the Borrower and its Subsidiaries party thereto and, to the knowledge of any Loan Party, all other parties thereto in accordance with its terms against terms, and (b) is not currently subject to any material breach or default by the Company Borrower or any Subsidiary or, to the knowledge of any Loan Party, any other party thereto. None of the Borrower nor any of its Subsidiaries has taken or failed to take any action that would permit any other Person party to any Material Contract to have, and, to the Company’s Knowledgeknowledge of any Loan Party, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default underno such Person otherwise has, any Material Contract defenses, counterclaims or rights of setoff thereunder (1) as of the Closing Date and (iii2) no event has occurred after the Closing Date that (with or without due notice or lapse of time or both) would could reasonably be expected to result in a material breach ofadverse effect on any Product Development and Commercialization Activities. As of the Closing Date, or default under, any Material Contract by none of the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof are non-assignable by their terms (other than purchase ordersthose certain agreements separately noted in Schedule 6.22 as being non-assignable) or as a matter of law, invoices, and similar confirmatory or administrative documents that are ancillary to prevent the main contractual relationship between the parties to granting of a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)security interest therein.
Appears in 3 contracts
Sources: Credit Agreement (Biocryst Pharmaceuticals Inc), Credit Agreement (Biocryst Pharmaceuticals Inc), Credit Agreement (Cti Biopharma Corp)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichEach contract, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company document or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
instrument (xivcollectively "SEC Contracts") any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of to which the Company or any of its Subsidiaries is a party that was required to make be filed as an exhibit to the Company's annual report on Form 10-K for the year ended July 31, 1997 was so filed and, neither the Company nor any payment of its Subsidiaries (A) has entered into, from and after July 31, 1997, any contract, agreement or incur other document or instrument (other than this Agreement) that is required to be filed with the SEC that has not been so filed on or before the date of this Agreement or any Liability amendment, modification or waiver under any contract, agreement or other document or instrument that was previously so filed, which amendment, modification or waiver is required to be so filed (collectively "Additional SEC Contracts") or (B) except as listed on Schedule 4.1(s), is a result party to any oral or written agreement, plan or arrangement with any officer, director or employee of the consummation Company or of any Subsidiary of the Company (collectively "Material Employment Contracts" and together with the SEC Contracts and Additional SEC Contracts, the "Material Contracts")
(1) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature of any of the transactions contemplated by this Agreement, (2) providing severance benefits or other benefits after the termination of employment regardless of the reason for such termination of employment, (3) under which any person may receive payments subject to the tax imposed by Section 4999 of the Code, or both; and
(xvii4) any other Contract of the performance benefits of which requires either (A) annual payments to will be increased, or from the Company or its Subsidiaries in excess vesting of $300,000 or (B) aggregate payments to or from benefits of which will be accelerated, by the Company or its Subsidiaries in excess occurrence of $1,500,000 over the life any of the agreement andtransactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement. Except as set forth on Schedule 4.1(s), in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is a valid and binding on obligation of the Company or its Subsidiaries, as applicableand, to the Company’s Knowledge's knowledge, the counterparties thereto, each other party thereto and is in full force and effect and enforceable in accordance with its terms against without amendment. Except as set forth on Schedule 4.1(s), the Company or its Subsidiaries and, to the Company’s Knowledge's knowledge, each other party thereto has performed all obligations required to be performed by it through the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally date hereof under the enforcement of creditors’ rights Material Contracts and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are is not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or giving notice, or both) would result in a material breach of, or default under, in any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)respect thereunder.
Appears in 3 contracts
Sources: Merger Agreement (Hadco Acquisition Corp Ii), Merger Agreement (Continental Circuits Corp), Merger Agreement (Hadco Acquisition Corp Ii)
Material Contracts. (a) Section 3.13(a3.7(a) of the Company Disclosure Schedule contains Schedules sets forth a listing of all Contracts described in clauses (i) through (xiii) below to which, as list of the date of this Agreement, the following Contracts to which a Group Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are each Contract required to be set forth on Section 3.13(a3.7(a) of the Company Disclosure ScheduleSchedules, together with each of the Contracts entered into after the date hereof that would be required to be set forth on Section 3.7(a) of the Company Disclosure Schedules if entered into prior to the date hereof, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the any Group Company or its Subsidiaries or to the placing of a Lien (other than a any Permitted Lien) on any material assets or properties of the Company or its Subsidiariesany Group Company;
(ii) any Contract under which the any Group Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000100,000;
(iii) any Contract under which the any Group Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiariessuch Group Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000100,000;
(iv) any (A) material joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization commercialization, research and development or research or development Contractother similar Contract (including any such Contract that governs the research, development, ownership, enforcement, use, or similar Contractother exploitation of any Intellectual Property Rights or other assets, in each case, case which requires, or would reasonably be expected is material to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled ContractsBusiness);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the any Group Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area area, to operate any asset or assets or that would so limit or purport to limit, in any material respect, the operations of Parent Holdco or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the any Group Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research productsthe Company Products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, customer in any material respect or that would so limit or purports to limit, in any material respect, Parent Holdco or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the any Group Company or its Subsidiaries in an amount in excess of (A) $300,000 200,000 annually or (B) $1,000,000 500,000 over the life of the agreementContract;
(vii) any Contract requiring the any Group Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiaryany other Group Company) or pursuant to which any Person (other than the Company or a Subsidiaryany other Group Company) has guaranteed the Liabilities of a the Company or a SubsidiaryGroup Company, in each case in excess of $200,000250,000;
(viii) any Contract under which the any Group Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonPerson other than a Group Company;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the any Group Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the any Group Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual PropertyProperty Rights;
(x) any Contract governing the terms of, or otherwise related to, the employment, engagement or services of any current director, manager, officer, employee, or Contingent Worker of a Group Company (A) whose annual base salary (or, in the case of a Contingent Worker, actual or anticipated annual base compensation) is in excess of $150,000 or (B) that provides for severance or any other post-termination payments or benefits;
(xi) any Contract providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;
(xii) any collective bargaining agreements and any other agreements executed with a union, works council or similar organization or a Government Entity regarding the terms and conditions of employment of any employee or Contingent Worker of any Group Company;
(xiii) any Contract with any Top Customer or Top Supplier;
(xiv) any Contract that provides another Person (other than another Group Company or any manager, director or officer of any Group Company) with a power of attorney;
(xv) any Contract that relates to any merger, consolidation or other business combination with any other Person or for the disposition of any material portion of the assets or business of the any Group Company or its Subsidiaries or for the acquisition by the any Group Company or its Subsidiaries of the any material assets or material business of any other Person (other than acquisitions or dispositions made in the Ordinary Course ordinary course of Businessbusiness), or under which the any Group Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xiixvi) any settlement, conciliation or similar Contract (A) requiring monetary the performance of which would be reasonably likely to involve any payments by in excess of $100,000 in the Company or its Subsidiaries after the date of this Agreementaggregate, (B) with a Governmental Authority Entity or (C) that imposes or is reasonably likely to impose, at any time in the future, any material, non-monetary obligations on the any Group Company or its Subsidiaries (or Parent Holdco or any of its Affiliates after the Closing);
(xvii) documents that will be required to be filed with the Registration Statement/Proxy Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant; and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xviixviii) any other Contract the performance of which requires either (A) annual payments to or from the any Group Company or its Subsidiaries in excess of $300,000 200,000 or (B) aggregate payments to or from the any Group Company or its Subsidiaries in excess of $1,500,000 500,000 over the life of the agreement Contract and, in each case, that is not terminable by the applicable the Group Company or its Subsidiaries without penalty upon less than thirty (30) 90 days’ prior written notice.
(i) Each Material Contract is valid and binding on the applicable Group Company or its Subsidiaries, as applicableand, to the knowledge of the Company’s Knowledge, the counterparties counterparty thereto, and is in full force and effect and enforceable in accordance with its terms against (ii) the applicable Group Company or its Subsidiaries and, to the knowledge of the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcythereto, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract Contract. No written notice of termination has been received by the Company with respect to any Material Contract, and (iii) no event has occurred that (with or without due notice or lapse to the knowledge of time or both) would result in a material breach ofthe Company, or default under, none of the other parties to any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties indicated to a particular Group Company that it intends to terminate the Material Contract or group of Contracts and that, in each case, do not contain any material executory to terminate or continuing terms, conditions, obligations or rights)reduce its business dealings with a Group Company.
Appears in 3 contracts
Sources: Business Combination Agreement (VivoPower International PLC), Business Combination Agreement (Cactus Acquisition Corp. 1 LTD), Business Combination Agreement (Cactus Acquisition Corp. 1 LTD)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Except as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleSchedule 3.9 hereto, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) none of the Company or any of its Subsidiaries is a party to make any payment oral or incur any Liability as a result of the consummation of the transactions contemplated by this Agreementwritten contract, termination of employment commitment or both; and
agreement (xviii) any that, other Contract the performance of which requires either (A) annual payments than with respect to or from Material Leases, obligates the Company or its Subsidiaries in excess of $300,000 any Subsidiary to pay or (B) aggregate payments to or from entitles the Company or its Subsidiaries in excess any Subsidiary to receive an amount, from and after the date hereof, of $1,500,000 over 250,000 or more annually; (ii) restricting the life Company's or any Subsidiary's ability to conduct the outdoor or mall advertising business generally in any geographic location (including applicable non-competes or similar agreements); (iii) that provides for the lease, sublease, license or other similar rights of possession or occupancy of real property (as tenant, occupier or possessor) used primarily for billboard sites, pursuant to which the agreement and, in each case, that is not terminable current net annual rent payable by the applicable the Company or its Subsidiaries without penalty upon less than thirty any Subsidiary currently exceeds $50,000 (30the "MATERIAL LEASES"); or (iv) days’ prior written notice.
(i) Each Material Contract is valid and binding on evidences indebtedness of the Company or any Subsidiary for money borrowed (whether incurred, assumed, guaranteed or secured by any asset) and, with respect to all such contracts, commitments and agreements, except as set forth on Schedule 3.9 hereto, neither the Company nor any of its Subsidiaries, as applicablenor, to the knowledge of the Company’s Knowledge, any other party to any such contract, commitments and agreements is, in breach thereof or default thereunder and there does not exist under any provision thereof, to the counterparties theretoknowledge of the Company, any event that, with the giving of notice or the lapse of time or both, would constitute such a breach or default, except for such breaches, defaults and is events as to which requisite waivers or consents have been obtained or which would not, individually or in the aggregate, have a Material Adverse Effect. Complete and correct copies of each contract, commitment and agreement set forth on Schedule 3.9 have been furnished or made available to Buyer, and, to the knowledge of the Company, all of such contracts, commitments and agreements are valid, binding and in full force and effect except for such failures to be so valid, binding and enforceable in accordance with its full force and effect which, individually or in the aggregate, would not a Material Adverse Effect.
(b) Pursuant to the terms against of the Credit Agreement and the Revolving Credit Commitments or other applicable governing documents, the Obligations and any other Indebtedness of the Company or and its Subsidiaries andthereunder may be pre-paid by Buyer on the Closing Date pursuant to Section 6.10, subject to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)requirements contemplated thereby.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Universal Outdoor Inc), Stock Purchase Agreement (Universal Outdoor Holdings Inc), Stock Purchase Agreement (Universal Outdoor Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses Except (i) through as filed as exhibits to the Company SEC Documents, (xiiiii) below to whichfor this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date of this Agreementhereof, neither the Company or its Subsidiaries nor any Subsidiary of the Company is a party to or is bound by which they are boundany Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, other than a Company Benefit Plan2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are not expired or have not been terminated and not including any ancillary to Contracts pursuant to which the Company has with no material outstanding revenue is paid or executory obligations or Liabilities (such Contracts as are required payable to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which that is with the ten (10) largest vendors of the Company or and its Subsidiaries is lessor during the fiscal year ended January 31, 2024 (as determined based on cost of or permits any third party goods and services paid to hold or operate, in each case, any tangible property (other than real property), owned or controlled such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or its Subsidiariesstatements of work or invoices entered into in the ordinary course of business, except for any lease and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or agreement under which payable by the aggregate annual rental payments do not exceed $200,000Company);
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development that is a Government Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, evidencing a capital expenditure for which future payments are required in any material respect, the freedom excess of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing$5,000,000;
(vi) relating to the disposition or acquisition of any Contract requiring business, equity, or all or substantially all of the assets of any future capital commitment or capital expenditure (or series Person for aggregate consideration in excess of capital expenditures) $5,000,000 by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course ordinary course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) business pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any have material Company Product or any material Intellectual Propertycontinuing obligations;
(xivii) containing (A) a covenant or other provision limiting in any Contract for material respect the disposition of any portion of the assets or business ability of the Company or its Subsidiaries or for the acquisition by any Subsidiary of the Company to compete or its Subsidiaries engage in any line of the assets business or business of to compete with any other Person (in any geographic area, other than acquisitions any customary employee non-solicitation or dispositions made no-hire clauses entered into in the Ordinary Course ordinary course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementbusiness, (B) with a Governmental Authority “most favored nation”, “exclusivity” or similar provisions, (C) that imposes any material, non-monetary obligations on the Company a right of first refusal or its Subsidiaries (or Parent or any right of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and first offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, right that will result in any obligation (absolute or contingent) limits the ability of the Company or any of its Subsidiaries to make any sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment or incur any Liability as a result obligation of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or and its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andSubsidiaries, in each case, that is not terminable by material to the applicable Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries without penalty upon less of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than thirty non-exclusive licenses granted to customers in the ordinary course of business, and/or (30C) daysthat is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ prior written noticeagreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(ib) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract is Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or its Subsidiariesthe applicable Subsidiary of the Company, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is (B) in full force and effect effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and enforceable other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in accordance with its terms against the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company or its Subsidiaries nor any Subsidiary of the Company has, and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement Knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, none of the counterparties other parties thereto are not in material breach have, violated any provision of, or default committed or failed to perform any act under, any Material Contract and (iii) no event has occurred that or condition exists, which (with or without due notice or notice, lapse of time or both) would result in constitute a material breach of, of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract by has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatthan, in each case, do as would not contain any material executory or continuing terms, conditions, obligations or rights)reasonably be expected to have a Material Adverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Tzuo Tien), Merger Agreement (Zuora Inc), Merger Agreement (Slaa Ii (Gp), L.L.C.)
Material Contracts. (aSchedule 3.1(s) Section 3.13(a) of delivered to Parent by the Company Disclosure Schedule contains a listing prior to the execution of this Agreement lists all Contracts described in clauses (i) through (xiii) below material contracts and agreements to which, as of the date of this Agreementhereof, the Company or its Subsidiaries any Subsidiary is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries Subsidiary is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), bound or under which the Company or its Subsidiaries any Subsidiary has or may acquire any continuing obligation with respect rights, which were not filed prior to an “earn-out,” contingent purchase price the date hereof as exhibits to the Company Commission Filings, which involve or relate to (i) obligations of the Company or any Subsidiary for borrowed money or other contingent or deferred payment obligation;
indebtedness where the amount of such obligations exceeds $100,000 individually, (xiiii) any settlement, conciliation or similar Contract (A) requiring monetary payments the lease by the Company or any Subsidiary, as lessee or lessor, of real property for rent of more than $100,000 per annum, (iii) the purchase or sale of goods (other than raw material to be purchased by the Company on terms that are customary and consistent with the past practice of the Company and in amounts and at prices substantially consistent with past practices of the Company) or services with an aggregate minimum purchase price of more than $100,000 per annum, (iv) rights to manufacture and/or distribute any Pharmaceutical Product which accounted for more than $100,000 of the consolidated revenues of the Company and its Subsidiaries after during the date fiscal year ended December 31, 1998 or under which the Company or any Subsidiary received or paid license or other fees in excess of this Agreement$100,000 during any year, (v) the purchase or sale of assets or properties not in the ordinary course of business having a purchase price in excess of $100,000, (vi) the right (whether or not currently exercisable) to use, license (including any "in-license" or "outlicense"), sublicense or otherwise exploit any intellectual property right or other proprietary asset of the Company or of any of Subsidiary of the Company or any other Person which, when considered together with all such other rights, is material to the Company; (vii) any material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of the Company or any Subsidiary of the Company (A) to compete with any other Person, (B) with a Governmental Authority to acquire any product or other asset or any services from any other Person, (C) that imposes to solicit, hire or retain any materialPerson as an employee, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xviD) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person; (ix) any employment currency hedging; or consulting Contract (x) individual capital expenditures or commitments in excess of $100,000. All such contracts and agreements are duly and validly executed by the Company or such Subsidiary, and are in full force and effect. Neither the Company nor any of its Subsidiaries has violated or breached, or committed any default under, any contract or agreement, and, to the knowledge of the Company, no other Person has violated or breached, or committed any default under, any contract or agreement, which violation, breach or default (alone or in combination with severanceother violations, breaches or defaults under such contract or agreement or under other contracts or agreements) has had or may reasonably be expected to have a material adverse effect on the Company and its Subsidiaries taken as a whole. No event has occurred which, after notice or the passage of time or both, would constitute a default by the Company or any Subsidiary of the Company under any contract or agreement or give any Person the right to (A) declare a default or exercise any remedy under any contract or agreement, (B) receive or require a rebate, chargeback, penalty or change in controldelivery schedule under any contract or agreement, retention (C) accelerate the maturity or similar arrangementsperformance of any contract or agreement, that will result or (D) cancel, terminate or modify any contract or agreement, in any obligation each case which, together with all other events of the types referred to in clauses (absolute or contingentA), (B), (C) and (D) of this sentence has had or may reasonably be expected to have a material adverse effect on the Company or any of its Subsidiaries to make any payment or incur any Liability taken as a result of whole. Except as disclosed on Schedule 3.1(s), all such contracts and agreements will continue, after the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableEffective Time, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable be binding in accordance with its their respective terms against until their respective expiration dates. As soon as practicable after the date hereof, the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement shall provide Parent with a list of creditors’ rights and subject to general principles all leases for real property for rent of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto more than $30,000 per annum which are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightslisted on Schedule 3.1(s).
Appears in 3 contracts
Sources: Merger Agreement (Gilead Sciences Inc), Merger Agreement (Nexstar Pharmaceuticals Inc), Merger Agreement (Warburg Pincus Investors Lp)
Material Contracts. (a) Section 3.13(a3.7(a) of the Company Disclosure Schedule contains Schedules sets forth a listing list of all the following Contracts described in clauses to which any RemainCo Entity (ias it relates to the Business) through (xiii) below to whichor any Group Company is, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they any of the assets or properties of any RemainCo Entity (as it relates to the Business), any Group Company or the Business are bound, other than a Company Benefit Plan, and that are not expired bound or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities subject (such Contracts as are each Contract required to be set forth on Section 3.13(a3.7(a) of the Company Disclosure ScheduleSchedules, together with each of the Contracts entered into after the date hereof that would be required to be set forth on Section 3.7(a) of the Company Disclosure Schedule if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the any Group Company or its Subsidiaries the Business which exceed $50,000 individually or to $100,000 in the placing aggregate, or the incurrence of a any Lien (other than a Permitted Lien) on any material assets or properties of the any Group Company or its Subsidiariesthe Business in connection thereof;
(ii) any Contract under which the any Group Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Personin each case, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000100,000;
(iii) any Contract under which the any Group Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiariesin each case, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000100,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would Contract that is reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate annual payments to or from any RemainCo Entity (as it relates to the Business), any Group Company or its Subsidiaries in excess the Business of more than $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)50,000;
(v) any Contract with any Significant Customer or Significant Supplier;
(vi) any Contract with any Person that distributes, retransmits or otherwise makes available content to subscribers or other customers with respect to the distribution or retransmission of, or the granting of rights or the licensing of, any content related to the Business;
(vii) any Contract with any Person with respect to the (co-)production of any content related to the Business;
(viii) any Contract concerning the establishment or operation of a partnership, strategic alliance, joint venture, limited liability company or similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, joint venture or limited liability company or other similar Contract;
(ix) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the any Group Company or its Subsidiaries the Business to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent TopCo or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or restrictions, (C) contains any other provisions substantially restricting or purporting to restrict the ability of the any Group Company or its Subsidiaries the Business to sell, manufacture, sell or develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect customer or that would so limit or purports to limit, in any material respectrespect TopCo, Parent or any of its Affiliates after the Closing, or (D) obligates any Group Company or the Business to purchase or otherwise obtain any product or service exclusively from a single third party or granting any third party the exclusive right to develop, market, sell or distribute the products or services of the Business;
(vix) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 50,000 annually or (B) $1,000,000 100,000 over the life of the agreement;
(viixi) any Contract requiring any RemainCo Entity (as it relates to the Business) or any Group Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a SubsidiaryGroup Company, in each case in excess of $200,00050,000;
(viiixii) any Contract to which any Group Company is party under which the such Group Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonPerson in excess of $50,000;
(ixxiii) any Commingled Contracts;
(xiv) any Contract required to be disclosed on Section 3.19 of which any RemainCo Entity (as it relates to the Business) or any Group Company Disclosure Schedule;
(x) is party that has been entered into at any Contract with any Person (A) time within the three year period prior to the date hereof pursuant to which the such RemainCo Entity or Group Company acquired or its Subsidiaries (disposed of a business, assets or Parent equity interests with a purchase price in excess of $50,000 or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) such Contract under which the such RemainCo Entity or Group Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation obligation, including with respect to an indemnity, “earn-out,” ”, contingent purchase price or other contingent or deferred payment obligation;
(xiixv) any settlementContracts pursuant to which any RemainCo Entity or any Group Company grants or receives a (sub-)license, conciliation covenant not to sue or other right or immunity with respect to any Intellectual Property Rights that is (or the tangible embodiment of which is) incorporated into, or distributed or used with, any Company Product or that is otherwise material to the Business, other than non-exclusive licenses granted on generally available terms with respect to off-the-shelf un-customized software;
(xvi) any Contract that would reasonably be expected to prevent, materially delay or materially impede FCB’s or such Group Company’s ability to consummate the Transactions;
(xvii) any Contract to which any Group Company is party (A) that was not negotiated and entered into on an arm’s length basis or any other Contract in respect of a Related Party Transaction or (B) with current or former officers, directors or employees of such Group Company pursuant to which such Group Company has indemnification obligations.
(xviii) any Contract in which the counterparty is a Governmental Entity or any of their respective Affiliates;
(xix) any Collective Bargaining Agreement or any other Contract with any Employee Representative Body, in each case, covering any Business Employee;
(xx) any settlement or other similar Contract (A) requiring monetary that is reasonably likely to be required to make any payments by the Company or its Subsidiaries after the date to any Person of this Agreementmore than $50,000, (B) with a Governmental Authority Entity or (C) that imposes or is reasonably likely to impose, at any time in the future, any material, non-monetary obligations on the any Group Company or its Subsidiaries the Business;
(xxi) any Contract pursuant to which any investment banker or Parent other Person is entitled to a fee or any of its Affiliates after commission in connection with the Closing)Transactions; and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xviixxii) any other Contract or group of related Contracts that, individually or in the performance aggregate, if terminated or subject to a default by any party thereto, would have or would reasonably be expected to have a Company Material Adverse Effect.
(b) A copy of which requires either (A) annual payments each Material Contract has been made available by BP to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMountain.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, valid and binding on, and enforceable in accordance with its terms against against, a Group Company and/or a RemainCo Entity, as the Company or its Subsidiaries case may be, and, to the Company’s KnowledgeKnowledge of BP, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or each other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)party thereto, (ii) none of the Company Group Companies or its Subsidiaries andthe RemainCo Entities (as the case may be) nor, to the Company’s KnowledgeKnowledge of BP, the counterparties thereto are not in material breach ofany other party thereto, has taken or failed to take any action that, with or without notice, lapse of time, or both, would or would reasonably be expected to (A) constitute a breach, violation or a default under, under any Material Contract or (B) give any Person the right to declare in default or exercise any remedy under any Material Contract (including the right to accelerate the maturity or any performance thereunder, or to cancel, terminate or modify any Material Contract) and (iii) no event none of the RemainCo Entities or the Group Companies has occurred that (with or without due received written notice or lapse of time or both) would result in from any party to a material breach of, or default under, any Material Contract by the Company or its Subsidiaries orof any intention to terminate, to the Company’s Knowledge, the counterparties thereto. The Company has made available seek renegotiation of terms or to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatnot renew, in each case, do except in the case of each of clauses (i), (ii) and (iii) as would not contain reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of BP, no counterparty to any material executory Material Contract is in breach or continuing terms, conditions, obligations or rights)violation thereof.
Appears in 3 contracts
Sources: Business Combination Agreement (Mountain & Co. I Acquisition Corp.), Business Combination Agreement (Mountain & Co. I Acquisition Corp.), Business Combination Agreement (Mountain & Co. I Acquisition Corp.)
Material Contracts. (a) All Contracts, including amendments thereto, required to be filed with the SEC as an exhibit to any Company SEC Documents filed on or after January 1, 2023 pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. All such filed Contracts shall be deemed to have been made available to Parent.
(b) Section 3.13(a4.12(b) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichLetter sets forth, as of the date of this Agreementhereof, a true and complete list of, and the Company or its Subsidiaries has made available to Parent a true, correct and complete copy of, each Contract (other than a Company Benefit Plan) in effect as of the date hereof to which any of the Acquired Companies is a party or by which they any of its properties or assets are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound that:
(i) any Contract relating to Indebtedness for borrowed money is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesExchange Act);
(ii) any Contract is required to be described pursuant to Item 404 of Regulation S-K promulgated under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000Securities Act;
(iii) involves (A) annual future expenditures or receipts by an Acquired Company of more than $20,000,000 or (B) annual aggregate payments by, or other consideration from, any Contract under which the Company or its Subsidiaries is lessor Acquired Companies of or permits any third party to hold or operatemore than $20,000,000, and, in each case, any tangible property case of (other than real propertyA) and (B), owned or controlled is not terminable by the an Acquired Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000convenience without material penalty;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivitynon-compete, “most favored nation” or similar provisions, obligations exclusivity provisions with respect to any line of business or restrictions or geographic area that (CA) contains any other provisions restricting or purporting to restrict restricts the ability business of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, Acquired Companies in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the including upon consummation of the transactions contemplated by this Agreement, termination or that otherwise restricts the lines of employment business conducted by the Acquired Companies or boththe geographic area in which the Acquired Companies may conduct business in any material respect, other than any Contracts that may be cancelled without material liability to an Acquired Company upon notice of ninety (90) days or less or (B) would restrict the business of Parent or its Affiliates (other than the Acquired Companies) or the geographic area in which Parent or its Affiliates (other than the Acquired Companies) may conduct business upon consummation of the transactions contemplated by this Agreement;
(v) constitutes or relates to an Indebtedness obligation for borrowed money of the Acquired Companies that either (A) has an outstanding principal amount as of the date hereof greater than $20,000,000 or (B) is secured, directly or indirectly, by a Company Property;
(vi) requires the Acquired Companies to purchase or sell, as applicable, equity interests of any Person or assets, including through a pending purchase or sale of assets, merger, consolidation or similar business combination transaction, that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value or purchase price in excess of $100,000,000;
(vii) relates to an acquisition, divestiture, merger or similar transaction that has continuing material indemnification, guarantee, “earn-out” or other contingent payment obligations on an Acquired Company;
(viii) except to the extent set forth in the Governing Documents of the Company’s Subsidiaries or the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ or the loan documents in effect as of the date hereof evidencing Indebtedness, contains covenants expressly limiting, in any material respect, the ability of the Acquired Companies to sell, transfer, pledge or otherwise dispose of any material assets or business of the Acquired Companies, taken as a whole;
(ix) except to the extent set forth in the Governing Documents of the Company’s Subsidiaries or the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ or the loan documents in effect as of the date hereof evidencing Indebtedness or any Material Company Lease, grants any buy/sell, put option, call option, redemption right, option to purchase, a marketing right, a forced sale, tag or drag right or a right of first offer, right of first refusal or right that is similar to any of the foregoing, pursuant to the terms of which any Acquired Company could be required to purchase or sell a material portion of the equity interests or a material portion of the assets of any Person;
(x) sets forth the operational terms of a joint venture, partnership, limited liability company or strategic alliance of the Acquired Companies with or involving a third party;
(xi) calls for (A) aggregate payments by, or other consideration from, any of the Acquired Companies of more than $10,000,000 over the remaining term of such Contract or (B) annual aggregate payments by, or other consideration from, any of the Acquired Companies of more than $2,000,000;
(xii) relates to the settlement (or proposed settlement) of any pending or threatened Action, in writing, other than any settlement that is covered by insurance or indemnification, or provides solely for the payment of less than $10,000,000;
(xiii) pursuant to which any of the Acquired Companies, (A) receives a license of or other rights or interest with respect to any material Intellectual Property, other than off-the-shelf software, and other than any Contract entered into in the ordinary course of business for which the license of or grant of other right or interest with respect to such Intellectual Property is both on a non-exclusive basis and not the primary purpose of such Contract or (B) grants a license of or other rights or interest with respect to any material Intellectual Property owned by any Acquired Company other than non-exclusive licenses granted in the ordinary course of business;
(xiv) is a Fund Agreement; and
(xviixv) any other Contract the performance of which requires either (A) annual payments to or from the is a Material Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeLease.
(c) Each Contract in any of the categories set forth in Section 4.12(a) and (b) to which any of the Acquired Companies is a party or by which it is bound as of the date hereof is referred to herein as a “Material Contract”.
(d) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Acquired Companies, taken as a whole, (i) Each each Material Contract is valid legal, valid, binding and binding enforceable on the each Acquired Company or its Subsidiaries, as applicablethat is a party thereto and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto (subject to applicable except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles of equity), equity (regardless of whether enforceability is considered in a proceeding in equity or at Law) and (ii) each Acquired Company has performed all obligations required to be performed by it prior to the Company or its Subsidiaries date hereof under each Material Contract and, to the Knowledge of the Company’s Knowledge, each other party thereto has performed all obligations required to be performed by it under such Material Contract prior to the counterparties thereto are not date hereof. None of the Acquired Companies nor, to the Knowledge of the Company, any other party thereto, is in material breach or violation of, or default under, any Material Contract Contract, and (iii) no event has occurred that (that, with or without due notice or lapse of time or both) , would result constitute a violation, breach or default under any Material Contract, except where in each case such breach, violation or default, individually or in the aggregate, would not reasonably be expected to have a material breach of, Company Material Adverse Effect. None of the Acquired Companies has received notice of any violation or default under, or currently owes any termination, cancellation or other similar fees or any liquidated damages with respect to, any Material Contract by Contract, except for violations, defaults, fees or damages that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Except as, individually or its Subsidiaries in the aggregate, would not have, and would not reasonably be expected to have a Company Material Adverse Effect, there are no disputes pending, or, to the Knowledge of the Company’s Knowledge, threatened with respect to any Material Contract, and none of the Acquired Companies has received any written notice of the intention of any other party to a Material Contract to terminate for default, convenience or otherwise any Material Contract.
(e) Section 4.12(e) of the Company Disclosure Letter lists each management agreement pursuant to which any third party manages or operates any of the Company Properties on behalf of any Acquired Company, and describes the property that is subject to such management agreement, the counterparties theretoapplicable Acquired Company that is a party, the date of such management agreement and each material amendment, guaranty or other agreement binding on the applicable Acquired Company and relating thereto (collectively, the “Management Agreements”). The Company has made available to Parent true and complete copies of all Material Contracts in effect Management Agreements as of the date hereof (other than purchase ordershave been made available to Parent. As of the date hereof, invoiceseach Management Agreement is valid, binding and similar confirmatory or administrative documents that are ancillary in full force and effect as against the applicable Acquired Company and, to the main contractual relationship between Knowledge of the parties Company, as against the other party thereto. None of the Acquired Companies owes any termination, cancellation or other similar fees or any liquidated damages to a particular Contract any third-party manager or group of Contracts and operator, except for fees or damages that, individually or in each casethe aggregate, do would not contain any material executory or continuing terms, conditions, obligations or rights)reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Rithm Capital Corp.), Merger Agreement (Paramount Group, Inc.)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as As of the date hereof, neither Utah nor any of this Agreement, the Company or its Subsidiaries is a party are parties to or otherwise bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any subject to (Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulefollowing types, together with the Utah Licenses, the “Utah Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of such Contract solely between the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each caseUtah Entities, any tangible property (other than real property)partnership, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharingstrategic alliance, partnership, collaboration, co-promotion, commercialization license or research or and development Contract, or similar project Contract, in each case, which requiresis material to Utah and its Subsidiaries (taken as a whole);
(ii) Contracts containing (A) a covenant materially restricting the ability of Utah or any of its Subsidiaries to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers or (B) a provision granting the other party exclusivity or similar rights, in each case of clauses (A) and (B), that would, after giving effect to the Combination, materially impact the businesses of Utah and its Subsidiaries (taken as a whole);
(iii) any acquisition or divestiture Contract or licensing agreement that contains continuing financial covenants, indemnities or other payment obligations (including “earn-out” or other contingent payment obligations but not including royalty payments) that would reasonably be expected to require (based on result in the receipt or making by Utah or any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or of its Subsidiaries of future payments in excess of $1,000,000 over the life 100 million;
(iv) each Contract relating to outstanding Indebtedness of the Contract Utah or its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in each case in a principal amount in excess of $100 million other than (A) Contracts solely among Utah and any wholly owned Utah Subsidiary or a guarantee by Utah or any Utah Subsidiary of Indebtedness of a Utah Subsidiary and (B) other Contract financial guarantees entered into in the ordinary course of business consistent with respect to material Company Licensed Intellectual Property past practice not exceeding $100 million, individually or in the aggregate (other than any Non-Scheduled Contractssurety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practice in each case to the extent not drawn upon);
(v) any Contract that (AUtah Leases set forth on Section 7.18(b) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingUtah Disclosure Schedule;
(vi) any Contract requiring shareholders, investors’ rights, registration rights or similar agreement or arrangement of Utah or any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementSubsidiaries;
(vii) any Contract requiring that relates to any swap, forward, futures, or other similar derivative transaction with a notional value as of the Company or its Subsidiaries to guarantee the Liabilities date of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case this Agreement in excess of $200,000100 million;
(viii) any Contract under involving the settlement of any claims, actions, suits or proceedings or threatened claims, actions, suits or proceedings (or series of related claims, actions, suits or proceedings) pursuant to which the Company Utah or any of its Subsidiaries has, directly or indirectly, made or agreed (A) is required to make any loan, advance, or assignment of payment to any Person outside of pay after the Ordinary Course of Business or, individually or in the aggregate, in an amount date hereof consideration in excess of $200,000 50 million or made (B) is subject to material monitoring or reporting obligations to any capital contribution to, or other investment in, any PersonPerson outside the ordinary course of business;
(ix) any Contract required with any Governmental Authority that is material to be disclosed on Section 3.19 Utah and its Subsidiaries, taken as a whole, excluding any sales, supply, manufacturing or services agreements entered into in the ordinary course of the Company Disclosure Schedule;business and tolling agreements entered into in connection with investigations by any Governmental Authority; and
(x) any Contract with not otherwise described in any Person (Aother subsection of this Section 7.11(a) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may that would be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or be filed by Utah as a “material contract” (Bas such term is defined in Item 601(b)(10) under which of Regulation S-K of the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;SEC).
(xib) any Utah has made available to Pluto true, complete and correct copies of each Utah Material Contract for described in Section 7.11(a)(i) through Section 7.11(a)(x) in effect on the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar date hereof. Each Utah Material Contract (A) requiring monetary payments by the Company except those which may be canceled, rescinded, terminated or its Subsidiaries not renewed after the date of this Agreement, (Bhereof in accordance with their terms) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company Utah or its Subsidiaries, as applicable, and, to the Company’s Knowledgeknowledge of Utah, the counterparties counterparty thereto, and is in full force and effect and enforceable in accordance with its terms against effect, subject to the Company or Remedies Exception. Neither Utah nor any of its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is in material breach of, or default under, any Utah Material Contract and (iii) no event has occurred that (with to which it is a party, except for such breaches or without due notice defaults as would not reasonably be expected to have, individually or lapse in the aggregate, a Utah Material Adverse Effect. To the knowledge of time or both) would result in a material breach ofUtah, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (hereof, no other than purchase ordersparty to any Utah Material Contract is in breach of or default under the terms of any Utah Material Contract where such breach or default has had or would reasonably be expected to have, invoicesindividually or in the aggregate, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Utah Material Adverse Effect.
Appears in 2 contracts
Sources: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.)
Material Contracts. (a) Section 3.13(a) 4.18 of the Company Disclosure Schedule contains lists the following Contracts to which the Company or any Company Subsidiary is a listing of all Contracts described in clauses (i) through (xiii) below to which, party as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities hereof (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Company Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating all Contracts that purport to Indebtedness for borrowed money limit, curtail or restrict the right of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any Company Subsidiary in any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any respect (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or in any geographic area, with any Person or in during any area period of time, or (B) to solicit or hire any Person;
(ii) any Contract that would so limit or purport to limit, in grants any material respect, Person other than the operations of Parent Company or any of its Affiliates after the ClosingCompany Subsidiary any (A) exclusive license, supply, distribution or other rights, (B) contains any exclusivity, material “most favored nation” or similar provisionsrights, obligations or restrictions or (C) material rights of first refusal, rights of first negotiation or similar rights, (D) exclusive rights to purchase any Company products, including products produced through foundry services, (E) material guaranteed availability of supply or services for a period greater than twelve (12) months, (F) guarantee as to foundry capacity or priority, (G) material rebates or (H) price guarantees for a period greater than twelve (12) months;
(iii) any Contract relating to the disposition or acquisition by the Company or any Company Subsidiary of any business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) (A) entered into on or after January 1, 2006 (whether or not such acquisition or disposition has been consummated prior to the date of this Agreement), or (B) that contains ongoing non-competition or material indemnification obligations or other material ongoing obligations;
(iv) listing separately, except for such Contracts that have expired or been terminated and have no ongoing obligations (other than confidentiality obligations or indemnity obligations), all (A) In-Bound Patent Licenses, the primary purpose of which is to license one or more Patents, (B) Out-Bound Patent Licenses that license, or agree to license, a substantial portion of issued Company Patents or the primary purpose of which is to license one or more Patents, (C) Cross-licenses that license, or agree to license, a substantial portion of issued Company Patents or the primary purpose of which is to license one or more Patents and (D) other Patent Licenses, excluding Software license agreements executed in the normal course of business, that require a royalty payment to, or royalty payment by, the Company or any other provisions restricting or purporting to restrict the ability of the Company Subsidiaries;
(v) any Contract with respect to product or its Subsidiaries Intellectual Property development that is material to sellthe Company and the Company Subsidiaries, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingtaken as a whole;
(vi) any Contract requiring any future capital commitment Technology transfer or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of license agreement related to a (A) $300,000 annually manufacturing process or (B) $1,000,000 over related to product design that, in the life case of clause (B), affects a material portion of the agreementCompany’s product portfolio;
(vii) any Contract requiring with respect to product design services, foundry services, product assembly (packaging) and/or test, or material contract manufacturing services that affects a material portion of the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Company’s product portfolio;
(viii) any Contract under which the Company with any Governmental Authority or its Subsidiaries hasany Contract incorporating government acquisition terms (e.g., directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregateU.S., the Federal Acquisition Regulation (FAR) or the Defense Federal Acquisition Regulation Supplement (DFARS)) involving payments of more than Two Million Dollars ($2,000,000) in an amount in excess any twelve (12) month period or requiring delivery of $200,000 or made any capital contribution to, or other investment in, any Personcost and pricing data;
(ix) any Contract required that reasonably contemplates payments by or to be disclosed on Section 3.19 the Company or any of the Company Disclosure ScheduleSubsidiaries of more than Ten Million Dollars ($10,000,000) in any twelve (12) month period;
(x) any customer Contract with any Person (Aother than standard purchase orders) pursuant that reasonably contemplates payment to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to of more than Five Million Dollars ($5,000,000) in any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertytwelve (12) month period;
(xi) any Contract for the disposition of any portion of the assets Contracts with distributors or business of the Company sales representatives or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect that otherwise entitle a third party to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationa commission;
(xii) any settlementmortgages, conciliation indentures, guarantees, loans or similar Contract credit agreements, security agreements or other Contracts, in each case, relating to indebtedness for borrowed money of Five Million Dollars (A$5,000,000) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementgreater, (B) with a Governmental Authority whether as borrower or (C) that imposes any materiallender, non-monetary obligations on the Company and whether secured or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andunsecured;
(xiii) each collective bargaining agreement any Contract with a notional value of Fifteen Million Dollars ($15,000,000) or greater that involves or relates to any exchange traded, over-the-counter or other Contract with the Company hedging (including currency hedging), swap, cap, floor, collar, futures, forward, option or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other handderivative financial trading activities;
(xiv) any Contract with providing for indemnification or any guaranty by the Company or its any Company Subsidiary that (i) has not been made in the ordinary course of business or (ii) is material to the Company and any Company Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of taken as a whole (in each case with respect to which the Company or its Subsidiaries or any Company Subsidiary has continuing obligations as of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentthe date hereof);
(xv) leases or subleases under which the Company or the Company Subsidiaries (A) lease or occupy Leased Real Property for manufacturing purposes or in excess of one hundred thousand (100,000) gross square feet and (B) leases, subleases or licenses of any employment, consulting, bonus, commissions property to a third party for manufacturing purposes or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments in excess of more than $500,000 per yearone hundred thousand (100,000) gross square feet;
(xvi) any employment Contract establishing a partnership, joint venture or similar third party business enterprise in which the Company or any Company Subsidiaries has (A) an equity interest or the right to acquire an equity interest or (B) a capital commitment or other obligation under such Contract;
(xvii) (A) any Employee Change-of-Control Agreement or (B) any employment, independent contractor or consulting Contract (in each case with severance, change in control, retention respect to which any party thereto has continuing obligations as of the date hereof) with any current or similar arrangements, that will result in any obligation former (absolute or contingent1) executive officer of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result the Company Subsidiaries, (2) member of the consummation Company Board, or (3) employee, independent contractor who is a natural person or consultant of the transactions contemplated by this AgreementCompany or any of the Company Subsidiaries, in each case providing for an annual base compensation in excess of Two Hundred Fifty Thousand Dollars ($250,000);
(xviii) collective bargaining agreements or other Contracts with any labor union;
(xix) any other Contract under which the consequences of a default or breach or the early termination of employment or bothwhich would reasonably be expected to have a Company Material Adverse Effect; and
(xviixx) any all other Contract the performance of which requires either (A) annual payments Contracts required to or from be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated under the Securities Act or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from disclosed by the Company on a Current Report on Form 8-K, whether or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company so filed or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticedisclosed.
(i) Each Company Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against (other than due to the Company or its Subsidiaries ordinary expiration of the term thereof), and, to the Knowledge of the Company’s Knowledge, is valid and binding on the counterparties other parties thereto (in each case subject to applicable bankruptcythe Bankruptcy and Equity Exception) except as has not had and would not reasonably be expected to have, insolvencyindividually or in the aggregate, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)a Company Material Adverse Effect, (ii) the Company or its Subsidiaries andand each Company Subsidiary has in all material respects performed all obligations required to be performed by it under each Company Material Contract, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due condition exists which constitutes or, after notice or lapse of time or both) , would result constitute a breach or default on the part of the Company or any Company Subsidiary under any such Company Material Contract, except such breaches that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, no other party to any Company Material Contract is in material breach or default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a material breach of, or default under, by any Material Contract by such other party thereunder. Neither the Company nor any Company Subsidiary has received any written notice of termination or its Subsidiaries cancellation under any Company Material Contract, received any written or, to the Knowledge of the Company’s Knowledge, oral notice of material breach or default under any Company Material Contract that has not been cured, or granted to any third party any rights, adverse or otherwise, that would constitute a material breach of any Company Material Contract. Neither the counterparties theretoCompany nor any Company Subsidiary is party to any Contract pursuant to which the terms and conditions thereof or any information or data contained therein are deemed classified pursuant to the rules and regulations of any Governmental Authority. The Company has furnished or made available to Parent true true, correct and complete copies of all Company Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)hereof.
Appears in 2 contracts
Sources: Merger Agreement (National Semiconductor Corp), Merger Agreement (Texas Instruments Inc)
Material Contracts. (a) Section 3.13(aSchedule 3.11(a) of the Company Seller Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Letter sets forth as of the date hereof a list of this Agreementthe following Contracts (other, in each case, than real property leases and Excluded Contracts) (i) that relate primarily to the Company Business to which an Asset Selling Entity or Seller or any of its Subsidiaries Affiliates is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant (ii) to which the a Conveyed Company has with no material outstanding or executory obligations or Liabilities is a party (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulecollectively, the “Material Contracts”). True, true, correct and complete copies of which and all amendments thereto (other than missing documents identified in writing by Seller or Purchaser prior to the Contracts listed on Section 3.13(adate hereof which do not, individually or in the aggregate, materially change the terms, rights or obligations under the applicable Material Contracts) (and reasonably complete and accurate written descriptions of the Company Disclosure Schedule have previously been all oral Material Contracts) Seller has made available to Parent or its agents or representatives, together with all amendments thereto):Purchaser prior to the date hereof:
(i) any Contract relating to Indebtedness for borrowed money each Equipment Lease which entails rental payments in excess of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries$1,000,000 per annum;
(ii) each material Contract between Seller and/or any Contract under which the Company or of its Subsidiaries is lessee of or holds or operates, in each case, any tangible property Affiliates (other than real propertythe Conveyed Companies) or any of the officers or directors of Seller and/or any of its Affiliates (other than the Conveyed Companies), owned by on the one hand, and any Asset Selling Entity and/or Conveyed Company, on the other Personhand, except for any lease or agreement under other than employment contracts which the aggregate annual rental payments do not exceed provide for annual base salary in excess of $500,000250,000 in any given year;
(iii) any each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee or other Contract under which (excluding items set forth on Schedule 3.13(a) or Schedule 3.13(b) of the Company or its Subsidiaries is lessor Seller Disclosure Letter) in respect of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any evidencing (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on Indebtedness of any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Conveyed Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a SubsidiaryAssumed Debt, in each case in excess of $200,000500,000;
(iv) each customer Contract (other than a Contract with a distributor) with payments to the applicable Asset Selling Entity or Conveyed Company in excess of $16,000,000 for the last completed fiscal year;
(v) each outstanding Contract with vendors of the Business with payments by the applicable Asset Selling Entity or Conveyed Company in excess of $6,000,000 for the last completed fiscal year;
(vi) each Contract materially limiting or purporting to materially limit the freedom of the applicable (A) Seller Entity to engage in the Business or compete with any Person in connection with such Seller Entity’s conduct of the Business or (B) Conveyed Company to engage in the Business or compete with any Person in connection with such Conveyed Company’s conduct of the Business;
(vii) each acquisition, merger, consolidation, recapitalization or similar agreement or letter of intent related to the acquisition of a business or line of business entered into in the previous three (3) years for aggregate consideration under such Contract in excess of $2,500,000, other than Contracts in which the applicable transaction has been consummated and there are no earnouts, contingent payments, indemnification or other obligations ongoing or outstanding in excess of $1,000,000 individually or in the aggregate;
(viii) each distributor Contract which involves revenues for the applicable Asset Selling Entity or Conveyed Company in excess of $16,000,000 for the last completed fiscal year;
(ix) each Contract regarding the formation or participation in any material equity joint venture, material joint product development Contract (excluding Contracts with customers entered into in the ordinary course of business consistent with past practice) or similar material arrangement that involves a sharing of revenues, profits, losses, costs or liabilities, with a third party;
(x) each Contract for the licensing or use of Intellectual Property that is material to the Business taken as a whole or the development of Intellectual Property that is material to the Business taken as a whole, other than (A) non-exclusive licenses entered into in the ordinary course of business consistent with past practice, (B) development agreements using Seller’s standard forms of consulting and/or development agreements, (C) Contracts with customers entered into in the ordinary course of business consistent with past practice and which contain only non-exclusive licenses and (D) Information Technology Contracts;
(xi) each Contract entered into in the previous three (3) years for the purchase or sale of Intellectual Property that is or, in the case of sold Intellectual Property, was material to the Business taken as a whole;
(xii) each Information Technology Contract exclusively used in the Business which involves payments in excess of $2,500,000 for the last completed fiscal year, other than commercially available off-the-shelf Software, hosting or similar services licensed or made available pursuant to shrink-wrap, click wrap licenses or subscription agreements that are not material to the Business;
(xiii) each Contract granting to any Person a first refusal, first offer or similar preferential right to purchase or acquire any material Purchased Asset, any equity or other interest in any Conveyed Company or any assets of any Conveyed Company;
(xiv) each Contract under which (A) any Conveyed Company has directly or indirectly guaranteed liabilities or obligations of Seller or any of its Affiliates (other than a Conveyed Company) or (B) Seller or any of its Affiliates (other than a Conveyed Company) has guaranteed any liabilities or obligations of any Conveyed Company, in each case in excess of $500,000;
(xv) each Contract which requires the purchase of all or substantially all of a particular product or material from a supplier or containing a minimum purchase or supply commitment in each case in excess of $6,000,000 per annum;
(xvi) each Contract which provides for consignment of goods with a value in excess of $16,000,000 or requires the Seller or any of its Affiliates (including the Conveyed Companies) to maintain inventory with a value in excess of $16,000,000, in each case, in connection with the Business;
(xvii) each (A) Contract for the employment of, or receipt of any services from, the President of the Business and any of his direct reports and (B) Contract which provides for a severance, termination, retention, change in control or similar payment to the President of the Business and any of his direct reports; and
(xviii) each Contract relating to a Retention Bonus. Notwithstanding anything to the contrary in this Agreement, it is agreed that (x) Material Contracts that are purchase orders, order acknowledgements, invoices or similar documents for the purchase or sale of products or services shall not be required to be listed on Schedule 3.11(a) of the Seller Disclosure Letter (provided that the identity of any customer, supplier or other Person that is a counterparty to such a Material Contract is listed on the applicable subsection of Schedule 3.11(a) of the Seller Disclosure Letter), (y) true, correct and complete copies of Material Contracts that are purchase orders or invoices for the purchase or sale of products or services shall not be required to have been made available to Purchaser if they do not deviate in any material respect from the standard forms made available to Purchaser prior to the date hereof and (z) Contracts for the employment of, or receipt of any services from, any director or officer of Seller, any Asset Selling Entity, or any Conveyed Company or its Subsidiaries hasany other Business Employee or Shared Service Employee on a full-time, directly part-time, consulting or indirectlyother basis providing for an annual base salary in excess of $175,000, made and each Contract which provides for a severance, termination, retention, change in control or agreed to make any loan, advance, or assignment of similar payment to any such Person outside shall be deemed “Material Contracts” for purposes of this Agreement but shall not be required to be listed on Schedule 3.11(a) of the Ordinary Course Seller Disclosure Letter or, subject to Section 5.5(q), made available to Purchaser.
(b) Each Contract set forth on Schedule 3.11(a) of Business the Seller Disclosure Letter is binding and in full force and effect with respect to the Asset Selling Entity or Conveyed Company party thereto and, to the Knowledge of Seller, each other party thereto in accordance with its terms and there exists no breach (other than breaches that are cured or are curable within the applicable cure period, if any, and other than in respect of ordinary course product warranty claims), default or event of default (or occurrence or event that with notice or lapse of time or both would result in a breach, default or event of default) by the applicable Asset Selling Entity or Conveyed Company or, to the Knowledge of Seller, any other party to any such Contract, with respect to any term or provision of any such Contract, in each case, which would, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required be reasonably expected to be disclosed on Section 3.19 material to the Business, the Conveyed Companies and the Purchased Assets, taken as a whole. Except as would not, individually or in the aggregate, be reasonably expected to be material to the Business, the Conveyed Companies and the Purchased Assets, taken as a whole, as of the date hereof, no Asset Selling Entity or Conveyed Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant has given to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of received from any other Person (other than acquisitions any written notice or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
communication (i) Each Material Contract is valid and binding on the Company regarding any actual, alleged, possible, or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material potential breach of, or default under, any Material Contract and (iiiother than in respect of ordinary course product warranty claims) or (ii) announcing or threatening termination or cancellation of any Material Contract. As of the date hereof, except in the ordinary course of business, there is no event has occurred that pending or, to the Knowledge of Seller, threatened audit or investigation of the Seller’s or its applicable Affiliate’s (including any Conveyed Company’s) compliance with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by any other party to such Material Contract. To the Company or its Subsidiaries orKnowledge of Seller, there are no product warranty claims pending by any customers of the Business party to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all any Material Contracts (whether or not in effect as of the date hereof (other than purchase ordersordinary course) which claims are, invoices, and similar confirmatory individually or administrative documents that are ancillary to in the main contractual relationship between the parties to a particular Contract or group of Contracts and thataggregate, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)excess of $5,000,000.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (TE Connectivity Ltd.), Stock and Asset Purchase Agreement (CommScope Holding Company, Inc.)
Material Contracts. (a) Section 3.13(aSchedule 5.09(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichlists, as of the date of this Agreement, the following types of Contracts and agreements to which any Acquired Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts and agreements as are set forth, or required to be set forth forth, on Section 3.13(a) of the Company Disclosure ScheduleSchedule 5.09(a), the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) pension, profit sharing or retirement plans, other than any Contract Multiemployer Plan or any Company Plan, whether or not set forth in Section 5.15 or the Schedules relating thereto;
(ii) Contracts and agreements pursuant to which an Acquired Company has obligated one or more of the Acquired Companies to make capital expenditures that would reasonably be expected to exceed $100,000;
(iii) Contracts and agreements with consideration paid or payable to or by any Acquired Company of more than $250,000, in the aggregate, over any 12-month period;
(iv) Contracts for the services of any officer, director, individual employee (except, as it relates to any former employee, only to the extent of ongoing liability), independent contractor or individual service provider that cannot be terminated on 60 or fewer days’ notice without any liability or financial obligation incurred by any Acquired Company;
(v) agreements, indentures or other evidence of Indebtedness relating to Indebtedness for borrowed the borrowing of money of by the Company or its Subsidiaries Acquired Companies or to the mortgaging, pledging or otherwise placing of a Lien (other than a Permitted Lien) on any material assets or properties portion of the Company or its Subsidiariesassets of the Acquired Companies;
(iivi) guaranties of any obligation for Borrowed Money Debt or other material guaranties;
(vii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any individual lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the aggregate annual rental payments do not exceed (or are expected to exceed) $500,000100,000 in any 12-month period;
(iiiviii) any Contract lease or agreement under which the Company or its Subsidiaries it is lessor of or permits any third party to hold or operateoperate any property, real or personal, for which the aggregate rental payments exceed (or are expected to exceed) $100,000 in a 12-month period;
(ix) other than purchase orders entered into in the ordinary course of business, any Contracts with any customers or suppliers of the Acquired Companies, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries case involving consideration in excess of $1,000,000 over the life 750,000;
(x) Contracts containing any grant, license, sublicense, right, consent, waiver, permission or covenant not to assert any claims relating to or under any Intellectual Property (A) by any of the Contract Acquired Companies to a third party or (B) by a third party to any of the Acquired Companies (excluding licenses of commercially available, non-customized, off-the-shelf Software available on standard terms for a potential annual or aggregate license fee (whichever is higher) of no more than $50,000);
(xi) Contracts providing for the invention, creation, conception or other Contract with respect to material Company Licensed development of any Intellectual Property (A) by any of the Acquired Companies for any third party, (B) by any third party for any of the Acquired Companies (other than any Non-Scheduled Personnel IP Contracts) or (C) jointly by any of the Acquired Companies and any third party;
(xii) all Contracts providing for the assignment or transfer of any ownership interest in any Intellectual Property by (A) any of the Acquired Companies to any third party or (B) any third party to any of the Acquired Companies (other than any Personnel IP Contracts);
(vxiii) any Contract that (A) limits Contracts prohibiting or purports to limit, restricting in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict respect the ability of the any Acquired Company or its Subsidiaries to sellengage in any business, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, to operate in any geographical area or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, compete with any Person;
(ixxiv) Contracts relating to the acquisition or disposition (whether in one transaction or a series of transactions and whether by merger, sale, lease, purchase or otherwise) of any Contract required to be disclosed on Section 3.19 equity interests, operating business, or material assets of the Company Disclosure Scheduleany Person or material assets or material line of business;
(xxv) any each joint venture Contract, partnership agreement, limited liability company agreement, strategic alliance agreement or other similar Contract with a third party;
(xvi) Contracts providing for the grant of an option or a first-refusal, first-offer or similar preferential right to purchase, lease or acquire any material asset of the Acquired Companies;
(xvii) Contracts granting exclusivity, “most-favored nation”, “take or pay” or similar rights, or that require or purport to require any Acquired Company to acquire all or a specified portion of its requirements of a particular material good or service from any Person;
(xviii) Contracts with any supplier (A) that is a sole source supplier to the Acquired Companies or (B) from which the Acquired Companies source substantially all of their supply of any material product or service, except in each case where the Acquired Companies would likely be able to replace such source of supply with a substitute supply at substantially the same volume and quality, on substantially comparable terms and without material delay;
(xix) Contracts under which any of the compensation or benefits thereunder, to any Person that is a party thereto, shall be increased, or the vesting of benefits of which shall be accelerated, by the consummation of the Transactions or the value of any of the benefits of which shall be calculated on the basis of any of the Transactions, excluding any Multiemployer Plan or any Company Plan;
(xx) Contracts that currently are, or at any point in the three-year period ending on the date of this Agreement were, in effect (A) to which any present or former director, officer, employee, stockholder or holder of derivative securities of the Acquired Companies, or any member of any such Person’s immediate family, or any entity owned or controlled by any such Person, is a party, excluding any Multiemployer Plan or any Company Plan or other benefit or compensation plan or other plans, programs, policies, commitments or arrangements or (B) pursuant to which any Acquired Company receives any “preferred pricing” or similar benefit that is utilized by such Acquired Company in the ordinary course;
(xxi) any Contracts (A) of the Company or its Subsidiaries (or Parent or any involving the payment of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments amounts calculated based on upon the revenues or income of any researchAcquired Company or income or revenues related to any product of any Acquired Company that deviate from the Company’s standard form agreements made available to Buyer, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which with the Company Company’s top 10 licensing partners as measured by revenue during the 12 months prior to the date of this Agreement;
(xxii) Contracts in respect of any settlements or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights coexistence agreements with respect to any material Company Product pending or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract threatened action (A) requiring monetary payments by the Company or its Subsidiaries after entered into within 12 months prior to the date of this Agreement, or (B) with respect to which any unsatisfied amounts or ongoing obligations remain outstanding;
(xxiii) any Company Related Party Contracts;
(xxiv) Contracts with any Governmental Authority or any Contract with a third party that is a party to a Contract with a Governmental Authority with respect to the subject matter of such underlying Contract;
(xxv) any documents not otherwise covered by (i)-(xxiv) of this Section 5.09(a) that may be required to be filed by the Company as an exhibit for a registration statement on Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (C10) that imposes any material, nonof Regulation S-monetary obligations on K under the Securities Act as if the Company or its Subsidiaries (or Parent or any of its Affiliates after was the Closing)registrant; and
(xiiixxvi) each collective bargaining agreement any written offer or other Contract with the Company or its Subsidiariesproposal that, on the one handif accepted, and would constitute any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeforegoing.
(ib) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, and enforceable in accordance with its terms against is the legal, valid and binding obligation of either the Company or its Subsidiaries a Subsidiary of the Company that is party thereto, and, to the Company’s Knowledgeknowledge, of the counterparties other parties thereto enforceable against each of them in accordance with its terms (in each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equityEnforceability Exceptions). Except as set forth on Schedule 5.09(b), (ii) the no Acquired Company or its Subsidiaries is in material default under any Material Contract, and, to the Company’s Knowledgeknowledge, the counterparties thereto are other party to each of the Material Contracts is not in material breach ofdefault thereunder. Except as set forth on Schedule 5.09(b), or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach ofor default on the part of the Company, or default under, any Material Contract by Subsidiary of the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge, any other party under any Material Contract. To the counterparties knowledge of the Company, (i) no party to any Material Contract has exercised any termination rights with respect thereto, and (ii) no party has given written notice of any material dispute with respect to any Material Contract. The Company has made available to Parent true Buyer true, correct and complete copies of each Material Contract, together with all Material Contracts in effect as of the date hereof (other than purchase ordersamendments, invoices, and similar confirmatory modifications or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)supplements thereto.
Appears in 2 contracts
Sources: Merger Agreement (Edify Acquisition Corp.), Merger Agreement (Unique Logistics International, Inc.)
Material Contracts. (a) Section 3.13(aSchedule 3.16(a) sets forth a list of all Contracts (other than purchase, sale or service orders executed in the ordinary course of business) of the Company Disclosure Schedule contains a listing of all Contracts type described in clauses (i) through (xiii) below to which, as of which the Business Entities are a party that are in effect on the date of this Agreement, the Company or its Subsidiaries Agreement (each contract that is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulelisted in Schedule 3.16(a), the being a “Material ContractsContract”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness agreement for borrowed money the purchase by any Business Entity of metal or metal additives that has a remaining term of more than one year and is not terminable without penalty with ninety (90) days’ notice and requires annual payments by the Company Business Entities of $5,000,000 or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesmore;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property agreement (other than real property), owned for the purchase of metal or metal additives) for the purchase or sale by any other PersonBusiness Entity of materials, except for any lease supplies, goods, services, equipment or agreement under which assets that has a remaining term of more than one year and is not terminable without penalty within ninety (90) days’ notice and requires annual payments to, or receipts by, the aggregate annual rental payments do not exceed Business Entities of $500,0002,500,000 or more;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each caseother than exclusive distribution agreements, any tangible property (other than real property), owned agreement that contains noncompetition covenants that prohibit the Business Entities from freely engaging in any business or controlled by the Company in any geographic territory or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000market;
(iv) any (A) joint venturemortgage, profit-sharingindenture, partnershipnote, collaboration, co-promotion, commercialization bond or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected other agreement relating to require (based on any occurrence, development, activity or event contemplated Indebtedness incurred by such Contract), aggregate payments to or from the Company or its Subsidiaries Business Entities with an outstanding principal amount in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)250,000;
(v) any Contract that (A) limits partnership, joint venture, franchise or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or other similar equity investment agreements with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingthan a Business Entity;
(vi) any Contract agreement granting any of the Business Entities the right to use, exploit or practice any Intellectual Property owned by third parties (other than COTS Licenses) requiring any future capital commitment or capital expenditure (or series of capital expenditures) annual payments by the Company Business Entities of $500,000 or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementmore;
(vii) except for transactions between or among Business Entities, any Contract requiring agreement entered during the Company three-year period prior to the date of this Agreement relating to the acquisition or its Subsidiaries to guarantee the Liabilities disposition of any Person business (other than the Company whether by merger, sale of stock, sale of assets or a Subsidiaryotherwise) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess having an aggregate purchase price of $200,0005,000,000 or more;
(viii) an employment agreement or employment contract between Parent, Aleris International or any Contract under Business Entity in which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment amount of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount base salary is in excess of $200,000 or made any capital contribution to, or other investment in, any Person165,000;
(ix) any Contract required to be disclosed on Section 3.19 with any Governmental Entity for the sale of the Company Disclosure Schedulegoods or services involving annual payments in excess of $500,000;
(x) any lease, sublease or similar Contract (including sale-leaseback arrangements) for personal property with any Person person involving annual payments in excess of $500,000 and under which (A) pursuant to which the Company any Seller or its Subsidiaries (Business Entity is lessee of, or Parent holds or uses, any of its Affiliates after the Closing) is or may be required to pay milestonesmachinery, royalties equipment, vehicle or other contingent payments based on tangible personal property owned by any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events person or (B) under which the Company any Seller or its Subsidiaries grants to Business Entity is a lessor or sublessor of, or makes available for use by any Person Person, any right of first refusal, right of first negotiation, option to purchase, option to license tangible personal property owned or any other similar rights with respect to any material Company Product leased by such Seller or any material Intellectual PropertyBusiness Entity;
(xi) any Contract for entered into in connection with the disposition settlement or other resolution of any portion of Action pursuant to which any Seller (solely in connection with the assets Business) or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of Business Entity has any other Person (ongoing performance obligations, other than acquisitions Contracts entered into in connection with the settlement or dispositions made in the Ordinary Course resolution of Business), severance or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationworkers’ compensation matters;
(xii) any settlement, conciliation Contract granting the other party to such Contract or similar Contract a third party “most favored nation” status that has a remaining term of more than one year and is not terminable without penalty with ninety (A90) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)days’ notice; andor
(xiii) each collective bargaining any agreement associated with h▇▇▇▇▇, derivatives or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andinstruments, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticehaving a termination value in excess of $1,000,000.
(ib) Sellers have made available to Buyer accurate and complete copies of each Material Contract. Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and is enforceable by the Business Entities, as applicable, in accordance with its terms against the Company or its Subsidiaries andterms, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other except as limited by Laws affecting generally the enforcement of creditors’ rights and subject to generally, by general equitable principles or by the discretion of equityany Governmental Authority before which any Action seeking enforcement may be brought. Except as set forth in Schedule 3.16(b)(ii), neither Parent nor Sellers have received written notice of any termination, cancellation or threatened termination or cancellation by any party to any Material Contract.
(iic) None of the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto Business Entities are not in default of in any material breach ofrespect, or have received any written notice of any default underor event that, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time time, or both) , would result constitute a default in a any material breach of, or default under, respect by the Business Entities under any Material Contract by Contract. To the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as knowledge of the date hereof (Sellers, no other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties party to a particular Material Contract or group of Contracts and that, is in each case, do not contain default in any material executory or continuing terms, conditions, obligations or rights)respect of such Material Contract.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Aleris Corp), Purchase and Sale Agreement (Signature Group Holdings, Inc.)
Material Contracts. (a) Section 3.13(a) As of the date hereof, there are no Contracts to which it or any of its Subsidiaries is a party (other than Reinsurance Contracts, Real Property Leases and Benefit Plans): (i) that are required to be described in, or filed as an exhibit to, any of its SEC Reports that are not so described or filed as required by the Securities Act or the Exchange Act, (ii) that contain any provisions restricting the ability of it or any of its Subsidiaries, or which, following the consummation of the Amalgamation, would restrict the ability of Axis or any of its Subsidiaries or PRE or any of its Subsidiaries or any of their successors, including the Amalgamated Company Disclosure Schedule contains and its Subsidiaries, to compete or transact in any business or with any Person or in any geographic area or grants a listing right of all exclusivity to any Person, (iii) pursuant to which any indebtedness of it or any of its Subsidiaries is outstanding or may be incurred in excess of $50 million or pursuant to which it or any of its Subsidiaries guarantees any indebtedness of any other Person (other than it or any of its Subsidiaries) (except for trade payables arising in the ordinary course of business), (iv) involving any material partnership, joint venture or other similar arrangement with any other Person (other than it or any of its Subsidiaries), relating to the formation, creation, operation, management or control of any such partnership or joint venture, (v) that involves or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $5 million in any twelve-month period, other than: (A) Contracts that can be terminated by it or any of its Subsidiaries on less than 90 days’ notice without payment by it or any of its Subsidiaries of any penalty, or (B) Assumed Reinsurance Contracts, (vi) that have been entered into since January 1, 2012 or otherwise provide for material ongoing obligations of it or any of its Subsidiaries and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business (excluding, for the avoidance of doubt, acquisitions or dispositions of Investment Assets, and immaterial tangible assets in the ordinary course of business), (vii) that outsources any material function or part of its business or that of any Subsidiary or Subsidiaries (viii) that prohibits or restricts the payment of dividends or distributions in respect of its shares or capital stock or those of any of its Subsidiaries, prohibits the pledging of the shares or capital stock of it or any of its Subsidiaries or prohibits or restricts the issuance of any guarantee by it or any of its Subsidiaries, (ix) that restricts its ability to incur indebtedness or guarantee the indebtedness of others, or (x) in its case (and not in the case of any of its Subsidiaries) that are guarantees, including of obligations, suretyship contracts, performance bonds or other form of guaranty agreement or capital maintenance agreements or any keep ▇▇▇▇▇, or (xi) Contracts or agreements that contain a put, call or similar right pursuant to which it or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $50 million (each such Contract described in clauses (i)-(xi), other than any Reinsurance Contract, Real Property Lease or Benefit Plan, a “Material Contract”).
(i) through Each Material Contract is a legal, valid and binding agreement of it and its Subsidiaries to the extent such Person is a party thereto and, to its Knowledge, each other party thereto is in compliance in all material respects with its terms and is in full force and effect, except where the failure to be valid, binding or in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (xiiiii) below it and each of its Subsidiaries and, to whichits Knowledge, each other party thereto, has performed all obligations required to be performed by such Person under such Material Contract, except where such noncompliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) neither it nor any of its Subsidiaries has received notice of the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of it or any of its Subsidiaries under any Material Contract, except where such default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iv) there are no events or conditions which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(c) Section 3.17(c) of its Disclosure Letter contains a true and correct list, as of the date of this Agreement, the Company or its Subsidiaries is a party or of each Material Contract entered into by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent it or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Agreement and Plan of Amalgamation (Partnerre LTD), Agreement and Plan of Amalgamation (Axis Capital Holdings LTD)
Material Contracts. (a) Section 3.13(aSchedule 5.9(a) sets forth an accurate and complete list of all of the Company Disclosure Schedule contains a listing following Contracts to which Seller or any of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries Affiliates is a party or by is otherwise bound with respect to the Business or the Purchased Assets which they are boundin effect on the Effective Date, other than a Company Benefit Plan, and excluding Easements (each such Contract that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are is required to be set forth listed on Section 3.13(aSchedule 5.9(a), except for those referenced in clause (xii) of the Company Disclosure Schedulebelow, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company all Transferred Contracts that individually involved expenditures or its Subsidiaries issued purchase orders (whether by or to Seller or an Affiliate thereof) in excess of $1,500,000 in the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariescalendar year ended December 31, 2024;
(ii) all Transferred Contracts between Seller and any Contract under which of its Affiliates that will not be terminated prior to Closing that individually is expected to involve future expenditures (whether by or to Seller) in excess of $1,500,000 in any year;
(iii) all collective bargaining agreements or other agreements with any labor union, employees’ association, or other employee representative of a group of Business Employees (“Collective Bargaining Agreements”);
(iv) all Transferred Contracts providing for the Company extension of credit by Seller in excess of $1,500,000 in any year, other than the extension of credit to vendors in the Ordinary Course of Business;
(v) all Transferred Contracts for gas transportation or its Subsidiaries is lessee gas storage that involved payments by the Business in excess of $1,500,000 in the year ended December 31, 2024;
(vi) all Transferred Contracts restricting the right of Seller to compete with any Person or holds in any line of business or operatesgeographic area or containing exclusivity, fixed pricing, “most favored nations” or similar obligations, in each case, that would be binding on, or otherwise impair Buyer’s and its Affiliates’ operation of, the Business after the Closing;
(vii) all Transferred Contracts concerning the use, licensing, development or maintenance of Intellectual Property or IT Assets, other than nondisclosure or confidentiality agreements entered into in the Ordinary Course of Business or agreements with Business Employees or independent contractors entered into in the Ordinary Course of Business on the Seller’s or an Affiliate’s form agreement;
(viii) all Contracts with any tangible property Governmental Entity relating to the Business, the Purchased Assets or the Assumed Obligations (other than real property), owned by customer Contracts in the Ordinary Course of Business) that will involve payment after the Effective Time of any material amount or impose any other Person, except for material obligation (including any lease or agreement under which conduct-related obligation) after the aggregate annual rental payments do not exceed $500,000Effective Time;
(iiiix) all Leases that are material to the operation of the Business as currently conducted with an annual base rent in excess of $5,000,000;
(x) all partnership, joint venture, and joint ownership agreements, and all similar material agreements (however named) involving a sharing of assets, profits, losses, costs, or Liabilities relating to the Business, the Purchased Assets or the Assumed Obligations;
(xi) each Contract that requires any capital commitment or capital expenditure (including any series of related capital expenditures) in respect of the Business of greater than $5,000,000; and
(xii) all Shared Contracts that individually involved expenditures or issued purchase orders (whether by or to Seller or an Affiliate thereof) with respect to the Business in excess of $1,500,000 in the calendar year ended December 31, 2024.
(b) Seller has made available to Buyer copies of all Material Contracts together with all material amendments, waivers, and other changes thereto, which are correct and complete in all material respects, except as set forth on Schedule 5.9(b). Except as set forth on Schedule 5.9(b): (i) each Material Contract under which is a valid and binding obligation of Seller, enforceable against it in accordance with its terms, including by estoppel or waiver by the Company parties thereto, and, to Seller’s Knowledge, is a valid and binding obligation of each other party thereto, enforceable against it in accordance with its terms, including by estoppel or its Subsidiaries is lessor of or permits any third party to hold or operatewaiver by the parties thereto, in each casecase except as the same may be limited by the Remedy Exceptions; and (ii) neither Seller, nor, to Seller’s Knowledge, any tangible property other party thereto, is (other than real property)or, owned upon the passage of time or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contractgiving of notice, or similar both, would be) in default under or breach of any Material Contract, in each case, which requiresexcept for breaches, violations, or defaults as would reasonably not be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business ormaterial, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spire Missouri Inc), Asset Purchase Agreement (Duke Energy Florida, LLC)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, complete and correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule following material contracts have previously been made available to Parent Pegasus as part of the virtual dataroom process or its agents or representatives, together with all amendments thereto):otherwise:
(i) any Contract relating to Indebtedness for borrowed money of the Company or any of its Subsidiaries (other than any such Contracts relating to Indebtedness solely owing to the Company or any of its Subsidiaries) or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or any of its Subsidiaries;
(ii) any Contract for the disposition of any portion of the assets or business of the Company or any of its Subsidiaries or for the acquisition by the Company or any of its Subsidiaries of the assets or business of any other Person in each case for an aggregate purchase price in excess of €15,000,000 (other than acquisitions or dispositions made in the ordinary course of business), or under which the Company or any of its Subsidiaries has any continuing obligation with respect to an "earn-out", contingent purchase price or other contingent or deferred payment obligation;
(iii) any Contract under which the Company or any of its Subsidiaries is a lessee of or holds hold or operatesoperate, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $€500,000;
(iiiiv) any Contract under which the Company or any of its Subsidiaries is are a lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or any of its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000€500,000;
(ivv) any Contract with outstanding obligations for the sale or purchase of personal property, fixed assets or real estate having a value in excess of €500,000, other than sales or purchases in the ordinary course of business consistent with past practices and sales of obsolete equipment;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or any of its Subsidiaries in an amount in excess of (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract €500,000 annually or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)€4,000,000 over the term of the agreement;
(vvii) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent the TopCo or any of its Affiliates after the Closing, (B) contains any exclusivity, “"most favored nation” " or similar provisions, obligations or restrictions in favor of the Company's or such Subsidiary's counterparty to such Contract, (C) contains "take or pay", "requirements" or other similar provisions obligating the Company or any of its Subsidiaries to provide the quantity of goods or services required by another Person, or (CD) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in the case of each caseof the foregoing clauses (A), (B), (C) and (D), in any material respect or that would so limit or purports to limit, in any material respect, Parent TopCo or any of its Affiliates after the Closing;
(viviii) any Contract requiring that (A) relates to (1) the licensing of, or grant of other rights under, material Intellectual Property to or from the Company or any future capital commitment Subsidiaries, or capital expenditure (2) the ownership, development or series use of capital expendituresany Intellectual Property, or (B) affects the Company's or any Subsidiaries' ability to use, enforce or disclose any Intellectual Property in connection with the resolution of any claim or dispute related to Intellectual Property, excluding in the case of either (A) or (B) (x) non-exclusive end-user licenses for unmodified, commercially available, off-the-shelf Software, with an aggregate fee of less than €300,000, and (y) non-exclusive licenses granted by the Company or its Subsidiaries a Subsidiary to customers in the ordinary course of business consistent with past practice;
(ix) any Contract that is a hosting agreement or a co-location agreement with an amount aggregate fee for hosting services in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement€500,000;
(viix) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a any Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a any Subsidiary, in each case in excess of $€200,000;
(viiixi) any Contract under which the Company or its Subsidiaries any Subsidiary has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person (other than between the Company and any Subsidiary) outside of the Ordinary Course ordinary course of Business business or, individually or in the aggregate, in an amount in excess of $200,000 €1,500,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation settlement or similar Contract (A) requiring monetary the performance of which would be reasonably likely to involve any payments by in excess of €500,000 in the Company or its Subsidiaries aggregate after the date of this Agreement, (B) with a Governmental Authority Authority, or (C) that imposes or is reasonably likely to impose, at any materialtime in the future, any material non-monetary obligations on the Company or any of its Subsidiaries (or Parent TopCo or any of its Affiliates after the Closing); and;
(xiii) each collective bargaining agreement or other any Contract with the Company a director, shareholder, executive officer, other employee or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees individual service provider of the Company or its Subsidiaries, on the other handin each case, with annual base compensation in excess of €500,000 or that (A) provides for Change of Control Payments or (B) provides for retention bonuses, severance, or similar payments in excess of €500,000;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member Lease involving annual lease payments in excess of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)€500,000;
(xv) any employment(A) material advertising, consultingagency, bonusoriginal equipment manufacturer, commissions dealer, distributors, joint marketing, joint development, research and development or other similar Contract, and (B) any Contract establishing any joint venture, profit-sharing, partnership, co-promotion, commercialization, strategic alliance or other compensation Contract with an employee collaboration that is material to the business of the Company and its Subsidiaries taken as a whole (other than joint ventures, profit-sharing, partnerships, co-promotion, commercialization, strategic alliances, and other collaborations entered into for purposes of a specific project or individual consultant or independent contractor, involving aggregate payments group of more than $500,000 per yearprojects and which are not material to the business of the Company and its Subsidiaries taken as a whole);
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries any Subsidiary in excess of $300,000 €700,000 or (B) aggregate payments to or from the Company or its Subsidiaries any Subsidiary in excess of $1,500,000 €2,500,000 over the life term of the agreement; and
(xvii) any collective bargaining agreement andor other Contract with any labor union, works council or labor organization (each, a "Labor Agreement").
(b) Except, in each case, that is as would not terminable by reasonably be expected to be, individually or in the applicable aggregate, material to the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, taken as applicablea whole, to the Company’s Knowledge, the counterparties thereto, and knowledge each Material Contract is (i) in full force and effect and (ii) a legal, valid and binding obligation of the Company or any of its Subsidiaries party thereto, enforceable in accordance with its terms against the Company or its Subsidiaries party thereto and, to the knowledge of the Company’s Knowledge, the counterparties thereto (other parties thereto, in each case, subject to applicable bankruptcythe Enforceability Exceptions. Except, insolvencyin each case, reorganizationas would not reasonably be expected to be, moratorium individually or other Laws affecting generally in the enforcement of creditors’ rights aggregate, material to the Company and subject to general principles of equity)its Subsidiaries, (ii) taken as a whole, there is no material breach or default by the Company or any of its Subsidiaries or, to the knowledge of the Company, any third party under any Material Contract, and, to the knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iiiA) no event has occurred that which (with or without due notice or lapse of time or both) would result in constitute a material breach or default or would permit termination of, or default undera material modification or acceleration thereof by any party to such Material Contract, any and (B) no party to a Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties has claimed a force majeure with respect thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatExcept, in each case, do as would not contain reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, since December 31, 2019 through the date of this Agreement, neither the Company nor any material executory of its Subsidiaries have received notice of (i) any breach or continuing termsdefault under any Material Contract or (ii) the intention of any third party under any Material Contract to cancel, conditionsterminate or modify the terms of any such Material Contract, or accelerate the obligations of the Company or rights)any of its Subsidiaries thereunder.
Appears in 2 contracts
Sources: Business Combination Agreement (Pegasus Digital Mobility Acquisition Corp.), Business Combination Agreement (Pegasus Digital Mobility Acquisition Corp.)
Material Contracts. (a) Section 3.13(a) Schedule 6.11 sets forth all of the Company Disclosure following Orders or Contracts to which any Seller is a party or by which it is bound and that are currently in effect (or by which the Potential Acquired Assets may be bound or affected) other than the Leases (collectively, whether or not disclosed on Schedule contains a listing of all Contracts described in clauses 6.11, the “Material Contracts”):
(i) through with any labor union or association representing any Employees of any Seller;
(xiiiii) below for the sale after the date hereof of any Potential Acquired Asset owned or used by Sellers for consideration in excess of $15,000,000;
(iii) relating to whichthe pending acquisition by any Seller of any operating business or the capital stock of any other Person;
(iv) which is an IP License with respect to which annual payments or consideration furnished by or to Sellers pursuant to such IP License with respect to the Business is in excess of fifteen million dollars ($15,000,000) in the Current Fiscal Year (other than, (A) in the case of Inbound IP Licenses, (x) off-the-shelf, non-customized computer programs, and (y) non-exclusive licenses granted by suppliers and other service providers of Sellers, in each case, to the extent necessary to use, sell and offer to sell the products and services of such suppliers or service providers, as applicable, and entered into in the Ordinary Course of Business; and (B) in the case of Outbound IP Licenses, non-exclusive licenses to customers, suppliers, vendors and other service providers of Sellers, in each case to the extent necessary for their respective use of the products and services of the Business or for the manufacture of products on behalf of Sellers or provision of services to Sellers in connection therewith and entered into in the Ordinary Course of Business);
(v) which involve any Potential Transferred Agreement (other than purchase orders entered into in the Ordinary Course of Business) the performance of which involves payment by or to any of Sellers of consideration in excess of $15,000,000 over the Current Fiscal Year and which cannot be canceled by notice of ninety (90) days or fewer without penalty or payment; and
(vi) which regard the employment, services, consulting, termination or severance from employment relating to or for the material benefit of any director, officer, employee, independent contractor or consultant of any Seller and require annual payments by any Seller in excess of $400,000.
(b) Sellers have delivered to Buyer true and complete copies of such Material Contracts and any and all amendments, modifications, supplements, exhibits and restatements thereto and thereof in effect as of the date of this Agreement; provided, the Company or its Subsidiaries is a party or by which they are boundhowever, other than a Company Benefit Plan, and that are Sellers shall not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestonesdeliver any Material Contract or amendment, royalties modification, supplement, exhibit or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which restatement thereto that cannot be located notwithstanding the Company or its Subsidiaries grants reasonable efforts of Sellers to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any locate such document if and only if such Material Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticean Assigned Agreement.
(ic) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, has not been amended, modified or supplemented and enforceable in accordance with its terms against is the Company or its Subsidiaries andvalid and binding obligation of the Seller party thereto, and to the Company’s KnowledgeKnowledge of Sellers, the counterparties thereto (subject to applicable each other party thereto, in each case except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting now or hereafter in effect relating to creditor’s rights generally the enforcement of creditors’ rights and subject to or general principles of equity), .
(iid) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, If any Material Contract were to be designated by Buyer for assignment as an Assigned Agreement, upon entry of the Approval Order and (iii) payment of the Cure Costs, no event has occurred that (with Seller is in breach or without due notice or lapse of time or both) would result in a material breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Contract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
Material Contracts. (a) Except as set forth in Section 3.13(a3.01(m) of the Company Aztar Disclosure Schedule contains Letter, neither Aztar nor any of its subsidiaries is a listing party to or bound by, as of the date hereof, any of the following (whether or not in writing), collectively with all exhibits and schedules to such Contracts:
(i) any agreement or series of related agreement providing for the acquisition or disposition of securities of any person or any assets, in each case involving more than $1,000,000 individually or in the aggregate, other than in the ordinary course of business consistent with past practice or in connection with the capital expenditure budgets included in Section 4.01(a)(xi) of the Aztar Disclosure Letter;
(ii) any Contract that imposes payment, cancellation penalties or other obligations in connection with the redevelopment or future operation (other than ordinary course hotel operations) of all or any portion of Aztar's property, facility or operations in Las Vegas, Nevada (the "Las Vegas Site");
(iii) any Contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $1,000,000; and
(iv) any Contract that would be required to be filed as an exhibit to an Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (the Contracts described in clauses (i) through - (xiiiiv), together with all exhibits and schedules to such Contracts, being the "Material Contracts"). A true and complete copy of each Material Contract has previously been delivered or made available to Pinnacle. Except as individually or in the aggregate has not had and would not reasonably be expected to have a material adverse effect on Aztar, each Contract by which Aztar or its subsidiaries is bound is a valid and binding agreement of Aztar or one of its subsidiaries enforceable against Aztar or one of its subsidiaries, and, to the knowledge of Aztar, the counterparties thereto in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors rights generally and to equitable principles (whether considered in a proceeding at law or in equity). Aztar and its subsidiaries are not (and to the knowledge of Aztar, no counterparty is) below to in breach or violation of or in default in the performance or observance of any term or provision of, and no event has occurred which, as with lapse of the date time or action by a third party or Aztar, would result in a default under, any Contract to which Aztar or any of this Agreement, the Company or its Subsidiaries subsidiaries is a party or by which they are boundany of them is bound or to which any of their property is subject, other than a Company Benefit Planbreaches, violations and that are not expired or defaults which have not been terminated had and would not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orexpected, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in have a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in adverse effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)on Aztar.
Appears in 2 contracts
Sources: Merger Agreement (Aztar Corp), Merger Agreement (Aztar Corp)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of Except for this Agreement, the Company Benefit Plans and agreements filed as exhibits to the Company SEC Documents or to any forms, reports or documents filed with the SEC subsequent to the date hereof, neither the Company nor any of its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating coal supply agreement, coal transportation agreement, power sale, power purchase or offtake agreement or other fuel purchase, sale or transportation agreement that (A) is subject to Indebtedness for borrowed money profit-sharing arrangements where the amount required to be shared with a third party could reasonably be expected to exceed $100 million over the life of the transaction, (B) contains “take or pay,” “liquidated damages” or “termination, closeout or liquidation” provisions associated with a transaction with a notional amount of $500 million or more or (C) creates actual indebtedness of the Company or its Subsidiaries or results in imputed indebtedness to the placing Company as assigned by Standard & Poor’s or ▇▇▇▇▇’▇ in an amount greater than $100 million (using customary discounting); provided, for the purposes of this Section 4.21(a)(i), any imputed indebtedness amount associated with a Lien (other than a Permitted Lien) on any material assets or properties of physical power transaction entered into by the Company or any of its SubsidiariesSubsidiaries (the “Company Power Purchaser”) shall be net of expected independent system operator (“ISO”) revenues related to the capacity rights and other related energy products assigned to the Company Power Purchaser in such transaction for the years in which such capacity or other related energy products have been sold prior to the execution of such transaction in a forward ISO capacity auction; provided, however, such netting only shall occur with respect to a power transaction if the transaction (i) specifies the generation unit which will be the source of the power, capacity and other related energy products delivered to the Company Power Purchaser and (ii) assigns the rights to the ISO revenues for such capacity or other related energy products in such years to the Company Power Purchaser;
(ii) any Contract under which imposing any material restriction on the right or ability of the Company or any of its Subsidiaries is lessee of or holds or operates, in each case, any tangible property to (other than real property), owned by A) compete with any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits acquire or purports to limit, in any material respect, the freedom dispose of the Company securities of another Person or its Subsidiaries to (C) engage or compete in any line of business or with any Person or in any geographic area or that would so limit contains restrictions on pricing or purport exclusivity or non-solicitation provisions with respect to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;customers; or
(viiii) any Contract requiring any future capital commitment with an aggregate principal amount, or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in providing for an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryaggregate obligation, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person 50 million (A) pursuant to which the Company or its Subsidiaries (or Parent or evidencing any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) credit facility of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to guaranteeing obligations for borrowed money or from the Company or its Subsidiaries in excess other obligations of $1,500,000 over the life a third party other than any Subsidiary. All Contracts of the agreement andtypes referred to in clauses (i), (ii) and (iii) in each case, this Section 4.21(a) and any Contract that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material a material Contract is valid and binding on the Company or its Subsidiaries, required to be filed as applicable, an exhibit to the Company’s KnowledgeAnnual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K of the SEC are referred to herein as “Company Material Contracts.”
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to, individually or in the counterparties aggregate, have a material impact on the Company. To the Knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to, individually or in the aggregate, have a material impact on the Company. Except as would not reasonably be expected to, individually or in the aggregate, have a material impact on the Company, each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company which is party thereto and, to the Knowledge of the Company, of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) the Company or its Subsidiaries and, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as discretion of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain court before which any material executory or continuing terms, conditions, obligations or rights)proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Constellation Energy Group Inc), Merger Agreement (Exelon Corp)
Material Contracts. (a) Section 3.13(a) of Other than this Agreement and the Company Disclosure Schedule contains Ancillary Documents to which SPAC is a listing of all Contracts described in clauses (i) through (xiii) below to which, party as of the date hereof or such other Ancillary Documents that SPAC shall execute after the date hereof and which are attached as exhibits hereto, Section 4.13(a) of this Agreementthe SPAC Disclosure Schedules set forth a true, correct and complete list of the Company or its Subsidiaries Contracts to which SPAC is a party or by which they are any of its properties or assets may be bound, other subject or affected, which (i) creates or imposes a Liability greater than $100,000, (ii) may not be cancelled by SPAC on less than sixty (60) days’ prior notice without payment of a Company Benefit Planmaterial penalty or termination fee or (iii) prohibits, and that are not expired prevents, restricts or have not been terminated and not including impairs in any Contracts pursuant to which material respect any business practice of SPAC as its business is currently conducted, any acquisition of material property by SPAC, or restricts in any material respect the Company has with no material outstanding ability of SPAC from entering into this Agreement or executory obligations Ancillary Documents or Liabilities consummating the Transactions (each such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleContract, the a “SPAC Material ContractsContract”). True, correct and complete copies of the All SPAC Material Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):the Seller.
(b) With respect to each SPAC Material Contract: (i) any the SPAC Material Contract relating to Indebtedness for borrowed money was entered into at arms’ length and in the ordinary course of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
business; (ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each SPAC Material Contract is valid legal, valid, binding and binding on the Company or its Subsidiaries, as applicableenforceable in all material respects against SPAC and, to the Company’s KnowledgeKnowledge of SPAC, the counterparties other parties thereto, and is in full force and effect and enforceable (except, in accordance with its terms against each case, as such enforcement may be limited by the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equityEnforceability Exceptions), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and ; (iii) SPAC is not in breach or default in any material respect, and no event has occurred that (with or without due notice or lapse the passage of time or both) giving of notice or both would result constitute such a breach or default in a any material breach ofrespect by SPAC, or default underpermit termination or acceleration by the other party, any under such SPAC Material Contract; (iv) no party to a SPAC Material Contract by the Company or its Subsidiaries has given written notice of or, to the Company’s KnowledgeKnowledge of SPAC, threatened any potential exercise of termination rights with respect to any SPAC Material Contract; and (v) to the counterparties thereto. The Company has made available Knowledge of SPAC, no other party to Parent true and complete copies of all any SPAC Material Contracts Contract is in effect as of the date hereof (other than purchase orders, invoicesbreach or default in any material respect, and similar confirmatory no event has occurred that with the passage of time or administrative documents that are ancillary to the main contractual relationship between the parties to giving of notice or both would constitute such a particular Contract breach or group of Contracts and thatdefault by such other party, in each case, do not contain or permit termination or acceleration by SPAC under any material executory or continuing terms, conditions, obligations or rights)SPAC Material Contract.
Appears in 2 contracts
Sources: Business Combination Agreement (Mountain Lake Acquisition Corp.), Business Combination Agreement (Mountain Lake Acquisition Corp.)
Material Contracts. (a) Neither the Company, its Subsidiaries, nor, to the knowledge of the Company, any other party, is in material default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Material Contracts to which it is a party; and, to the knowledge of the Company, there has not occurred any event that, with the lapse of time or giving of notice or both, could constitute such a material default under any Material Contract. Each of the Material Contracts is enforceable against the Company or applicable Subsidiary of the Company in accordance with its terms and, to the Company’s knowledge, is enforceable against other parties to such Material Contract in accordance with its terms.
(b) Section 3.13(a3.15(b) of the Company Disclosure Schedule contains sets forth a listing list as of all Contracts described in clauses the date of this Agreement of
(i) through all Contracts or letters of intent entered into after January 1, 2008, and all currently effective Contracts entered into before that date, regarding the acquisition of a Person or business, whether in the form of an asset purchase, merger, consolidation or otherwise to which the Company or any Subsidiary of the Company is a party;
(ii) all currently effective credit agreements, indentures, mortgages, security agreements and other Contracts related to any indebtedness for borrowed money of the Company or any of its Subsidiaries;
(iii) all joint venture or other similar Contracts to which the Company or any Subsidiary of the Company is a party;
(iv) all currently effective Contracts (including related Contracts) under which the Company or any Subsidiary of the Company has advanced or loaned or agreed to advance or loan to any other Person (together with such Person’s Related Persons) $75,000 or more;
(v) all currently effective guarantees by the Company or any Subsidiary of the Company of any obligations or liabilities of any other Person;
(vi) all Contracts or groups of related Contracts to which the Company or any of its Subsidiaries is a party the performance of which (i) since January 1, 2010 involved annual payments or receipts by the Company and its Subsidiaries of an aggregate amount in excess of $75,000, or would reasonably be expected to involve payments or receipts by the Company and its Subsidiaries after December 31, 2010 of an aggregate amount in excess of $75,000, and (ii) are not cancelable by the Company or any of its Subsidiaries on 60 days’ or less notice without premium or penalty;
(vii) all currently effective exclusive sales representative Contracts to which the Company or any Subsidiary of the Company is a party;
(viii) all currently effective Contracts under which the Company or any Subsidiary of the Company has granted any Person registration rights (including demand and piggy-back registration rights);
(ix) all currently effective Contracts purporting to restrict or prohibit the Company or any Subsidiary of the Company from engaging or competing in any business or engaging or competing in any business in any geographic area;
(x) all currently effective labor agreements, collective bargaining agreements or other labor related Contracts (including work rules and practices) to which the Company or any Subsidiary is a party with respect to any labor union, labor organization, trade union, works council or similar organization or association of employees;
(xi) all currently effective IP Contracts to which the Company or any Subsidiary of the Company is a party other than standard license agreements for commercially-available, off-the-shelf software having an acquisition price of less than $75,000 in the aggregate for each such software product or group of related software products;
(xii) any Contract which provides for termination, acceleration of payment or other special rights upon the occurrence of a change in control of the Company or any Subsidiary of the Company;
(xiii) below each Contract to whichwhich the Company or any Subsidiary is a party with any Governmental Entity;
(xiv) any Contract that is currently effective or that was executed after January 1, 2008 which provides for the purchase, sale or exchange of, or option to purchase, sell or exchange any real property to which the Company or any Subsidiary of the Company is a party;
(xv) any currently effective Contract relating to the development or construction of, or additions or expansions to, any real property that would cause the Company and its Subsidiaries to exceed the capital budget for such property listed in Section 3.15(b)(xv) of the Company Disclosure Schedule;
(xvi) any Contract relating to the operation or management of any Owned Real Property or any Leased Real Property to which the Company or any Subsidiary of the Company is a party;
(xvii) any hotel or other management agreement or franchise agreement to which the Company or any Subsidiary of the Company is a party;
(xviii) any Contract under which the Company or any of its Subsidiaries has agreed not to bring Litigation against any Person or under which any Person has agreed not to bring any Litigation against the Company or any of its Subsidiaries;
(xix) any Contract relating to Material Artwork to which the Company or any Subsidiary of the Company is a party;
(xx) all Contracts obligating the Company or any Subsidiary of the Company to indemnify any current or former director, officer, partner, member, trustee or employee of the Company or any Subsidiary of the Company; and
(xxi) all other Contracts which are material to the Company and its Subsidiaries taken as a whole. The Contracts referenced in this Section 3.15(b) are referred to herein collectively as the “Material Contracts”). The Company has furnished to Parent a correct and complete copy of each Material Contract. For purposes of this Agreement, a Contract will be considered to be currently effective if any Person currently has or in the future may have any right, remedy, benefit, obligation or liability thereunder.
(c) No Material Contract will, by its terms, (i) terminate or accelerate as a result of the transactions contemplated hereby or (ii) require any consent from any party thereto in order to remain in full force and effect immediately after the Effective Time.
(d) Section 3.15(d) of the Company Disclosure Schedule (i) lists all currently effective Contracts pursuant to which any Person has a right to a payment from the Company or any of its Subsidiaries based upon any current or future franchise, management, incentive or other fee earned by or paid to the Company or any of its Subsidiaries and (ii) identifies the specific current or future property or properties to which the Contract relates and the amount of the fee to which such Person has a right pursuant to the Contract.
(e) Section 3.15(e) of the Company Disclosure Schedule sets forth a list, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money agreements of the Company or its Subsidiaries with any executive officer or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties director of the Company or its Subsidiaries;
(ii) any Contract under which . No officer or director of the Company or its Subsidiaries is lessee of or holds or operatesCompany, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for or any lease “associate” (as such term is defined in Rule 14a-1 under the Exchange Act) of any such officer or agreement under which the aggregate annual rental payments do not exceed $200,000;
director, has any interest in any contract or property (iv) any (A) joint venturereal or personal, profit-sharingtangible or intangible), partnership, collaboration, co-promotion, commercialization or research or development Contractused in, or similar Contract, in each case, which requires, or would reasonably be expected pertaining to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition which interest would be required to be disclosed pursuant to Item 404(a) of Regulation S-K promulgated by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeSEC.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Purchase Agreement (Hospitality Properties Trust), Merger Agreement (Sonesta International Hotels Corp)
Material Contracts. (a) Section 3.13(a3.5(a) of the Company Disclosure Schedule contains Letter lists all material Contracts to which any Caravelle Company is a listing party, by which any Caravelle Company is bound or to which any Caravelle Company or any of all Contracts described its assets or properties are subject that are in clauses (i) through (xiii) below to which, effect as of the date of this AgreementAgreement and constitute or involve the following (together with all amendments, waivers or other changes thereto, each of the Company following, a “Material Contract”):
(i) obligations of, or its Subsidiaries is a party payments to, any of the Caravelle Companies of $1,000,000 or by which they are bound, more;
(ii) any outstanding Indebtedness (other than a Company Benefit Plancapitalized lease obligations incurred in the Ordinary Course) of $500,000 or more, and that are not expired or have not been terminated and not including any Contracts pursuant to which convertible debt/equity instruments;
(iii) any real property leasehold interest (“Real Property Lease”) involving aggregate payments in excess of $2,500 per month in the Company has with no material outstanding or executory obligations or Liabilities calendar year ended October 31, 2021;
(such Contracts as are iv) any IP Licenses required to be set forth listed on Section 3.13(a3.6(f) of the Company Disclosure ScheduleLetter;
(v) the grant of rights to manufacture, produce, assemble, license, market or sell any Company Products with an aggregate or one-time consideration exceeding $500,000;
(vi) Contracts with any Governmental Authority;
(vii) Contracts which (A) remain in effect immediately following the “Material Contracts”Closing and limit the right of any Caravelle Company to engage in any line of business or in any geographic area, or to Develop, manufacture, produce, assemble, license or sell any products or services (including the Company Products). , or to compete with any Person; (B) grant any exclusive license of material Intellectual Property to any Person that is not a Caravelle Company or (C) involve any joint, collaborative or other Development or contribution of any material Intellectual Property by any Caravelle Company;
(viii) Contracts between (A) on the one hand, any of the Caravelle Companies, and (B) on the other hand, any Company Shareholder, including all Side Letters;
(ix) Contracts that in the Company’s determination will be required to be filed with the Proxy/Registration Statement under applicable SEC requirements pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act if the Company was the registrant.
(b) True, correct and complete copies of the Contracts required to be listed on Section 3.13(a3.5(a) of the Company Disclosure Schedule Letter, have previously been delivered to or made available to Parent or its agents or representativesSPAC prior to the date of this Agreement, together with all amendments thereto):.
(ic) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do Except as have not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do had and would not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toa Company Material Adverse Effect, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the knowledge of the Company’s Knowledge, all Contracts to which any of the counterparties theretoCaravelle Companies is a party or by which its assets are bound are valid, binding and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto (subject to except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or and other Laws of general application affecting generally the enforcement of creditors’ rights generally and subject by Laws relating to general principles the availability of equity)specific performance, injunctive relief or other equitable remedies, and (ii) none of the Company or its Subsidiaries andCaravelle Companies (nor, to the knowledge of the Company’s Knowledge, any other party to any such Contract) is or, with the giving of notice, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) otherwise, would result be in a material breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as which any of the date hereof Caravelle Companies is or will be a party or by which its assets are bound.
(d) Since October 31, 2021, none of the Caravelle Companies has declared or paid any dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock or other equity interests or made any loans or advances to any Person, other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary ordinary advances to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)employees for travel expenses.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Pacifico Acquisition Corp.), Merger Agreement (Pacifico Acquisition Corp.)
Material Contracts. (a) Section 3.13(a) Set forth in Schedule 10.10 is a true and correct list of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below all plans, contracts or understandings providing for bonuses, pensions, options, deferred compensation, retirement payments, royalty payments, profit sharing or similar understandings with respect to whichany present or former officer, as of the date of this Agreementdirector or consultant, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease contract or agreement under which the aggregate annual rental payments do not exceed $500,000;
with any labor union, (iii) any Contract under which contract for the Company future purchase, acquisition or its Subsidiaries is lessor sale of products or permits any third party rights to hold products or operateperformance of services over a period of more than three months from the date hereof not made in the ordinary course of business, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint ventureall leases of real property, profit-sharingincluding all amendments and modifications, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, contract containing covenants limiting the freedom of Limco or any of the Company or its Limco Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
person; and (vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (every other than the Company or a Subsidiary) or pursuant contract to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company Limco or any of its Subsidiaries is a party which could reasonably be expected to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) in annual payments by or to Limco or from the Company or any of its Subsidiaries in excess of Two Hundred Thousand Dollars ($300,000 200,000) or (B) aggregate cumulative payments by or to or from any of the Company or its Limco Subsidiaries in excess of Two Hundred Thousand Dollars ($1,500,000 over 200,000), except for contracts entered into in the life ordinary course of the agreement and, in each case, that is not business which are terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
notice by either party thereto without penalty or liability (i) Each collectively, “Material Contract Contracts”). Limco heretofore has delivered or made available to Calavo true and correct copies of all Material Contracts. Neither Limco nor any of its Subsidiaries is valid and binding on the Company in default or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties theretobreach, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that or shall occur by reason of the transactions contemplated herein which would constitute a default or breach, where such default or breach would entitle another party thereto to accelerate or terminate such Material Contract or otherwise impose a material penalty or forfeiture thereunder (whether with or without due notice or notice, lapse of time or both) would result in the happening or occurrence of any other event), under any Material Contract. All Material Contracts are valid and binding agreements, and to the knowledge of Limco, there are no facts or circumstances which make a material breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, any party thereto likely to occur subsequent to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Limoneira CO), Stock Purchase Agreement (Calavo Growers Inc)
Material Contracts. (a) Except for this Agreement, the Parent Benefit Plans set forth on Section 3.13(a4.9(a) of the Company Parent Disclosure Schedule contains a listing and the agreements filed as exhibits to the Parent SEC Documents and except as set forth on Section 4.20 of all Contracts described in clauses (i) through (xiii) below to whichthe Parent Disclosure Schedule, as of the date of this Agreement, the Company or neither Parent nor any of its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating to Indebtedness for borrowed money “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesSEC);
(ii) any Contract under that (A) imposes any express restriction on the right or ability of Parent or any of its Subsidiaries to compete with any other person or acquire or dispose of the securities of another person (other than any agreement related to a Parent Takeover Proposal or that contains provisions prohibiting such disclosure), (B) contains an exclusivity or “most favored nation” clause that restricts the business of Parent or any of its Subsidiaries in a material manner, other than those contained in Parent Oil and Gas Leases, or (C) contains any minimum volume commitment to which the Company Parent reasonably expects that Parent or its Subsidiaries is lessee will be required to make annual payments in excess of $5 million or holds or operates, in each case, any tangible property (other for longer than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000one year;
(iii) any Contract under which the Company mortgage, note, debenture, indenture, security agreement, guaranty, pledge or its Subsidiaries is lessor other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations indebtedness of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually 30 million, except for any transactions among Parent and its wholly owned Subsidiaries or (B) $1,000,000 over the life of the agreementamong Parent’s wholly owned Subsidiaries;
(viiiv) any Contract requiring that provides for the Company acquisition, disposition, license, use, distribution or its Subsidiaries to guarantee the Liabilities outsourcing of any Person assets, services, rights or properties (other than the Company or a SubsidiaryParent Oil and Gas Interests) or pursuant with respect to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case Parent reasonably expects that Parent and its Subsidiaries will be required to make annual payments in excess of $200,00030 million;
(viiiv) any 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 (A) any such Contract solely between Parent and its Subsidiaries or among Parent’s Subsidiaries and (B) any customary joint operating agreements, unit agreements or participation agreements affecting the Parent Oil and Gas Interests;
(vi) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or that obligates Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment loans, advances or incur capital contributions to, or investments in, any Liability as a result person other than (A) advances for expenses required under customary joint operating agreements, unit agreements, participation agreements and customary advances to operators of the consummation Parent Oil and Gas Interests not covered by a joint operating agreement, unit agreement or participation agreement, (B) any loan or capital contribution to, or investment in, Parent or one of its wholly owned Subsidiaries or (C) advances to officer, director or employee of Parent or any of its Subsidiaries that is less than $100,000 individually to such person and $500,000 in the aggregate;
(vii) any contract that provides for the sale by Parent or any of its Subsidiaries of Hydrocarbons (A)(1) in excess of 7,500 barrels of oil equivalent of Hydrocarbons per day over a period of one month (calculated on a yearly average basis) or (2) for a remaining term greater than ten years or (B) which Parent reasonably expects that it will make aggregate payments in excess of $10 million in any of the transactions contemplated by this Agreementnext three succeeding fiscal years or $15 million over the life of the contract that, termination in the case of employment (A) and (B), has a remaining term of greater than 91 days and does not allow Parent or both; andsuch Subsidiary to terminate it without penalty to Parent or such Subsidiary within 91 days;
(xviiviii) any other Contract agreement pursuant to which Parent or any of its Subsidiaries has paid amounts associated with any Production Burden in excess of $10 million during the performance immediately preceding fiscal year or with respect to which Parent reasonably expects that it will make payments associated with any Production Burden in any of the next three succeeding fiscal years that could, based on current projections, exceed $10 million per year;
(ix) any agreement which requires is a joint development agreement, exploration agreement or acreage dedication agreement (excluding, in respect of each of the foregoing, customary joint operating agreements) that either (A) annual is material to the operation of Parent and its Subsidiaries, taken as a whole, or (B) would reasonably be expected to require Parent and its Subsidiaries to make expenditures in excess of $20 million in the aggregate during the 12-month period following the date hereof;
(x) any acquisition Contract that contains “earn out” or other contingent payment obligations (other than asset retirement obligations and plugging and abandonment obligations or customary indemnification obligations), that would reasonably be expected to result in payments to in respect of such “earn out” or from payment obligations after the Company date hereof by Parent or any of its Subsidiaries in excess of $300,000 20 million; and
(xi) each contract for lease of personal property or real property (Bother than the Parent Oil and Gas Interests) aggregate involving payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life 20 million in any calendar year or aggregate payments in excess of the agreement and, in each case, $75 million that are not terminable without penalty or other liability to Parent (other than any ongoing obligation pursuant to such contract that is not terminable caused by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30any such termination) within 60 days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary contracts related to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)drilling rigs.
Appears in 2 contracts
Sources: Merger Agreement (Carrizo Oil & Gas Inc), Merger Agreement (Callon Petroleum Co)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Except as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on in Section 3.13(a) 3.17 of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies as of the Contracts listed on Section 3.13(a) of date hereof, neither the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) nor any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third a party to hold or operate, in each case, any tangible property (other than real property), owned or controlled bound by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (Ai) limits is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC), (ii) would, after giving effect to the Merger, limit or purports to limit, in restrict the Surviving Corporation or any material respect, the freedom of the Company or its Subsidiaries to engage or compete any successor thereto, from engaging or competing in any line of business or with any Person or in any geographic area that it currently engages in or that would so limit contains exclusivity or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other non-solicitation provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementcustomers, (Biii) with a Governmental Authority limits or (C) that imposes any material, non-monetary obligations on otherwise restricts the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) ability of the Company or any of its Subsidiaries to pay dividends or make distributions to its stockholders or (iv) provides for the operation or management of any payment or incur any Liability as a result operating assets of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less any person other than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries. Each Contract of the type described in this Section 3.17, whether or not set forth on Section 3.17) of the Company Disclosure Schedule is referred to herein as applicablea “Company Material Contract.” Each Company Material Contract is a valid and binding obligation of the Company or its Subsidiary party thereto enforceable against the Company or its Subsidiary party thereto and, to the knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought) and, is in full force and effect, and each of the Company or and each of its Subsidiaries which is a party thereto has performed in all material respects all obligations required to be performed by it to the date hereof under each Company Material Contract and, to the knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any each other party to each Company Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result performed in a all material breach ofrespects all obligations required to be performed by it under such Company Material Contract, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatexcept, in each case, do not contain as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. None of the Company or any material executory of its Subsidiaries has knowledge of, or continuing termshas received written notice of, conditionsany violation of or default under (or any condition which with the passage of time or the giving of written notice would cause such a violation of or default under) any Company Material Contract to which it is a party or by which it or any of its properties or assets is bound, obligations except for violations or rights).defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or, after giving effect to the
Appears in 2 contracts
Sources: Merger Agreement (Vertro, Inc.), Merger Agreement (Vertro, Inc.)
Material Contracts. (a) Section 3.13(a4.09(a) of the Company Disclosure Schedule contains a listing of sets forth all Contracts described in clauses currently active: (i) through (xiii) below joint venture, partnership or similar Contracts entered into since April 1, 2014 to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) any of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent Company’s or any of its Affiliates after the ClosingSubsidiaries’ assets are subject to or bound; (ii) indemnification, (B) contains any exclusivityemployment, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement consulting or other Contract entered into since April 1, 2014 with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) executive officer of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated other than those Contracts entered into since April 1, 2014 that are terminable by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or any of its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less on no more than thirty (30) days’ prior written notice.
notice without liability or financial obligation to the Company or any such Subsidiary; (iiii) Each Material any mortgages, indentures, guarantees, loans or credit agreements, security agreements or promissory notes relating to the borrowing of money, extension of credit or other indebtedness for borrowed money by the Company or any of its Subsidiaries, in each case for more than $50,000 individually or $250,000 in the aggregate, entered into since April 1, 2014; (iv) any Contract entered into since April 1, 2014 pursuant to which the Company or any of its Subsidiaries received or paid in excess of $187,500 during the eight (8) months ended on November 30, 2014; (v) any Contract entered into since April 1, 2014 under which the Company or any of its Subsidiaries is valid and binding on the lessee or sublessee of, or holds or operates any real property or any personal property requiring payments of at least $250,000 during any twelve (12) month period; (vi) any Contract entered into since April 1, 2014 granting most favored customer pricing, exclusive sales, distribution, marketing, or other material exclusive rights, rights of first refusal or rights of first negotiation with respect to the software products of the Company or its Subsidiaries; (vii) any Contract entered into since April 1, as applicable2014 required to be listed under Section 4.12(c)(i) or 4.12(c)(ii) of the Disclosure Schedule; and (viii) any Contract listed on Section 3.10(a) of the Unit Purchase Agreement Disclosure Schedule (collectively, the “Material Contracts”).
(b) Assuming the accuracy and completeness of the representations and warranties in Section 3.10 of the Unit Purchase Agreement, neither the Company nor any Subsidiary of the Company is in material breach of or default under the terms of any Material Contract and, to the Knowledge of the Company’s Knowledge, no other party to any Material Contract is in material breach of or default under the counterparties terms of any Material Contract. Except for the Bankruptcy and Equity Exception, each Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company which is party thereto (and to the Knowledge of the Company, each other party thereto), and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)effect.
Appears in 2 contracts
Sources: Merger Agreement (PCF 1, LLC), Merger Agreement (Neulion, Inc.)
Material Contracts. (a) Section 3.13(aSchedule 3.14(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses lists each following Contract (ix) through (xiii) below to which, as by which any of the date of this AgreementPurchased Assets is bound or affected or (y) to which Seller, the Company or its Subsidiaries applicable Affiliate, is a party and is used with respect to the Business or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Purchased Assets:
(i) any Contract relating to Indebtedness for borrowed money involving aggregate consideration in excess of $1,000,000 or requiring performance by any party more than one (1) year from the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesdate hereof;
(ii) any Contract under which that relates to the Company sale, license or its Subsidiaries is lessee lease of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which of the aggregate annual rental payments do not exceed $500,000Purchased Assets;
(iii) any Contract under which the Company with (A) any Business Customer or its Subsidiaries is lessor of or permits (B) any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Business Supplier;
(iv) any Contract providing for any non-competition, non-solicitation, exclusive dealing, grants of exclusive rights, or prohibiting Seller or Purchaser (Aafter the Closing) from freely engaging in business or otherwise including provisions on joint ventureprice-fixing, profit-“most favored nation”, pricing limitations, required discounts, rights of first refusal, right of first offer, market or customer sharing, partnership, collaboration, co-promotion, commercialization exclusivity or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)market classification;
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingLabor Agreement;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in with an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementIdentified Employee;
(vii) any Contract requiring not executed in the Company ordinary course of business, not consistent with fair market terms, conditions and prices or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company with applicable Laws or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000otherwise not made on arm’s length terms and conditions;
(viii) any Contract under in which the Company or its Subsidiaries has, directly or indirectly, made or Seller has agreed to make any loanpurchase, advance“take or pay,” minimum commitments, volume requirements or assignment similar obligations or supply a minimum quantity of payment to any Person outside of the Ordinary Course of Business or, individually goods or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Personservices;
(ix) any Contract required with an uncapped guaranty, liability or indemnification for any product related to be disclosed on Section 3.19 of the Company Disclosure ScheduleBusiness;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual PropertyGovernment Contract;
(xi) any Contract for that could prohibit or delay the disposition of any portion consummation of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationtransactions contemplated hereby;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes relating to any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)Assumed Liability; and
(xiii) each collective bargaining agreement any Contract between or other Contract with the Company among Seller or any of its Subsidiaries, Affiliates on the one hand, hand and any labor union, labor organization or works council representing employees Affiliate of the Company or its Subsidiaries, Seller on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(ib) Seller has performed in all material respects all obligations required to be performed by it and is not in default under or in breach of nor in receipt of any claim of default or breach under any Material Contract, and no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by Seller or, to the Knowledge of Seller, any other party under any such Material Contract. To the Knowledge of Seller, each other party to each such Contract has performed in all material respects all obligations required to be performed by it under such Contract. Each Material Contract (i) is valid and legal, valid, binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries Seller and, to the Company’s KnowledgeKnowledge of Seller, the counterparties thereto (subject against each other party to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights such Contract and subject to general principles of equity), (ii) will continue to be legal, valid, binding and enforceable on identical terms as of immediately after the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event Closing. Purchaser has occurred that (been supplied with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true correct and complete copies copy of each Material Contract, together with all Material Contracts in effect as of the date hereof (amendments, waivers or other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)changes thereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Maxeon Solar Technologies, Ltd.), Asset Purchase Agreement (Complete Solaria, Inc.)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Except as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a3.16(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies as of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representativesdate hereof, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money 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 the mortgaging, pledging or otherwise placing of a Lien (other than a Permitted Lien) on any material assets or properties portion of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closingtheir assets, (B) contains Contract relating to any exclusivityfactoring, “most favored nation” supplier, trade or similar provisions, obligations or restrictions vendor financing or (C) contains Contract under which it has advanced or loaned any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryits Subsidiaries), in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregateforegoing clauses (A) and (B), in an amount in excess of $200,000 100,000, and in case of the foregoing clause (C), in an amount in excess of $50,000;
(ii) guaranty of any financial obligation made on behalf of any Person other than the Company or made any capital contribution toof its Subsidiaries or other guaranty, in each case, in an amount in excess of $100,000;
(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 $500,000 which was not covered by insurance 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 of its Subsidiaries is lessee or lessor of, or holds or operates any material personal property owned by any other investment inparty, or permits any PersonThird Party to hold or operate any material personal property owned or controlled by the Company or any of its Subsidiaries, in each case for which the annual rental exceeds $150,000;
(vii) agreements (A) relating to any pending or completed material business combination, merger, acquisition or divestiture or similar transaction by the Company or any of its Subsidiaries within the last 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;
(viii) Contract concerning (A) the formation, creation, operation, management or control of any joint venture, partnership or similar agreement or other similar arrangement with a Third Party or (B) the ownership of any equity interest in any entity or business other than the Subsidiaries of the Company, in each case that is material to the business of the Company and its Subsidiaries, taken as a whole;
(ix) Contract pursuant to which (A) the Company or any Contract required of its Subsidiaries are licensed or otherwise permitted by a Third Party to be disclosed on Section 3.19 use any Intellectual Property material to the business of the Company Disclosure Scheduleand 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 $100,000 or less per vendor) or (B) any Third Party is licensed or otherwise permitted to use any material Company Intellectual Property;
(x) any Contract with any Person which (A) pursuant to which 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 (or Parent or including the Surviving Corporation and its Subsidiaries) following the Effective Time to compete in any line of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events business or (BC) under which the Company or its Subsidiaries grants to any Person contains any right of first refusal, right of first negotiationnegotiation or offer, option to purchase, option to license “most favored nation,” exclusivity or similar covenants that would materially restrict future business activity of the Company or any other similar rights with respect to any material Company Product or any material Intellectual Propertyof its Subsidiaries following the Effective Time, excluding customary back-solicitation provisions;
(xi) with respect to material Company Intellectual Property, any (A) Contract for that limits the disposition of any portion of the assets freedom or business 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 the acquisition by assignment, ownership, creation or development of such Company Intellectual Property (excluding employee and independent contractor agreements on the standard form of the Company or any of its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made which are entered into in the Ordinary Course ordinary course of Businessbusiness), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) Contract between any settlement, conciliation or similar Contract (A) requiring monetary payments by Governmental Entity and the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andSubsidiaries;
(xiii) each 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 labor union, labor organization director or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate officer of the Company or its Subsidiaries or any person beneficially owning 5% or more of their respective Affiliates the outstanding Shares, on the other hand (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, except for any Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentBenefit Plan);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments suppliers of the Company and its Subsidiaries paid more than $500,000 per year250,000 for the 12-month period ending September 30, 2023;
(xvi) Contract which restricts the payment of dividends or distributions in respect of any employment Equity Interests of the Company and its Subsidiaries; or
(xvii) other than customer Contracts entered into in the ordinary course, any other Contract not covered by any other subsection hereof, which involves annual consideration in excess of $250,000.
(b) Section 3.16(b) of the Company Disclosure Schedule contains a list, in alphabetical order, of the Company’s top fifteen customers by revenue for the 12-month period ending September 30, 2023.
(c) The Company has delivered or consulting Contract made available to Parent or its Representatives, including by filing as exhibits to Company SEC Documents, as applicable (i) 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 and (ii) information on all contracts with severancethe customers set forth on Section 3.16(b) of the Company Disclosure Schedule (clauses (i) and (ii) collectively, change the “Company Material Contracts”), together with all material amendments, waivers or other changes thereto (but subject, in controleach case, retention to redactions of pricing and other competitively sensitive information to the extent required by Antitrust Law).
(d) Except for those that have terminated or similar arrangementsexpired in accordance with their terms, that will 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) 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 any obligation (absolute a default or contingent) of breach by the Company or any of its Subsidiaries to make under any payment or incur any Liability Company Material Contract and (iii) as a result of the consummation date hereof, to the Knowledge of the transactions contemplated Company, there is no breach or threatened breach by this Agreementthe other parties to any Company Material Contract. Except for those that have terminated or expired in accordance with their terms, termination of employment and except as would not, individually or both; and
(xvii) any other Contract in the performance of which requires either (A) annual payments aggregate, reasonably be expected to or from be material to the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, taken as applicablea whole, to all of the Company’s Knowledge, the counterparties thereto, Company Material Contracts are valid and is in full force and effect and constitute legal, valid and binding obligations of the Company or its Subsidiaries party thereto, and are enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties party thereto in accordance with their respective terms (subject to except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar Laws affecting generally the enforcement of creditors’ rights generally and subject subject, as to enforceability, to general principles of equity), (ii) the Company or its Subsidiaries and, to the Knowledge of the Company’s Knowledge, constitute legal, valid and binding obligations of the counterparties thereto are not other party or parties thereto, enforceable against such party or parties in material breach ofaccordance with their respective terms (except as enforceability may be limited by applicable bankruptcy, or default underinsolvency, any Material Contract fraudulent conveyance, reorganization, moratorium and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach ofother similar Laws affecting creditors’ rights generally and subject, or default under, any Material Contract by the Company or its Subsidiaries oras to enforceability, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies general principles of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightsequity).
Appears in 2 contracts
Sources: Merger Agreement (Patriot Transportation Holding, Inc.), Merger Agreement (Patriot Transportation Holding, Inc.)
Material Contracts. (a) Section 3.13(a) Schedule 4.25 delivered to AMCON by HNWC prior to the execution of the Company Disclosure Schedule contains a listing of this Agreement lists all Contracts described in clauses (i) through (xiii) below material contracts and agreements and use permits to which, as of the date of this Agreementhereof, the Company or its Subsidiaries HNWC is a party or by which they are boundis bound or under which HNWC has or may acquire any rights, which involve or relate to (i) obligations of HNWC for borrowed money or other indebtedness where the amount of such obligations exceeds $50,000 individually, (ii) the lease by HNWC, as lessee or lessor, of real property for rent of more than $25,000 per annum, (iii) the purchase or sale of goods (other than a Company Benefit Plan, and raw material to be purchased by HNWC on terms that are customary and consistent with the past practice of HNWC and in amounts and at prices substantially consistent with past practices of HNWC) or services with an aggregate minimum purchase price of more than $25,000 per annum, (iv) rights to manufacture and/or distribute any product which accounted for more than $25,000 of the consolidated revenues of HNWC during the fiscal year ended December 31, 1999 or under which HNWC received or paid license or other fees in excess of $25,000 during any year, (v) the purchase or sale of assets or properties not expired in the ordinary course of business having a purchase price in excess of $25,000, (vi) the right (whether or have not been terminated and not currently exercisable) to use, license (including any Contracts pursuant to which the Company has with no material outstanding "in-license" or executory obligations "outlicense"), sublicense or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) otherwise exploit any intellectual property right or other proprietary asset of the Company Disclosure ScheduleHNWC or any other Person which, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, when considered together with all amendments thereto):
such other rights, is material to HNWC; (ivii) any Contract relating material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of HNWC (A) to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by compete with any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) to acquire any product or other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent asset or any of its Affiliates after the Closingservices from any other Person, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting to solicit, hire or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of retain any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryas an employee, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xviD) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person; (ix) any employment currency hedging; (x) individual capital expenditures or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries commitments in excess of $300,000 25,000; or (Bxi) aggregate payments any license, lease, permit or other right to or from use any water used by HNWC in its bottling operations. All such contracts and agreements and permits are duly and validly executed by HNWC, the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid other party thereto and binding on the Company or its Subsidiariesall Governmental Entities, as applicable, to the Company’s Knowledge, the counterparties theretocase may be, and is are in full force and effect and enforceable in accordance with its terms against the Company all material respects. HNWC has not violated or its Subsidiaries breached, or committed any default under, any contract or agreement or permit, and, to the Company’s Knowledgeknowledge of HNWC, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium neither HNWC or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company Person has violated or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofbreached, or committed any default under, any contract or agreement or permit, which violation, breach or default (alone or in combination with other violations, breaches or defaults under such contract or agreement or permit or under other contracts or agreements or permits) has had or may reasonably be expected to have a HNWC Material Contract and (iii) no Adverse Effect. No event has occurred that (with or without due which, after notice or lapse the passage of time or both, would constitute a default by HNWC under any contract or agreement or permit or give any Person the right to (A) would result declare a default or exercise any remedy under any contract or agreement or permit, (B) receive or require a rebate, chargeback, penalty or change in a material breach ofdelivery schedule under any contract or agreement or permit, (C) accelerate the maturity or performance of any contract or agreement or permit, or default under(D) cancel, terminate or modify any Material Contract by the Company contract or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory agreement or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatpermit, in each casecase which, do not contain any together with all other events of the types referred to in clauses (A), (B), (C) and (D) of this sentence has had or may reasonably be expected to have a HNWC Material Adverse Effect. All such contracts and agreements and permits will continue, after the Effective Time, to be binding in all material executory or continuing terms, conditions, obligations or rights)respects in accordance with their respective terms until their respective expiration dates.
Appears in 2 contracts
Sources: Merger Agreement (Amcon Distributing Co), Merger Agreement (Hawaiian Natural Water Co Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Except as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on in Section 3.13(a4.22(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies as of the Contracts listed on Section 3.13(a) of date hereof, neither the Company Disclosure Schedule have previously been made available nor any of its Subsidiaries is party to Parent or its agents or representatives, together with all amendments thereto):bound by any Contract:
(i) that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the 1933 Act;
(ii) that is an employment, independent contractor, consulting, severance or similar agreement with any Contract relating individual (or such individual’s alter ego entity) under which the Company or any of its Subsidiaries is or could become obligated to Indebtedness for borrowed money provide a base salary or annual base consulting fees in excess of $750,000;
(iii) that (or, together with additional related Contracts with the same Person or its Affiliates) (A) requires the payment or receipt of amounts by the Company or any of its Subsidiaries of more than $250,000,000 in the calendar year ended December 31, 2022 or reasonably expected in any subsequent calendar year, in each case other than Oil and Gas Leases and spot sales of Hydrocarbons on market terms in the ordinary course, or (B) is material to the Company and its Subsidiaries, taken as a whole, and, in the case of clause (B), cannot be cancelled at any time by the Company or its applicable Subsidiary without penalty or further payment on no more than ninety (90) days’ notice;
(iv) that is a material partnership, strategic alliance or joint venture agreement, other than customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or its Subsidiaries or to the placing any of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(iiv) any that provides for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets (including properties) or capital stock (other than acquisitions or dispositions of Hydrocarbons or inventory and raw materials and supplies in the ordinary course of business) (A) that is pending for aggregate consideration under such Contract under in excess of $50,000,000 or (B) pursuant to which the Company or its Subsidiaries is lessee has continuing material obligations including “earn-out” or other contingent payment obligations;
(vi) providing for material indemnification by the Company or any its Subsidiaries, other than indemnification obligations in (A) customary joint operating agreements in the ordinary course of business, and (B) commercial agreements in the ordinary course of business;
(vii) that contains any “most favored nation” or holds most favored customer provision with respect to any material obligation or operatesany material preferential right or material rights of first or last offer, negotiation or refusal, in each case, any tangible property (other than real property)such provisions in favor of the Company or any of its Subsidiaries or pursuant to customary royalty pricing provisions in Oil and Gas Leases or customary preferential rights in joint operating agreements, owned by unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000of its Subsidiaries;
(iiiviii) any Contract under other than the Convertible Notes, that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries is lessor could be required to purchase or sell, as applicable, any assets or any equity interests of or permits any third party to hold or operatePerson (excluding, in each caserespect of the foregoing, any tangible property (other than real property), owned or controlled by agreements between the Company or and its wholly-owned Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(vix) any Contract that (A) limits materially restricts or purports to limit, in any material respect, materially restrict the freedom ability of the Company or any of its Subsidiaries Affiliates to engage compete with, or compete to provide services in any line of business or with any Person or in any geographic area or market segment, in each case that would so limit be applicable to the Surviving Corporation or purport to limit, in any material respect, the operations of its Subsidiaries or Parent or any of its Affiliates after Subsidiaries following the ClosingEffective Time;
(x) that is a Collective Bargaining Agreement;
(xi) containing any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial instrument, contract or arrangement, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever that is material to the Company and its Subsidiaries, taken as a whole;
(Bxii) contains (A) with (1) any exclusivitybeneficial owner (as defined in Rule 13d-3 under the 1934 Act) of 5% or more of any class of securities of the Company or any of its Subsidiaries who has filed a Schedule 13D or Schedule 13G under the 1934 Act (or, “most favored nation” or similar provisionsto the Company’s Knowledge, obligations or restrictions is required to make such a filing) or (C2) contains any other provisions restricting director or purporting to restrict the ability executive officer of the Company or its Subsidiaries to sell(other than any employment agreements, manufactureEmployee Plans or other Contracts providing exclusively for compensation, developbenefits, commercialize, test equity awards or research products, directly or indirectly through third partiescustomary indemnification), or (B) that is required to solicit be disclosed under Item 404 of Regulation S-K promulgated under the 1933 Act;
(xiii) that (A) evidences Indebtedness for borrowed money of the Company or any potential employee Subsidiary of the Company (committed or customeroutstanding) in excess of $100,000,000, other than agreements solely between or among the Company and its Subsidiaries, (B) evidences a capitalized lease obligation in each case, excess of $100,000,000 that is required to be classified as a balance sheet liability of the Company in accordance with GAAP or (C) restricts the payment of dividends or other distribution of assets by any material respect of the Company or that would so limit or purports to limit, in any material respect, Parent its Subsidiaries;
(xiv) requiring future capital expenditures by the Company or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made 250,000,000 other than any capital contribution to, or other investment in, any Person;
(ixexpenditure contemplated by Section 6.01(e) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (Bxv) under which the Company or any of its Subsidiaries (A) grants to any Person any right of first refusalright, right of first negotiation, option to purchase, option to license or any other similar rights covenant not to sue with respect to any material Company Product Intellectual Property (other than non-exclusive licenses granted to customers or vendors in the ordinary course of business) or (B) obtains any right, license or covenant not to be sued with respect to any material Intellectual Property;
(xi) Property owned by any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person third party (other than acquisitions or dispositions made in the Ordinary Course of Business), or under licenses for commercial off-the-shelf software which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, are generally available on non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closingdiscriminatory pricing terms); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) that is the subject of any employment or consulting Contract with severance, change in control, retention or similar arrangements, Action individually that will is reasonably expected to result in any obligation payments by the Company in excess of $25,000,000 and under which there are outstanding obligations (absolute or contingentincluding settlement agreements) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothSubsidiaries; andor
(xvii) any other Contract the performance of which requires either binding commitment (Aorally or in writing) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or any of its Subsidiaries or, to enter into any of the Company’s Knowledge, the counterparties thereto. foregoing.
(b) The Company has made available to Parent a true and complete copies copy of all Material Contracts each Contract listed or required to be listed in Section 4.22(a) of the Company Disclosure Schedule (such Contracts, together with any Contract to which the Company or any of its Subsidiaries becomes a party or by which it becomes bound after the date hereof that would be required to be listed in Section 4.22(a) of the Company Disclosure Schedule if in effect as of the date hereof hereof, the “Material Contracts” and each, a “Material Contract”). Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (other than purchase ordersi) each of the Material Contracts is valid, invoicesbinding obligation of the Company, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between Knowledge of the parties to a particular Contract or group of Contracts Company, each other party thereto, and thatin full force and effect, in each casecase subject to bankruptcy, do not contain insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (whether considered in a proceeding in equity or at law), and (ii) since the Applicable Date, neither the Company nor any material executory of its Subsidiaries, nor to the Knowledge of the Company any other party to a Material Contract, has breached or continuing termsviolated any provision of, conditionsor taken or failed to take any act which, obligations with or rights)without notice, lapse of time, or both, would constitute a breach or default under the provisions of such Material Contract, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Material Contract, except for breaches, violations or defaults that have been cured.
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Pioneer Natural Resources Co)
Material Contracts. (a) Section 3.13(aSchedule 4.18(a) of the Company Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date Execution Date, of this Agreement, the following to which the Company or its any of the Company Subsidiaries is a party or by which they any of their respective assets are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto)::
(i) any Contract relating to Indebtedness for borrowed money each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesExchange Act);
(ii) any Contract under each contract that provides for the acquisition, disposition, license, use, distribution, or outsourcing of assets, services, rights, or properties with respect to which the Company reasonably expects that the Company or its any of the Company Subsidiaries is lessee will make annual payments in excess of $3,000,000 or holds or operates, aggregate payments in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed excess of $500,00030,000,000;
(iii) any Contract under which each contract relating to Indebtedness for Borrowed Money or the Company or its Subsidiaries is lessor deferred purchase price of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its any of the Company Subsidiaries (whether incurred, assumed, guaranteed, or secured by any asset), other than agreements solely between or among the Company or any of the Company Subsidiaries, except or those involving an amount of Indebtedness for any lease Borrowed Money or agreement under which deferred purchase price, individually or in the aggregate annual rental payments do not exceed aggregate, of no more than $200,00030,000,000;
(iv) any acquisition or divestiture contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, for which the Company or any of the Company Subsidiaries may be liable;
(v) each contract for lease of personal property or real property (other than the Company Real Property Leases and the Company Rights-of-Way) involving payments in excess of $3,000,000 in any calendar year or aggregate payments in excess of $30,000,000 that are not terminable without penalty or other liability to the Company or any of the Company Subsidiaries (other than any ongoing obligation pursuant to such contract that is not caused by any such termination) within 60 days;
(vi) each contract that is a non-competition contract or other contract that (A) joint venturepurports to limit in any material respect either the type of business in which the Company or any of the Company Subsidiaries may engage or the manner or locations in which any of them may so engage in any business, profit-sharing, partnership, collaboration, co-promotion, commercialization (B) could require the disposition of any material assets or research line of business of the Company or development Contractany of the Company Subsidiaries, or similar Contract(C) prohibits or limits the rights of the Company or any of the Company Subsidiaries to make, in each case, which requiressell, or would reasonably be expected to require distribute any products or services, or use, transfer, or distribute, or enforce any of their rights with respect to, any of their material assets;
(vii) each Hydrocarbon purchase and sale, gathering, treating, transportation, processing, compression or similar contracts entered into by the Company or any of the Company Subsidiaries that (A) (1) if a fee-based on any occurrencecontract, development, activity or event contemplated by such Contract), provides for aggregate payments to or from the Company or its Subsidiaries the Company Subsidiary, as applicable, during any fiscal year in excess of $1,000,000 over 7,500,000, or (2) if a percentage of proceeds contract, is reasonably anticipated to result in a share of proceeds retained by the life Company or the Company Subsidiary, as applicable, for its own account during any such fiscal year in excess of the Contract $7,500,000, or (B) (y) involves the gathering, treating, transportation, processing, compression, purchase, sale, or storage of more than 15 MMcf of gaseous Hydrocarbons per day, or 7,500 barrels of liquid Hydrocarbons per day, or (2) provides for an acreage dedication or similar commitment;
(viii) each contract for any Derivative Transaction;
(ix) each collective bargaining agreement or other Contract labor-related contract with respect a labor union, works council, or other labor organization;
(x) any employment contract that (i) requires annualized base salary payments in excess of $45,000, (ii) provides for change in control or transaction bonuses, or (iii) provides for severance in excess of one month of base salary or notice of termination in excess of thirty (30) days;
(xi) each material partnership, joint venture, or limited liability company agreement;
(xii) each agreement under which the Company or any of the Company Subsidiaries has advanced or loaned any amount of money to material any of its officers, directors, employees, or consultants, in each case with a principal amount in excess of $45,000;
(xiii) any contract not entered into in the ordinary course of business that is a water rights agreement or disposal agreement or relates to the sourcing, transportation, or disposal of water (including brine water and flowback water) that (A) provides for an acreage dedication in excess of 3,000 gross surface acres, or (B) that could reasonably be expected to result in the receipt or payment by the Company Licensed Intellectual Property or any of the Company Subsidiaries of an amount in excess of $30,000,000 over the remaining term of such agreement;
(xiv) any contract that provides for a “take-or-pay” clause or any similar prepayment obligation, acreage dedication, minimum volume commitments, area of mutual interest or capacity reservation fees;
(xv) any contract with any Governmental Entity (other than any Non-Scheduled Contractsthe Company Permits);
(vxvi) any Contract contract that (A) limits obligates the Company or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage make any future capital commitment, loan, or compete expenditure in an amount in excess of $30,000,000;
(xvii) each contract for any line of business or with any Person or in any area or Company Related Party Transaction;
(xviii) each agreement that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisionsmost favored customer provision, obligations call or restrictions put option, preferential right, or (C) contains rights of first or last offer, negotiation or refusal, other than those contained in any other provisions restricting or purporting to restrict agreement in which such provision is solely for the ability benefit of the Company or its Subsidiaries any of the Company Subsidiaries, to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent which the Company or any of its Affiliates after the ClosingCompany Subsidiaries is subject, and is material to the business of the Company and the Company Subsidiaries, taken as a whole;
(vixix) any Contract requiring any future capital commitment each contract that constitutes a pipeline interconnect or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the facility operating agreement;
(viixx) any Contract requiring contract whereby the Company or its Company Subsidiaries lease capacity (whether firm or interruptible) on a third party pipeline or lease capacity on the Company Midstream Facilities to guarantee the Liabilities of a third-party shipper; and
(xxi) any Person (other than contract that requires or entitles the Company or a Subsidiaryany of the Company Subsidiaries to make or receive payments of $3,000,000 or more annually; provided, however, that the Company shall have no obligation to list any contract on Schedule 4.18(a) or pursuant of the Company Disclosure Letter to which any Person Company JV is a party, but all such contracts shall otherwise constitute Company Contracts for purposes of Section 4.18(b).
(other than b) Collectively, the contracts set forth in Section 4.18(a) (excluding, for the avoidance of doubt, any Company Real Property Lease or Company Right-of-Way) are herein referred to as the “Company Contracts.” A complete and correct copy of each of the Company or a Subsidiary) Contracts has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, been made or agreed available to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orContributor. Except as has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding, and enforceable in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed accordance with its terms on Section 3.19 the Company and each of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicablea party thereto and, to the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect effect, subject, as to enforceability, to Creditors’ Rights. Except as has not had and enforceable would not have, individually or in accordance with its terms against the aggregate, a Company Material Adverse Effect, (i) neither the Company nor any of the Company Subsidiaries is in breach or its Subsidiaries anddefault under any Company Contract nor, to the Company’s Knowledge, the counterparties thereto (subject is any other party to applicable bankruptcyany such Company Contract in breach or default thereunder, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries the Company Subsidiaries, or, to the Company’s Knowledge, the counterparties any other party thereto. The There are no disputes pending or, to the Company’s Knowledge, threatened with respect to any Company has made available to Parent true Contract and complete copies of all Material Contracts in effect as neither the Company nor any of the date hereof Company Subsidiaries has received any written notice of the intention of any other party to any Company Contract to terminate for default, convenience, or otherwise any Company Contract, nor to the Company’s Knowledge, is any such party threatening to do so, in each case except as has not had or would not have, individually or in the aggregate, a Company Material Adverse Effect.
(c) No Person, other than purchase ordersArtemis Midstream, invoiceshas any rights under the Existing Stockholders Agreement, and similar confirmatory or administrative documents that are ancillary to no Person, other than Artemis Midstream and the main contractual relationship between individuals set forth on Schedule 4.18(c) of the parties to a particular Contract or group of Contracts and thatCompany Disclosure Letter, has any rights under the Existing Registration Rights Agreement, in each case, do not contain any material executory or continuing termsthat are exercisable following the date hereof, conditions, except in the case of the Existing Registration Rights Agreement the obligations or rights)specified in Section 3.5 and Article IV thereof.
Appears in 2 contracts
Sources: Contribution Agreement (Blackstone Holdings III L.P.), Contribution Agreement (Altus Midstream Co)
Material Contracts. (a) Section 3.13(a3.11(a) of the Company Seller Disclosure Schedule contains sets forth a listing complete and accurate list of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, that fall within the following categories and that are not expired or have not been terminated and not including any existing as of the date hereof (the Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth listed on Section 3.13(a3.11(a) of the Company Seller Disclosure Schedule, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesall Real Property Leases;
(ii) other than purchase orders issued in the Ordinary Course of Business, any Contract under which for the Company purchase of services, equipment or its Subsidiaries is lessee other assets providing for either (A) annual payments by the Business of $300,000 or holds more; or operates(B) give rise to anticipated receipts of more than $300,000 in any calendar year, in each case, case that cannot be terminated on not more than 90 days' notice without payment by the Business of any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000material penalty;
(iii) any Contract for capital expenditures by the Company or any of its Subsidiaries in excess of $300,000 in the aggregate remaining due as of the date hereof;
(iv) any Contract that is a lease under which the Company or its Subsidiaries is lessor of of, or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiariesand used in the Business, except for any lease or agreement Contract under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)300,000;
(v) any Contract that (A) limits partnership, joint venture, minority investment or purports to limit, in any material respect, the freedom of the Company joint development agreement or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or other similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingContract;
(vi) any Contract requiring relating to the acquisition or disposition of any future capital commitment business (whether by merger, sale of stock, sale of assets or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries otherwise), in an amount in excess of each case, (A) $300,000 annually since January 1, 2021 or (Bb) $1,000,000 over the life of the agreementpursuant to which a Company has an earnout or deferred or contingent purchase price obligation or indemnification obligation;
(vii) any Contract requiring (x) pursuant to which the Company or any of its Subsidiaries is liable for indebtedness for borrowed money or any guarantee thereof, or (y) pursuant to guarantee which the Liabilities Company or any of its Subsidiaries has granted any Person Lien (other than a Permitted Lien) on the Company assets or a Subsidiary) properties of the Business or pursuant to which any Person (other than material assets or properties of the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Business;
(viii) any Contract under the primary purpose of which is to bind the Company Business to indemnify any other Person, with such obligation continuing after the date hereof, excluding for the sake of clarity, any sales, supply, distribution, service or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of other similar agreement entered into in the Ordinary Course of Business orthat includes an indemnity with any customer, individually supplier, distributor or in service provider of the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonBusiness;
(ix) any Contract required granting to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which a right of first refusal or right of first offer on the Company or its Subsidiaries (or Parent or sale of any material part of any of its Affiliates after the Closing) is assets or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events properties of the Business or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, an option to purchase, option to license acquire, sell or any other similar rights with respect to dispose of any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make (other than inventory in the ordinary course of business);
(x) any payment Contract containing covenants expressly limiting in any material respect the freedom or incur any Liability as a result ability of the consummation Business to conduct any line of business or compete with any Person in a product line or line of business or operate in any jurisdiction or solicit or hire employees, excluding reasonable limitations on use in connection with confidentiality, research or consulting agreements;
(xi) other than purchase orders issued in the Ordinary Course of Business, any sales, distribution or other similar Contract (whether with a dealer or otherwise) providing for the sale by the Business of materials, supplies, goods, services, equipment or other assets that provides for annual payments to the Business of $100,000 or more that cannot be terminated on not more than 90 days’ notice without payment by the Business of any material penalty;
(xii) any Contract relating to any swap, forward, futures, warrant, option or other derivative transaction;
(xiii) any Contract that contains material exclusivity requirements or similar provision binding on the Business;
(xiv) any Contract containing “most favored nation” provisions or other preferential pricing terms;
(xv) any Contract with a Governmental Authority;
(xvi) any Contract pursuant to which the Company or any Subsidiary has agreed to settle or compromise any pending or threatened Proceeding and under which any of the transactions contemplated by this Agreement, termination of employment or both; andforegoing has continuing obligations (other than confidentiality obligations with respect thereto);
(xvii) any Contract providing for the employment or engagement by the Company or any of its Subsidiaries of any Person on a full-time, part-time, independent contractor, temporary or other Contract the performance of which requires either basis, other than Contracts (A) annual payments to or from terminable by the Company or any of its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty for any reason upon less than thirty (30) days’ prior written noticenotice without incurring any liability or (B) providing for annual base compensation for such individual that is less than $100,000;
(xviii) any collective bargaining agreement or other Contract with any labor union or similar labor organization;
(xix) any Contract pursuant to which the Company or any of its Subsidiaries has agreed to loan any Person any amount or otherwise make any investment in any other Person, other than employee loans or advances in the Ordinary Course of Business;
(xx) any Contract pursuant to which the Company or any of its Subsidiaries grants or is granted a license or right to use, or covenant not to be sued under, any Intellectual Property Rights, other than (A) ”shrink wrap,” “off-the shelf” or other non-exclusive licenses for generally commercially available Software, including “software as a service” or similar services that are licensed to or procured by the Company or any of Subsidiaries for an annual fee of less than $300,000 (B) non-exclusive licenses granted to customers of the Business in the Ordinary Course of Business and (C) non-exclusive licenses granted by or to employees or contractors in the Ordinary Course of Business;
(xxi) any Contract relating to the acquisition, development, sale or disposition of any material Company Intellectual Property Rights, other than assignments of Intellectual Property Rights to the Company or any of its Subsidiaries from such entities’ employees or contractors in the Ordinary Course of Business;
(xxii) any Contracts with a Related Party (a “Related Party Transaction”), other than (i) the Award Agreements, (ii) employment arrangements with employees, officers and directors of the Company or any of its Subsidiaries, which arrangements are disclosed pursuant to Section 3.11(b)(xvii), (iii) the LLC Agreement and (iv) Contracts with Representatives who are not directors, managers, officers or employees of the Company or its Subsidiaries; or
(xxiii) (i) any Contract (other than purchase orders entered into in the Ordinary Course of Business) with a Material Customer that provides for annual payments to the Business of $500,000 or more or (ii) any Contract with a Material Supplier (other than purchase orders) that provides for annual payments by the Business of $500,000 or more.
(ib) Each Material Contract is a valid and binding on agreement of the Company or any of its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, Subsidiaries and is in full force and effect effect, and enforceable in accordance with its terms against none of the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement any of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge, any other party is in default or breach under the counterparties theretoterms of any such Material Contract, except for any such defaults or breaches that would not, and would not reasonably be expected to, individually or in the aggregate, be material to the Business, taken as a whole. The Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has made available received any written notice on or prior to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersof any intention to terminate, invoicesrepudiate or disclaim, or materially reduce the amount of purchases or sales under any Material Contract from any party thereto, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between Company’s knowledge, no such action has been threatened and neither the parties to a particular Contract or group of Contracts and that, in each case, do not contain Company nor any material executory Subsidiary has delivered or continuing termsthreatened any such action. Seller has provided to Buyer a true, conditionscomplete and correct copy of each Material Contract (including any amendments, obligations modifications or rightssupplements thereto).
Appears in 2 contracts
Sources: Merger Agreement (MasterBrand, Inc.), Merger Agreement (MasterBrand, Inc.)
Material Contracts. (a) Section 3.13(a) of the The Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is neither a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):nor bound by:
(i) any Contract relating to Indebtedness lease (whether of real or personal property) providing for borrowed money annual rentals of $25,000 or more that cannot be terminated on not more than 60 days’ notice without payment by the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariespenalty;
(ii) any Contract under which the Company material partnership, joint venture or its Subsidiaries is lessee of other similar agreement or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000arrangement;
(iii) any Contract under which agreement relating to indebtedness for borrowed money or the Company or its Subsidiaries is lessor deferred purchase price of or permits any third party to hold or operate, property (in each either case, whether incurred, assumed, guaranteed or secured by any tangible property (other than real propertyasset), owned or controlled by the Company or its Subsidiaries, except for any lease or such agreement under which the with an aggregate annual rental payments do outstanding principal amount not exceed exceeding $200,00050,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract agreement that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, area; or
(Bv) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting agreement, commitment, arrangement or purporting plan not made in the ordinary course of business that is material to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;Company.
(vib) any Contract requiring any future capital Each agreement, contract, plan, lease, arrangement or commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the ClosingSection 3.11(a) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to agreement of the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, and enforceable in accordance with its terms against none of the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge of Sellers, any other party thereto is in default or breach in any respect under the counterparties theretoterms of any such agreement, contract, plan, lease, arrangement or commitment, except for any such defaults or breaches which would not have a Company Material Adverse Effect. The [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. Schedules (or similar attachments) referred to and listed herein shall have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule (or similar attachment) will be furnished to the Commission upon request.
(c) Each Assigned Nutley License and Assigned Basel License is a valid and binding agreement of Roche Nutley or Roche Basel, as the case may be, and is in full force and effect, and neither such Seller nor, to the knowledge of Sellers, any other party thereto is in default or breach in any respect under the terms of any such Assigned Nutley License or Assigned Basel License, except for any such defaults or breaches which would not have a Company Material Adverse Effect. Other than as listed on Section 3.11(c) of the Sellers Disclosure Schedule, to the knowledge of Sellers, none of Roche Nutley, Roche Basel or the Company has made available to Parent true and complete copies of all Material Contracts in effect as received any written notice under any of the date hereof (other than purchase orders, invoices, Assigned Nutley Licenses and similar confirmatory Assigned Basel Licenses asserting that there has been or administrative documents that are ancillary there is likely to the main contractual relationship between the parties to occur a particular Contract breach or group of Contracts default under such Assigned Nutley Licenses and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Assigned Basel Licenses.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Arrowhead Research Corp)
Material Contracts. (a) Section 3.13(aSchedule 4.13(a) sets forth all of the Company Disclosure Schedule contains following Contracts (each a listing of all Contracts described in clauses (i“Material Contract” and, collectively, the “Material Contracts”) through (xiii) below to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, any of them is bound (excluding any Contract covered by Section 4.11(b)(ii)) and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):which:
(i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities Act);
(ii) would be treated as a sale-leaseback arrangement under GAAP;
(iii) involves the lease of personal property by the Company or any Contract relating of its Subsidiaries that provides for rent payable by the Company or any of its Subsidiaries in any twelve (12) month period in excess of $2,000,000 (and which cannot be terminated by the Company or any of its Subsidiaries without penalty on 180 days’ notice);
(iv) is with a Material Customer or a Material Supplier (or an applicable Affiliate or Subsidiary thereof) (excluding Contracts that are routine purchase orders and related releases occurring in the Ordinary Course of Business);
(v) relates to Indebtedness indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lienindebtedness between the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries) on under which the principal amount outstanding thereunder payable by the Company or any of its Subsidiaries is in excess of $1,000,000;
(vi) contains any material assets or properties outstanding obligation of the Company or any of its Subsidiaries with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation or material indemnification obligation;
(vii) is a joint venture, partnership or similar agreement;
(viii) provides for any change of control bonuses and/or severance payments, in each case, that would become payable solely as a result of the transactions contemplated herein to any current or former “executive officers” (as defined under item 402(a)(3) of Regulation S-K under Rule 3b-7 promulgated under the Exchange Act) of the Company or any of its Subsidiaries;
(iiix) relates to the services of any Contract under which employee, director or officer of the Company or its Subsidiaries is lessee any Subsidiary who has a title of “Senior Vice President” or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000higher;
(iiix) any Contract under which involves unpaid (as of the Company or its Subsidiaries is lessor of or permits any third party date hereof) commitments to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries make capital expenditures in excess of $1,000,000 over individually or in the life aggregate, by or on behalf of the Contract Company or any of its Subsidiaries other than (i) Contracts between the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries or (Bii) other Contract with respect commitments reflected in the capital expenditure budget of the Company and its Subsidiaries for corporate, maintenance and strategic capital expenditures through December 31, 2019, and provided to material Company Licensed Intellectual Property Parent prior to the date hereof (other than any Non-Scheduled Contractsthe “CapEx Budget”);
(vxi) any Contract that (A) limits or purports to limit, restricts in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict respect the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test compete in any business or research products, directly geographic area or indirectly through third parties, hire any individual or to solicit group of individuals;
(xii) is with (A) the U.S. Federal Government or any potential employee government in a nation-state of the European Union or customer, (B) any other Governmental Body and in each case, in any material respect or case that would so limit or purports involves payments to limit, in any material respect, Parent the Company or any of its Affiliates after the ClosingSubsidiaries in any twelve (12) month period in excess of $5,000,000;
(vixiii) is a license of any Contract requiring Intellectual Property to or from the Company (other than with respect to (i) IT Contracts, (ii) licenses of Intellectual Property between the Company and any future capital commitment or capital expenditure of its wholly-owned Subsidiaries, and (or series of capital expendituresiii) commercially available software products under standard end-user object code license agreements) and involves payments by the Company or any of its Subsidiaries in an amount any twelve (12) month period in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement1,000,000;
(viixiv) any relates to the pending acquisition or sale of a business; or
(xv) constitutes a Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any for borrowed money under which a Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment inCompany, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity customers in the Ordinary Course of Business) is advanced or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with loaned an employee or individual consultant or independent contractor, involving aggregate payments of more than amount exceeding $500,000 per year;1,000,000; or
(xvi) contains any employment or consulting Contract with severance, change in control, retention or similar arrangements, provision that will result in any obligation (absolute or contingent) requires the purchase of all of the Company Company’s (or any of its Subsidiaries Subsidiaries’) requirements for a given product or service from a given third party, which product or service is material to make any payment or incur any Liability the Company and its Subsidiaries, taken as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andwhole;
(xviib) any other Contract the performance The Company has made available to Parent a correct and complete copy of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andeach Material Contract, in each case, that is including all amendments and supplements thereto. Except as would not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
have a Material Adverse Effect: (i) Each assuming the due authorization, execution and delivery thereof by the other party or parties thereto, each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and is a legal, valid and binding agreement that is enforceable against the Company and/or a Subsidiary of the Company (as applicable) and, to the Knowledge of the Company, the other party or parties thereto in accordance with its terms against the Company or its Subsidiaries andterms, subject to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights Bankruptcy and subject to general principles of equity), Equity Exception; (ii) the Company or and/or one of its Subsidiaries (as applicable) and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto are not in material breach of, or default under, any compliance with all terms of each Material Contract Contract; and (iii) no event none of the Company nor any of the Company’s Subsidiaries has occurred that received prior to the date hereof written notice of (with x) default or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract noncompliance by the Company or its Subsidiaries orunder any Material Contract, to (y) early termination of any Material Contract or (z) the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as intent of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary counterparty to alter the main contractual relationship between the parties to a particular Contract or group provisions of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Novelis Inc.), Merger Agreement (Aleris Corp)
Material Contracts. (a) Section 3.13(a) of 3.12.1 Except for contracts set forth on the “Exhibit Index” included in the Company’s Form 10-K for the year ended December 31, 2011 or the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSEC Filings subsequently filed, as of the date of this Agreement, neither the Company nor any Company Subsidiary, nor any of their respective assets, properties, businesses or operations is a party to, or bound or affected by, or receives benefits under:
(a) any Contract which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(b) any Contract relating to the borrowing of money by the Company or its Subsidiaries is a party any Company Subsidiary or the guarantee by which they are bound, the Company or any Company Subsidiary of any such obligation (other than a Company Benefit PlanContracts evidencing deposit liabilities, purchases of federal funds, fully-secured repurchase agreements, and that are not expired FHLB advances of depository institution Subsidiaries, trade payables and Contracts relating to borrowings or have not been terminated and not including guarantees made in the ordinary course of business) in excess of $1,000,000;
(c) any Contracts pursuant to Contract which prohibits or restricts the Company has or any Company Subsidiary from (i) engaging in any business activities in any geographic area, line of business or otherwise in competition with no material outstanding any other person, (ii) soliciting or executory obligations accepting business from any person or Liabilities (such iii) soliciting any person for employment or hire (excluding Contracts as are required entered into in the ordinary course with respect to be set forth on Section 3.13(a) of temporary employment, consulting arrangements and similar arrangements and it being understood that the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on will be permitted to update Section 3.13(a3.12.1(c) of the Company Disclosure Schedule within twenty (20) Business Days following the date hereof so as to provide a true and correct list of all of the Contracts containing restrictions on the soliciting of any person for employment or hire, and such updates shall be deemed to have previously been made available to Parent or its agents or representatives, together with all amendments thereto):modified Schedule 3.12.1(c) as of the date of this Agreement);
(id) any Contract between or among the Company or any Company Subsidiary;
(e) any Contract relating to Indebtedness for borrowed money the purchase or sale of the Company any goods or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled services by the Company or its Subsidiaries, except for a Company Subsidiary (other than Contracts entered into in the ordinary course of business and either (i) involving payments under any lease or agreement under which the aggregate annual rental payments do individual Contract not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $300,000 per year or $1,000,000 over the expected life of the Contract Contract, or (Bii) other Contract with respect to material involving Loans, borrowings or guarantees originated or purchased by the Company Licensed Intellectual Property (other than or any Non-Scheduled ContractsCompany Subsidiary in the ordinary course of business);
(vf) any Contract that (A) limits or purports to limit, in any material respect, the freedom of which obligates the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limitCompany Subsidiary (or, in any material respect, following the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability consummation of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respectMerger, Parent or any Parent Subsidiaries) to conduct business with any third party on an exclusive or preferential basis (other than Contracts entered into in the ordinary course of its Affiliates after the Closing;
business that (vii) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) can be terminated by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually relevant Company Subsidiary immediately without penalty or other obligation to make payment, or (Bii) $1,000,000 over with respect to which the life of the agreement;
(vii) any Contract requiring maximum reasonably expected termination, break or similar fee payable by the Company or its Subsidiaries to guarantee relevant Company Subsidiary (or the Liabilities of any Person (other than the Company Parent or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Parent Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which after giving effect to the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orMerger), individually or in the aggregate, in an amount in excess of is less than $200,000 or made any capital contribution to, or other investment in, any Person100,000);
(ixg) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license offer or any other similar rights right with respect to any material Company Product assets, rights or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business properties of the Company or its Subsidiaries or for any Company Subsidiary;
(h) any Contract which limits the acquisition payment of dividends by the Company or its Subsidiaries of the assets or business of any other Person Company Subsidiary;
(other than acquisitions or dispositions made in the Ordinary Course of Business), or under i) any Contract pursuant to which the Company or its Subsidiaries any Company Subsidiary has agreed with any continuing obligation third parties to become a member of, manage or control a joint venture, partnership, limited liability company or other similar entity;
(j) any Contract pursuant to which the Company or any Company Subsidiary has agreed with respect any third party to a change of control transaction such as an acquisition, divestiture or merger and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out,” contingent purchase price or other contingent or deferred payment obligationobligations) that are still in effect other than customary obligations to indemnify directors and officers;
(xiik) except for standard end-user license agreements to off the shelf software having a value under $10,000, for any settlementContract wherein the Company or any Company Subsidiary is the recipient of a license, conciliation sublicense (of any tier), covenant not to ▇▇▇ or similar Contract assert, or immunity from suit under any Intellectual Property rights of any other person;
(Al) requiring monetary payments except for non-exclusive licenses to the Company’s trademarks granted by the Company or its Subsidiaries after a Company Subsidiary to a vendor for the date provision of this Agreement, (B) with a Governmental Authority products or (C) that imposes any material, non-monetary obligations on services to the Company or its Subsidiaries (or Parent or a Company Subsidiary in the ordinary course of business, any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with wherein the Company or its Subsidiariesany Company Subsidiary expressly grants a license, sublicense (of any tier), covenant not to ▇▇▇ or assert, immunity from suit or similar rights under any material Company IP;
(m) except for standard employment Contracts, any Contract wherein a person assigns to the Company or a person is obligated to assign to the Company, any title, in whole or in part, solely or jointly, beneficially or actually, with respect to any Intellectual Property, or any person has an option or other right concerning any of the foregoing;
(n) any Contract that provides for a termination, break, or similar fee in excess of $100,000; or
(o) except transactions made in accordance with Regulation O and agreements entered into in the ordinary course of business for compensation or indemnity, any Contract between the Company or any Company Subsidiary, on the one hand, and (1) any labor union, labor organization officer or works council representing employees director of the Company Company, or its Subsidiaries(2) to the knowledge of the Company, any (x) record or beneficial owner of five percent (5%) or more of the voting securities of the Company, (y) affiliate or family member of any such officer, director or record or beneficial owner or (z) any other affiliate of the, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member except those of an Affiliate a type available to employees of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) generally. Each contract of the Company or any of its Subsidiaries type described in this Section 3.12.1 is referred to make any payment or incur any Liability herein as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and“Company Material Contract.”
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Section 3.12.2 Each Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and legally valid, binding and enforceable in accordance with its terms against in all material respects on the Company or its Subsidiaries and each Company Subsidiary party thereto and, to the Company’s Knowledgeknowledge, the counterparties thereto (subject to applicable each other party thereto, except as enforceability may be limited by bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other Laws similar laws relating to or affecting generally the enforcement of creditors’ rights and subject to remedies of creditors and by general principles of equity)equity regardless of whether considered in a proceeding in equity or at Law. Except as has not had, (ii) individually or in the aggregate, a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all obligations required to be performed by it under each Company Material Contract and Company Lease. To the Company’s knowledge, and except as has not had, individually or in the aggregate, a Company Material Adverse Effect, each other party to each Company Material Contract and Company Lease has performed all obligations required to be performed by it under such Company Material Contract and Company Lease. None of the Company or its Subsidiaries and, to any Company Subsidiary has received written notice of any violation or default under (or any condition which with the Company’s Knowledge, passage of time or the counterparties thereto are not in material breach of, giving of notice would cause such a violation of or default under, ) any Company Material Contract and (iii) no event has occurred or Company Lease, except for violations or defaults that (with have not had, individually or without due notice or lapse of time or both) would result in the aggregate, a material breach of, or default under, any Company Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Citizens Republic Bancorp, Inc.), Merger Agreement (Firstmerit Corp /Oh/)
Material Contracts. (a) Section 3.13(a) Other than Contracts existing as of the Closing between the Company or a Subsidiary of the Company, on one hand, and Investor or an Affiliate of Investor, on the other hand, Section 4.18 of the Disclosure Schedule contains sets forth a listing true, correct, and complete list of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party party, or by which they are the Company or any of its Subsidiaries is bound, other than a Company Benefit Plan, and that are not expired material to the business, operations, financial condition, or have not been terminated and not including any Contracts pursuant to which results of operations of the Company has with no material outstanding or executory obligations or Liabilities any of its Subsidiaries (such Contracts as are required to be set forth listed on Section 3.13(a) 4.18 of the Company Disclosure Schedule, the “Material Contracts”). TrueExcept as set forth in Section 4.18 of the Disclosure Schedule, correct the Company is not party to any Contract with Clean Coal Solutions Services, LLC.
(b) Neither the Company nor any of its Subsidiaries has breached or defaulted under, nor is there any written claim or threat that the Company or any of its Subsidiaries has breached or defaulted under, any term or condition of any Material Contract. Each Material Contract is in full force and effect and is a valid and binding agreement of and enforceable against the Company or its Subsidiary, as applicable, and, to the Company’s Knowledge, the other parties thereto, and, to the Company’s Knowledge, no other party to any such Material Contract is in default under such Material Contract. To the Company’s Knowledge, there are no circumstances that are reasonably likely to occur that could reasonably be expected to adversely affect the Company’s or its Subsidiaries’ ability to perform their obligations under any Material Contract. The Company has delivered to the Investor and the Investor’s legal counsel true, correct, and complete copies of the all Material Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, (together with all amendments amendments, modifications, and supplements thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease and no Material Contract has been rescinded or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled terminated by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;applicable Subsidiary of the Company.
(ivc) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from Each Contract between the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees Affiliate of the Company or (excluding its Subsidiaries), on the other hand;
(xiv) any Contract , was entered into in the ordinary course of business, is consistent with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate past practice of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)on an arm’s-length basis.
Appears in 2 contracts
Sources: Class B Unit Purchase Agreement (Ada-Es Inc), Class B Unit Purchase Agreement (Ada-Es Inc)
Material Contracts. (a) Section 3.13(a) Schedule 4.25 delivered to AMCON by HNWC prior to the execution of the Company Disclosure Schedule contains a listing of this Agreement lists all Contracts described in clauses (i) through (xiii) below material contracts and agreements to which, as of the date of this Agreementhereof, the Company or its Subsidiaries HNWC is a party or by which they are boundis bound or under which HNWC has or may acquire any rights, which involve or relate to (i) obligations of HNWC for borrowed money or other indebtedness where the amount of such obligations exceeds $50,000 individually, (ii) the lease by HNWC, as lessee or lessor, of real property for rent of more than $25,000 per annum, (iii) the purchase or sale of goods (other than a Company Benefit Plan, and raw material to be purchased by HNWC on terms that are customary and consistent with the past practice of HNWC and in amounts and at prices substantially consistent with past practices of HNWC) or services with an aggregate minimum purchase price of more than $25,000 per annum, (iv) rights to manufacture and/or distribute any product which accounted for more than $25,000 of the consolidated revenues of HNWC during the fiscal year ended December 31, 1999 or under which HNWC received or paid license or other fees in excess of $25,000 during any year, (v) the purchase or sale of assets or properties not expired in the ordinary course of business having a purchase price in excess of $25,000, (vi) the right (whether or have not been terminated and not currently exercisable) to use, license (including any Contracts pursuant to which the Company has with no material outstanding "in-license" or executory obligations "outlicense"), sublicense or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) otherwise exploit any intellectual property right or other proprietary asset of the Company Disclosure ScheduleHNWC or any other Person which, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, when considered together with all amendments thereto):
such other rights, is material to HNWC; (ivii) any Contract relating material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of HNWC (A) to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by compete with any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) to acquire any product or other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent asset or any of its Affiliates after the Closingservices from any other Person, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting to solicit, hire or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of retain any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryas an employee, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xviD) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person; (ix) any employment currency hedging; (x) individual capital expenditures or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries commitments in excess of $300,000 25,000; or (Bxi) aggregate payments any license, lease or other right to or from the Company or use any water used by HNWC in its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable bottling operations. All such contracts and agreements are duly and validly executed by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid HNWC and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is are in full force and effect and enforceable in accordance with its terms against the Company all material respects. HNWC has not violated or its Subsidiaries breached, or committed any default under, any contract or agreement, and, to the Company’s Knowledgeknowledge of HNWC, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium no other Person has violated or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofbreached, or committed any default under, any contract or agreement, which violation, breach or default (alone or in combination with other violations, breaches or defaults under such contract or agreement or under other contracts or agreements) has had or may reasonably be expected to have a HNWC Material Contract and (iii) no Adverse Effect. No event has occurred that (with or without due which, after notice or lapse the passage of time or both, would constitute a default by HNWC under any contract or agreement or give any Person the right to (A) would result declare a default or exercise any remedy under any contract or agreement, (B) receive or require a rebate, chargeback, penalty or change in a material breach ofdelivery schedule under any contract or agreement, (C) accelerate the maturity or performance of any contract or agreement, or default under(D) cancel, terminate or modify any Material Contract by the Company contract or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatagreement, in each casecase which, do not contain any together with all other events of the types referred to in clauses (A), (B), (C) and (D) of this sentence has had or may reasonably be expected to have a HNWC Material Adverse Effect. All such contracts and agreements will continue, after the Effective Time, to be binding in all material executory or continuing terms, conditions, obligations or rights)respects in accordance with their respective terms until their respective expiration dates.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Hawaiian Natural Water Co Inc), Merger Agreement (Amcon Distributing Co)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains lists each of the following Contracts to which the Company or any Company Subsidiary is a listing party, or by which it is bound or to which any of all Contracts described its respective assets or properties is bound, in clauses (i) through (xiii) below to whicheach case, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities Agreement (such Contracts as are required to be set forth Contracts, whether or not listed on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K) that has been, or was required to Indebtedness be, filed with the SEC with the Company’s Annual Report on Form 10-K for borrowed money the year ended March 31, 2018 or any SEC Reports filed after the date of filing of such Form 10-K until the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesdate hereof;
(ii) any Contract under which for the purchase of materials, supplies, goods, services, equipment or other assets that, during the fiscal year ended March 31, 2018, resulted in, or during the fiscal year ended March 31, 2019, is reasonably expected to result in, aggregate purchases or other spend by the Company or its Subsidiaries is lessee any Company Subsidiary of $1,000,000 or holds more, or operatesrequires the Company or any Company Subsidiary, in each caseafter the Closing Date, any tangible property (other than real property), owned by any other Person, except for any lease to purchase or agreement under which spend $5,000,000 or more over the aggregate annual rental payments do not exceed $500,000life of such Contract;
(iii) any Contract under which that relates to the creation, incurrence, assumption or guarantee of Indebtedness of the Company or its any Company Subsidiary in an amount in excess of $100,000 (except for such Indebtedness between the Company and any of the wholly owned Company Subsidiaries is lessor of or permits any third party to hold or operatebetween the wholly owned Company Subsidiaries, in each case, any tangible property (other than real property), owned or controlled guarantees by the Company of Indebtedness of any of the wholly owned Company Subsidiaries and guarantees by any of the Company Subsidiaries of Indebtedness of the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000other wholly owned Company Subsidiary);
(iv) any (A) joint ventureContract that involves any exchange-traded or over-the-counter swap, profit-sharingforward, partnershipfuture, collaborationoption, co-promotioncap, commercialization floor or research or development Contractcollar financial contract, or similar Contractany other interest-rate, in each casecommodity price, which requires, equity value or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)foreign currency protection contract;
(v) any Contract that (A) limits relates to the formation, creation, operation, management or purports to limitcontrol of a material partnership, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” joint venture or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingarrangement;
(vi) any Contract requiring containing (A) any future capital commitment or capital expenditure (or series covenant limiting in any material respect the right of capital expenditures) by the Company or its any Company Subsidiary to engage in any line of business or to compete with any Person in any line of business or geographic area, (B) a “most favored nation” clause or other term providing preferential pricing or treatment to a third party, or (C) a right of first refusal or right of first offer or similar right or that limits the ability of the Company or any of the Company Subsidiaries in to sell, transfer, pledge or otherwise dispose of assets or any business with an amount aggregate value in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement100,000;
(vii) any Contract requiring the Company any capital commitment or its Subsidiaries to guarantee the Liabilities capital expenditures (including any series of any Person (other than the Company or a Subsidiaryrelated expenditures) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000600,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make with any loan, advanceSignificant Customer, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregateSignificant Supplier (other than, in an amount in excess of $200,000 or made any capital contribution to, or other investment ineach case, any Personnonmaterial purchase or sale order);
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedulecollective bargaining agreement or similar agreement with a labor union or representative;
(x) any Contract with Company Benefit Plan that provides for acceleration of any Person (A) pursuant to which equity incentive, or the Company or its Subsidiaries (or Parent or any payment of its Affiliates after the Closing) is or may be required to pay milestones, royalties severance or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right benefits upon termination of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertyemployment;
(xi) any Contract for that relates to the acquisition or disposition of any portion of the business, assets or business properties (whether by merger, sale of stock, sale of assets or otherwise) (A) for aggregate consideration in excess of $1,000,000 that was entered into on or after January 1, 2015 or (B) that otherwise contains material continuing rights or obligations of the Company or its Subsidiaries or for the acquisition by the any Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationSubsidiary;
(xii) any settlement, conciliation Contract that contains any provision that limits or similar Contract restricts (Aor purports to limit or restrict) requiring monetary payments by the ability of the Company or its any of the Company Subsidiaries after to make distributions or declare or pay dividends in respect of their Equity Interests, in each case, other than the date articles of this Agreement, incorporation and bylaws (Bor equivalent organizational documents) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on of the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andCompany Subsidiary;
(xiii) each collective bargaining agreement or other any Contract with that is between the Company or its any of the Company Subsidiaries, on the one hand, and any labor union, labor organization director or works council representing employees officer of the Company or its Subsidiariesthe Company Subsidiaries or any Person beneficially owning 5% or more of the outstanding Shares, on the other handhand (except for any Company Benefit Plan);
(xiv) any Contract settlement or similar agreement with any Governmental Authority or Order or Consent of a Governmental Authority to which the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries is subject involving future performance by the Company or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, the Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)Subsidiaries;
(xv) any employmentmortgage, consultingpledge, bonussecurity agreement, commissions deed of trust or other Contract in respect of any indebtedness for borrowed money granting a Lien, other than a Permitted Lien, on any material property or asset of the Company or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;Company Subsidiary; and
(xvi) any employment Contract that is a license, royalty, settlement, pharmaceutical or consulting other collaboration agreement (excluding clinical trial agreements) or similar Contract with severancerespect to Intellectual Property (other than generally commercially available shrink wrap, change in control, retention clickware or similar arrangements, that will result in any obligation (absolute “off-the-shelf” software and Contracts pursuant to which a license of Intellectual Property is granted to or contingent) of by the Company or any Company Subsidiary that is incidental to the primary purpose of its Subsidiaries such Contract) that involved aggregate payments by or to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 any Company Subsidiary for the year ended March 31, 2018, or (B) is reasonably expected to involve aggregate payments by or to or from the Company or its Subsidiaries in excess any Company Subsidiary for the year ended March 31, 2019, of $1,500,000 500,000 or more, or over the life of the agreement andsuch Contract, in each case, that is not terminable by the applicable the Company of $1,000,000 or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticemore.
(b) With such exceptions that would not, individually or in the aggregate, reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (i) Each each Material Contract is valid valid, binding and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against respect to the Company or its and the Company Subsidiaries party thereto and, to the Knowledge of the Company’s Knowledge, each other party thereto, except as such enforceability (x) may be limited by the counterparties thereto (subject to effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting generally the enforcement of creditors’ rights generally and (y) is subject to the effect of general principles of equity (regardless of whether considered in a proceeding at Law or in equity), (ii) none of the Company or its Subsidiaries andany Company Subsidiary has received any written claim of breach, to violation or default under or cancellation of any Material Contract, and none of the Company’s Knowledge, the counterparties thereto are not Company or any Company Subsidiary is in material breach or violation of, or default under, any Material Contract and (iii) to the Knowledge of the Company, no event has occurred that (with other party is in breach or without due notice or lapse of time or both) would result in a material breach violation of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoContract. The Company has made available to Parent true True and complete correct copies of all Material Contracts in effect as of have been made available to Parent prior to the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Abaxis Inc), Merger Agreement (Zoetis Inc.)
Material Contracts. (a) Except for any Company Employee Benefit Plan and the Contracts filed as exhibits to or incorporated by reference in the Company SEC Documents filed or furnished since the date of the Company’s most recent Annual Report on Form 10-K that are available as of the date prior to the date of this Agreement, Section 3.13(a3.11(a) of the Company Disclosure Schedule contains sets forth a listing list of all the following Contracts described in clauses (i) through (xiii) below to whichwhich the Company or any of its Subsidiaries is, as of the date of this Agreement, a party or by which it or its assets or properties are bound (each Contract required to be set forth on Section 3.11(a) of the Company Disclosure Schedule, together with each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.11(a) of the Company Disclosure Schedule if entered into prior to the execution and delivery of this Agreement, collectively, the “Company Material Contracts”). Except as set forth on Section 3.11(a) of the Company Disclosure Schedule, none of the Company or its Subsidiaries is a party to, or by which they are bound, other than a Company Benefit Planbound by, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) asset of the Company Disclosure Scheduleor any of its Subsidiaries is bound by, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):any:
(i) Contract under which the Company or any Contract relating to of its Subsidiaries has borrowed, guaranteed, assumed or incurred any Indebtedness for borrowed money (including any indenture, note or other instrument evidencing Indebtedness for borrowed money) having an outstanding or committed amount in excess of the Company or its Subsidiaries or to the placing of a $1,000,000 (other than intercompany financing arrangements);
(ii) Contract resulting in any Lien (other than a any Permitted Lien) on any material portion of the assets or properties of the Company or any of its Subsidiaries;
(iiiii) Contract providing for the Company or any of its Subsidiaries to make (or agreeing to make), directly or indirectly, any loan, advance, or assignment of payment to any person or to make any capital contribution to, or other investment in, any person (excluding any intercompany financing arrangements), in each case in excess of five hundred thousand dollars ($500,000), except where such advances are in respect of royalty payments made to content partners;
(iv) Contract providing for aggregate payments to or from the Company or any of its Subsidiaries in excess of two million and five-hundred thousand dollars ($2,500,000) in any calendar year, other than those that can be terminated without material penalty by the Company or its applicable Subsidiary upon ninety (90) days’ notice or less and can be replaced with a similar Contract on materially equivalent terms in the ordinary course of business, except where such payments are in respect of minimum guarantees on royalty payments made to content partners;
(v) Contract that limits or restricts the Company or any of its Subsidiaries (or after the Closing, Parent or any of its Affiliates) from (A) engaging or competing in any line of business or business activity in any jurisdiction or (B) acquiring any material product or asset or receiving material services from any person or selling any product or asset or performing services for any person;
(vi) any Contract under which the Company or any of its Subsidiaries is lessee of or holds or operates, in each case, any material tangible property (other than real property), owned by any other Person, except for person necessary to operate the business of the Company or any lease or agreement under which the aggregate annual rental payments do not exceed $500,000of its Subsidiaries;
(iiivii) any Contract under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by such of the Company or its Subsidiaries, except for any lease or agreement Contract under which the aggregate annual rental payments do not exceed two hundred and fifty thousand dollars ($200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts250,000);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(viviii) any Contract requiring any future capital commitment or capital expenditure (or series of capital commitments or expenditures) by the Company or any of its Subsidiaries in an amount in excess of one million dollars (A$1,000,000) $300,000 annually or one million dollars (B$1,000,000) $1,000,000 over the life term of the agreementContract;
(viiix) any Contract requiring the Company or any of its Subsidiaries to guarantee the Liabilities of any Person person (other than any other of the Company or its Subsidiaries) or pursuant to which any person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiaryof its Subsidiaries) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andSubsidiaries;
(xviix) any material interest rate, currency, or other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.hedging Contracts;
(ixi) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract Contracts providing for indemnification by the Company or any of its Subsidiaries orSubsidiaries, to except for any such Contract that is entered into in the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies ordinary course of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).business;
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Getty Images Holdings, Inc.), Merger Agreement (Shutterstock, Inc.)
Material Contracts. (a) Except as set forth in Section 3.13(a) 5.15 of the Company Seller Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below or as filed as exhibits to which, as of the Seller SEC Reports prior to the date of this Agreement, the Company or and except for this Agreement, neither Seller nor any of its Subsidiaries is a party to or is bound by which they are boundany contract, other than a Company Benefit Planarrangement, and that are not expired commitment or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
understanding (i) any Contract relating to Indebtedness for borrowed money that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
Exchange Act), (ii) which limits the ability of Seller or any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to compete or engage or compete in any line of business or with any Person or to solicit business in any area or that would so limit or purport to limitgeographic area, in any material respect, the operations of Parent (iii) which provides for exclusivity by Seller or any of its Affiliates after the ClosingSubsidiaries with respect to any material products or services sold or purchased by Seller or any of its Subsidiaries, (Biv) contains that by its terms would prohibit or materially delay the consummation of the Offer, the Merger or any exclusivityof the other transactions contemplated by this Agreement, “most favored nation” or similar provisions, obligations or restrictions or (Cv) contains with any other provisions restricting or purporting to restrict the ability customer of the Company Seller or its Subsidiaries which is expected to sellrelate to more than $1,000,000 in annual revenue for the fiscal year ending September 30, manufacture2008. Each contract, developarrangement, commercializecommitment or understanding of the type described above in this Section 5.15, test whether or research productsnot set forth in Section 5.15 of the Seller Disclosure Schedule, directly is referred to herein as a “Seller Contract.” All of the Seller Contracts are valid and binding on Seller and each of its Subsidiaries that is a party thereto and, to Seller’s knowledge, each other party thereto, as applicable, and in full force and effect, subject to applicable bankruptcy, insolvency, moratorium or indirectly through third partiesother similar Laws relating to creditors’ rights and general principles of equity. Neither Seller nor any of its Subsidiaries has, or and to solicit any potential employee or customerthe knowledge of Seller, in each casenone of the other parties thereto have, violated in any material respect any provision of, or that committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would so limit or purports to limit, in any constitute a material respect, Parent or any of its Affiliates after default under the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities provisions of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a SubsidiarySeller Contract, except in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orfor those violations and defaults which, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required would not reasonably be expected to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or a Seller Material Adverse Effect and neither Seller nor any of its Subsidiaries to make has received written notice of any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeforegoing.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Merger Agreement (BladeLogic, Inc.), Merger Agreement (BMC Software Inc)
Material Contracts. (a) Section 3.13(a) of Except as set forth on SCHEDULE 5.13 hereto, neither the Company Disclosure Schedule contains nor any Subsidiary is a listing of all Contracts described in clauses party to any (i) through (xiii) below to which, as material contract not made in the ordinary course of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
business; (ii) contract for the employment of any Contract under which the Company officer or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
employee; (iii) any Contract under which contract for the Company future purchase of materials, supplies, services, merchandise or its Subsidiaries is lessor equipment not capable of being fully performed or permits any third party to hold not terminable within a period of one year from the date hereof or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
excess of normal operating requirements; (iv) agreement for the sale or lease of any of its assets other than in the ordinary course of business; (Av) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization contract or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries commitment for capital expenditures in excess of $1,000,000 over the life 100,000; (vi) lease of the Contract machinery or equipment involving annual payments in excess of $100,000; (vii) loan agreement, promissory note issued by it, guarantee, subordination or similar type of agreement; (viii) stock option, retirement, severance, pension, bonus, profit sharing, group insurance, medical or other fringe benefit plan or program providing employee benefits; (ix) consulting agreement; (x) municipal or other governmental franchise agreements; (xi) agreement with a labor union or labor association; (xii) agreement providing for indemnification of any other parties; or (Bxiii) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, agreement restricting the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent Company's or any of its Affiliates after the Closing, Subsidiaries' ability to conduct business generally (Bor any type of business) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any location. Complete and correct copies of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 such agreement have been furnished or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required available to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made Acquiror. Except as set forth in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableSCHEDULE 5.13 hereto, to the Company’s KnowledgeSeller's knowledge, all of the counterparties theretoforegoing agreements, leases, and is other documents are valid, binding and in full force and effect effect, and enforceable in accordance with its terms against the Company or and its Subsidiaries and, have performed all of the obligations required to the Company’s Knowledge, the counterparties thereto (subject be performed by them to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights date and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, default (or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or bothboth will be in default) under any of the agreements, leases, contracts or other documents to which any of then is a party listed on SCHEDULE 5.13, other than for those failures to perform and defaults which, in the aggregate, would not be reasonably likely to result in a material breach ofMaterial Adverse Effect. Except as set forth in SCHEDULE 5.13 hereto, or default underto the Seller's knowledge, any Material Contract by no party with whom the Company or its Subsidiaries ora Subsidiary has such a scheduled agreement is in default (or with notice of lapse of time or both will be in default) thereunder, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatwhich default, in each casethe aggregate, do not contain would be reasonably likely to result in a Material Adverse Effect. Except as disclosed herein or in SCHEDULE 5.13 hereto, neither the Company nor any Subsidiary is a party to any non-competition or similar agreement which restricts in any material executory or continuing terms, conditions, obligations or rights)way the current operation of their businesses taken as a whole.
Appears in 2 contracts
Sources: Merger Agreement (Universal Outdoor Holdings Inc), Merger Agreement (Universal Outdoor Holdings Inc)
Material Contracts. (a) Except as disclosed in Section 3.13(a) 5.14 of the Company Foilmark Disclosure Schedule contains Memorandum or otherwise reflected in the Foilmark Financial Statements, none of the Foilmark Companies, nor any of their respective Assets, businesses, or operations, is a listing of all Contracts described in clauses party to, or is bound or affected by, or receives benefits under, (i) through any employment, severance, termination, consulting, or retirement Contract providing for payments to any Person, except for Contracts referred to in Section 5.13(a) of this Agreement and unwritten Contracts with respect to the employment of hourly personnel terminable at will or upon statutorily required notice, (xiiiii) below any Contract relating to whichthe borrowing of money by any Foilmark Company or the guarantee by any Foilmark Company of any such obligation (other than Contracts for purchase money indebtedness in an aggregate amount not exceeding $50,000, Contracts evidencing trade payables, and Contracts relating to borrowings or guarantees made in the ordinary course of business), (iii) any Contract which prohibits or restricts any Foilmark Company from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (iv) any Contract between or among Foilmark Companies, (v) any Contract involving the licensing or use of Intellectual Property, (vi) any lease of real property as lessee or lessor, (vii) any Contract relating to the purchase or sale of any goods or services (other than Contracts entered into in the ordinary course of business and that are either (x) terminable by each Foilmark Company that is a party thereto upon not more than sixty (60) days notice without payment or penalty or (y) has a remaining term of not more than six months from the date of this Agreement and involves payments not in excess of $50,000 per year), and (viii) any other Contract or amendment thereto that would be required to be filed as an exhibit to a Form 10-K filed by Foilmark with the SEC as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities Agreement (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(iContracts referred to in Sections 5.9 and 5.13(a) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing"Foilmark Contracts"); and
(xiii) . With respect to each collective bargaining agreement or other Foilmark Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees except as disclosed in Section 5.14 of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
Foilmark Disclosure Memorandum: (i) Each Material the Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), effect; (ii) the no Foilmark Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are is in Default thereunder except for any such Default as would not in material breach of, or default under, any have a Material Contract and Adverse Effect on Foilmark; (iii) no event Foilmark Company has occurred that repudiated or waived any material provision of any such Contract; and (with or without due notice or lapse of time or bothiv) would result in a material breach of, or default under, no other party to any Material such Contract by the Company or its Subsidiaries oris, to the Company’s KnowledgeKnowledge of Foilmark, the counterparties theretoin Default in any respect, or has repudiated or waived any material provision thereunder. The Company has made available to Parent true and complete copies of all Material Contracts Except as disclosed in effect as Section 5.14 of the date hereof (other than purchase ordersFoilmark Disclosure Memorandum, invoices, and similar confirmatory all of the indebtedness of any Foilmark Company for money borrowed is prepayable at any time by such Foilmark Company without penalty or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)premium.
Appears in 2 contracts
Sources: Merger Agreement (Holopak Technologies Inc), Merger Agreement (Simon Robert J)
Material Contracts. (a) Section 3.13(a3.9(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as Schedules lists each of the date following Contracts of this Agreement, the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts, together with all Contracts as are required to be set forth on in Section 3.13(a3.10(c) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure ScheduleSchedules, the being “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any each Contract relating to Indebtedness for borrowed money of that cannot be cancelled by the Company or its Subsidiaries Subsidiary without penalty or to the placing of a Lien without more than thirty (other than a Permitted Lien30) on any material assets or properties of the Company or its Subsidiariesdays’ notice;
(ii) any Contract under which all Contracts that require the Company or any of its Subsidiaries is lessee to purchase its total requirements of any product or holds service from a third party or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease that contain “take or agreement under which the aggregate annual rental payments do not exceed $500,000pay” provisions;
(iii) excluding any Contract under which indemnification for infringement of Intellectual Property granted to customers of the Company or its Subsidiaries is lessor in connection with the provision of or permits any third party to hold or operatethe Company’s services, in each case, any tangible property (other than real property), owned or controlled all Contracts that provide for the indemnification by the Company or any of its SubsidiariesSubsidiaries of any Person or the assumption of any Tax, except for environmental or other Liability of any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (A) joint venturewhether by merger, profit-sharingsale of stock, partnership, collaboration, co-promotion, commercialization sale of assets or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contractsotherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Company or any Contract of its Subsidiaries is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Company or any of its Subsidiaries is a party and which are not cancellable without material penalty or without more than thirty (30) days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to Indebtedness;
(viii) all Contracts with any Governmental Authority to which the Company or any of its Subsidiaries is a party (“Government Contracts”);
(ix) all Contracts that (A) limits limit or purports purport to limit, in any material respect, limit the freedom ability of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or that would so limit or purport to limit, in during any material respect, the operations period of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Scheduletime;
(x) any Contract with any Person (A) pursuant Contracts to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries is a party that provide for any joint venture, partnership or similar arrangement by the Company or any of its Subsidiaries;
(xi) all collective bargaining agreements or Contracts with any Union to make which the Company or any payment or incur any Liability as of its Subsidiaries is a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothparty; and
(xviixii) any other Contract the performance of which requires either (A) annual payments that is material to or from the Company or any of its Subsidiaries in excess of $300,000 or (B) aggregate payments and not previously disclosed pursuant to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticethis Section 3.9.
(ib) Each Material Contract is valid and binding on the Company or the Subsidiary that is a party thereto in accordance with its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, terms and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andsubject, as to enforcement, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or and other Laws laws affecting generally the enforcement of creditors’ rights generally and subject to general principles of equity). None of the Company, (ii) the Company or any of its Subsidiaries andor, to the Knowledge of the Company’s Knowledge, the counterparties any other party thereto are not is in material breach of, of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract and (iii) Contract. To the Knowledge of the Company, no event or circumstance has occurred that (that, with or without due notice or lapse of time or both) , would constitute an event of default under any Material Contract or result in a material breach of, termination thereof or default under, would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract by the Company or its Subsidiaries or(including all modifications, to the Company’s Knowledge, the counterparties thereto. The Company has amendments and supplements thereto and waivers thereunder) have been made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Parent.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Quality Systems, Inc)
Material Contracts. (a) Section 3.13(a3.15(a) of the Company Disclosure Schedule contains a listing true, complete and correct list of all Contracts described in clauses (i) through (xiii) below to which, as each of the date of this Agreementfollowing contracts, agreements and commitments (including, without limitation, oral and informal arrangements to the Company or its Subsidiaries is a party or by which they extent the same are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant material to the Business) to which the Company has with no material outstanding or executory obligations or Liabilities any Subsidiary is a party (such Contracts as are required to be contracts and agreements, together with all contracts, agreements, leases and subleases concerning the management or operation of any Leased Real Property (including, without limitation, brokerage contracts) listed in Section 3.17(a) or 3.17(b) of the Company Disclosure Schedule, and all agreements set forth on in Section 3.13(a3.16(a) of the Company Disclosure Schedule, the “"Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto"):
(i) each contract, agreement, invoice, purchase order and other arrangement for the purchase of inventory, spare parts, other materials or personal property with any Contract relating supplier or for the furnishing of services to Indebtedness for borrowed money the Company, any Subsidiary or otherwise related to the Business under the terms of which the Company or its Subsidiaries any Subsidiary could reasonably be expected to pay or to otherwise give consideration of more than US$25,000 in the placing aggregate during the fiscal year ending March 31, 1999 or US$250,000 over the remaining term of a Lien (other than a Permitted Lien) on any material assets or properties of such contract, and which cannot be canceled by the Company or its Subsidiariessuch Subsidiary without penalty or further payment and without more than 30 days' notice;
(ii) each contract, agreement, invoice, sales order and other arrangement for the sale of inventory or other personal property or for the furnishing of services by the Company or any Contract Subsidiary or otherwise related to the Business under the terms of which the Company or its Subsidiaries is lessee any Subsidiary could reasonably be expected to receive consideration of or holds or operates, more than US$25,000 in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do during the fiscal year ending March 31, 1999 or US$250,000 over the remaining term of the contract, and which cannot exceed $500,000be canceled by the Company or such Subsidiary without penalty or further payment and without more than 30 days' notice;
(iii) any Contract under which the Company each broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing consulting and advertising contract, agreement or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000commitment;
(iv) each contract, agreement or commitment with any present or former employee, independent contractor or consultant (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization excluding routine engagement letters with individual attorneys or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contractslaw firms);
(v) any Contract that (A) limits each contract, agreement or purports commitment relating to limit, in any material respect, the freedom Indebtedness of the Company or its Subsidiaries any Subsidiary;
(vi) each contract, agreement or commitment with any Governmental Authority;
(vii) each contract, agreement or commitment limiting or purporting to engage limit the ability of the Company, any Subsidiary, the Business or any successor thereto to compete in any line of business or with any Person person or in any geographic area or that would so limit or purport to limit, in during any material respect, the operations period of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000time;
(viii) any Contract under which each contract, agreement or commitment between or among the Company or its Subsidiaries has, directly any Subsidiary and the Company or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside affiliate of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonCompany;
(ix) each contract, agreement or commitment providing for benefits under any Contract required to be disclosed on Section 3.19 of the Company Disclosure SchedulePlan;
(x) any Contract with any Person (A) pursuant to which the Company each contract, agreement or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) commitment under which the Company has obtained or its Subsidiaries grants to will obtain any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for each contract, agreement or commitment that materially limits or restricts, or could reasonably be expected to materially limit and restrict, the disposition of any portion of the assets or business ability of the Company or its Subsidiaries any Subsidiary or, immediately after the Effective Time, Nu Skin or for any subsidiary thereof, to use, modify, display, reproduce, distribute, license, sell or provide the acquisition by the Company Company's or its Subsidiaries of the assets any Subsidiaries' products or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationservices;
(xii) each contract, agreement or commitment, whether or not made in the ordinary course of business, which is material to the Company, any settlement, conciliation Subsidiary or similar Contract (A) requiring monetary payments by the Company conduct of the Business or its Subsidiaries after the date absence of this Agreement, (B) with which could reasonably be expected to have a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)Material Adverse Effect; and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, research and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticecollaboration contract.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Merger Agreement (Nu Skin Enterprises Inc), Merger Agreement (Nu Skin Enterprises Inc)
Material Contracts. (a) Except for this Agreement, the Parent Employee Benefit Plans and Policies, except as filed with, or disclosed or incorporated in, the Parent SEC Documents or except as set forth on Section 3.13(a) 4.16 of the Company Sellers’ Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date of this Agreementhereof, the Company or its Subsidiaries no Seller is a party to or bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including (i) any Contracts pursuant to which the Company has with no “material outstanding or executory obligations or Liabilities contract” (as such Contracts as are required to be set forth on Section 3.13(aterm is defined in Item 601(b)(10) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies Regulation S-K of the Contracts listed on Section 3.13(aSEC); (ii) any non-compete or exclusivity agreement that materially restricts the operation of Sellers’ core business; (iii) any asset purchase agreement, stock purchase agreement or other agreement entered into within the Company Disclosure Schedule have previously been made available past six years governing a material joint venture or the acquisition or disposition of assets or other property where the consideration paid or received for such assets or other property exceeded $500,000,000 (whether in cash, stock or otherwise); (iv) any agreement or series of related agreements with any supplier of Sellers who directly support the production of vehicles, which provided collectively for payments by Sellers to Parent such supplier in excess of $250,000,000 during the 12-month period ended December 31, 2008; (v) any agreement or its agents or representativesseries of related agreements with any supplier of Sellers who does not directly support the production of vehicles, together with all amendments thereto):
which, provided collectively for payments by Sellers to such supplier in excess of $100,000,000 during the 12-month period ended April 30, 2009; (ivi) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor purchase of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
aircraft; (vii) any Contract requiring the Company settlement agreement where a Seller has paid or its Subsidiaries may be required to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in pay an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
100,000,000 to settle the Claims covered by such settlement agreement; (ixviii) any material Contract required to that will, following the Closing, as a result of transactions contemplated hereby, be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company between or its Subsidiaries (or Parent among a Seller or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its SubsidiariesRetained Subsidiary, on the one hand, and Purchaser or any labor union, labor organization or works council representing employees of the Company or its SubsidiariesPurchased Subsidiary, on the other hand;
hand (xivother than the Ancillary Agreements); and (ix) any Contract agreements entered into in connection with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate a material joint venture (all Contracts of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmenttype described in this Section 4.16(a) being referred to herein as “Seller Material Contracts”);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(ib) Each No Seller is in breach of or default under, or has received any written notice alleging any breach of or default under, the terms of any Seller Material Contract or material License, where such breach or default would reasonably be expected to have a Material Adverse Effect. To the Knowledge of Sellers, no other party to any Seller Material Contract or material License is valid in breach of or default under the terms of any Seller Material Contract or material License, where such breach or default would reasonably be expected to have a Material Adverse Effect. Except as would not reasonably be expected to have a Material Adverse Effect, each Seller Material Contract or material License is a valid, binding and binding on the Company or its Subsidiaries, as applicableenforceable obligation of such Seller that is party thereto and, to the Company’s KnowledgeKnowledge of Sellers, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto (subject to except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, reorganizationmoratorium, moratorium fraudulent transfer and other similar Laws relating to or other Laws affecting generally the enforcement of creditors’ rights generally from time to time in effect and subject by general equitable principles relating to general enforceability, including principles of equity)commercial reasonableness, (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract good faith and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)fair dealing.
Appears in 2 contracts
Sources: Master Sale and Purchase Agreement (General Motors Corp), Master Sale and Purchase Agreement (General Motors Corp)
Material Contracts. (a) Section 3.13(a4.19(a) of the Company Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue, correct and complete list, as of the date hereof, and the Company has made available to Parent and Merger Sub (or Parent’s outside counsel) true, correct and complete copies of this Agreementeach Contract (and any material amendments, supplements and modifications thereto) which is in effect as of the date hereof (or pursuant to which the Company or any of its Subsidiaries has any continuing obligations thereunder) and under which the Company or any of its Subsidiaries is a party or by which they are boundthe Company, other than a Company Benefit Planany of its Subsidiaries or any of their respective properties or assets is bound that (provided, that the true, correct and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be complete list set forth on Section 3.13(a4.19(a) of the Company Disclosure Schedule, Letter shall exclude any Contracts under which Parent or any of its Affiliates is a party):
(i) has been filed or is required to be filed by the Company as a “Material Contracts”). True, correct and complete copies material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K (provided that such Contracts listed on need not be set forth in Section 3.13(a4.19(a) of the Company Disclosure Schedule Letter if true, correct and complete (subject to redactions) copies of such Contracts have previously been made available filed as exhibits to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or SEC Reports prior to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesdate hereof);
(ii) any Contract under which involving aggregate payments by the Company or and its Subsidiaries is lessee or aggregate payments payable to the Company and its Subsidiaries under such Contract of or holds or operatesmore than $250,000 in the twelve (12) month period prior to the date of this Agreement and in any prospective twelve (12) month period (including, in each case, any tangible property (other than real propertyby means of royalty, milestone or similar payments), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract contains covenants that (A) limits or purports to limit, limit in any material respect, respect the freedom of the Company or any of its Subsidiaries (or, after consummation of the Merger, would limit in any material respect the freedom of the Surviving Corporation and its Affiliates) to compete or engage or compete in any line of business business, drug discovery or any development program, therapeutic area or geographic area, or with respect to any class of compounds, molecules or products, or with any Person Person, (B) contain any “most favored nations” or in any area or that would so limit or purport to limit, in any material respect, similar preferential pricing terms and conditions granted by the operations of Parent Company or any of its Affiliates after the ClosingSubsidiaries, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains contain exclusivity obligations (or similar requirement) or otherwise limit in any other provisions restricting material respect the freedom or purporting to restrict the ability right of the Company or any of its Subsidiaries to sell, manufactureresearch, develop, commercializesell, test distribute or research products, directly manufacture any products or indirectly through third parties, services or to solicit customers;
(iv) grants any potential employee third party rights of first refusal, rights of first option, rights of first offer or customer, in each case, similar rights or options to purchase or otherwise acquire any interest in any of the material respect properties or that would so limit or purports to limit, in any assets (including material respect, Parent Intellectual Property Rights) owned by the Company or any of its Affiliates after Subsidiaries;
(v) provides for or governs the Closingformation, creation, operation, management or control of (A) any partnership, joint venture, strategic alliance, collaboration, co-promotion or profit-sharing arrangement or (B) any material research and development arrangement (each Contract under subclauses (A) and (B), a “Collaboration Agreement”);
(vi) provides for the assignment or grant of a license, right or immunity (including a covenant not to ▇▇▇ or right to enforce or prosecute any Contract requiring Patents) by a third party for any future capital commitment of its Intellectual Property Rights to the Company or capital expenditure any of its Subsidiaries, other than Incidental Contracts;
(vii) provides for the assignment or series grant of capital expendituresa license, right or immunity (including a covenant not to ▇▇▇ or right to enforce or prosecute any Patents) by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (Company Intellectual Property Rights to any third party, other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Incidental Contracts;
(viii) any Contract under which other than solely between or among the Company or its Subsidiaries has, directly or indirectly, made or agreed to make and any loan, advance, or assignment of payment to any Person outside Subsidiary of the Ordinary Course of Business orCompany, individually relates to indebtedness for borrowed money (whether incurred, assumed, guaranteed or in the aggregate, in secured by any asset) having an outstanding principal amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person250,000;
(ix) constitutes any acquisition or divestiture Contract required to be disclosed on Section 3.19 (whether by merger, consolidation, purchase or sale of stock or otherwise) of any interest in any Person or any business, line of business or division thereof, or a portion of the Company Disclosure Scheduleassets of any Person that has not yet been consummated or that has continuing material obligations (which obligations shall include any “earnout” or similar contingent or deferred payments);
(x) involves the settlement of any Contract with any Person pending or threatened claim, action or proceeding (A) pursuant to which the Company or its Subsidiaries (or Parent or with any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this AgreementGovernmental Authority, (B) with a Governmental Authority which requires payment obligations after the date hereof, in excess of $250,000 or (C) that imposes any material, continuing material non-monetary obligations on the Company (which obligations shall include any monitoring or its Subsidiaries (material reporting obligations to any other Person or Parent any obligations that limit in any material respect the ability of the Company or any of its Affiliates after the ClosingSubsidiaries to operate its business); and;
(xiiixi) each collective bargaining agreement or other Contract with has been entered into between the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate director or affiliate (other than a wholly-owned Subsidiary of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingentCompany) of the Company or any of its Subsidiaries to make or any payment of their respective “associates” or incur any Liability “immediate family” members (as a result such terms are defined in Rule 12b-2 and Rule 16a-1 of the consummation Exchange Act), on the other hand, including any Contract pursuant to which the Company or any of its Subsidiaries has an obligation to indemnify such officer, director, affiliate or family member (but not including any Plans);
(xii) (A) contains any non-solicitation or non-hire restrictions that purport to impose material obligations or restrictions upon any controlling Affiliates of the transactions contemplated by this AgreementCompany pursuant to the terms thereof or (B) purports to assign or grant a license, termination right or immunity to the Intellectual Property Rights of employment or bothany controlling Affiliates of the Company pursuant to the terms thereof; and
(xviixiii) any other has been entered into with a Governmental Authority. Each Contract of the performance type described in clauses (i) through (xiii) above (whether listed on Section 4.19(a) of which requires either (A) annual payments to or from the Company Disclosure Letter or its Subsidiaries in excess of $300,000 or (B) aggregate payments not), other than a Plan, is referred to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeherein as a “Material Contract”.
(b) Except as would not have a Company Material Adverse Effect, (i) Each each Material Contract is valid and binding on the Company or its Subsidiaries, as applicablethe Subsidiary of the Company that is a party thereto and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, subject to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)Enforceability Exceptions, (ii) the Company or and its Subsidiaries and, have complied with all obligations required to the Company’s Knowledge, the counterparties thereto are not in material breach of, be performed or default under, any complied with by them under each Material Contract and (iii) there is no event has occurred that (with or without due notice or lapse of time time, or both) would result in a material default under or breach of, or default under, of any Material Contract by the Company or any of its Subsidiaries Subsidiaries, or, to the Knowledge of the Company’s Knowledge, the counterparties by any other party thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as As of the date hereof (other than purchase ordershereof, invoicesneither the Company nor any of its Subsidiaries has received any written notice or claim from any third party to any Material Contract of any default, breach, violation, termination or cancellation under any Material Contract. For purposes of this Section 4.19(b) and similar confirmatory or administrative documents that are ancillary Section 6.1(b)(xv)(B), the term “Material Contract” shall be deemed to include any Contract entered into after the date of this Agreement that, if entered into prior to the main contractual relationship between the parties to date hereof, would qualify as a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Biospecifics Technologies Corp), Merger Agreement (Endo International PLC)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below Except for this Agreement and except for Contracts filed as exhibits to whichthe Company Reports, as of the date of this Agreement, none of the Company or its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and bound by:
(A) any Contract that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are would be required to be set forth on Section 3.13(a) filed by the Company pursuant to Item 4 of the Company Disclosure Schedule, Instructions to Exhibits of Form 20-F under the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Exchange Act;
(iB) any Contract relating to Indebtedness for borrowed money involving the payment or receipt of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled amounts by the Company or any of its Subsidiaries, except or relating to indebtedness for borrowed money or any lease or agreement under which the aggregate annual rental payments do not exceed financial guaranty, of more than $200,0001,000,000 in any calendar year on its face;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(vC) any Contract that (A) limits or purports to limitcontains a put, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” call or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or right pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries could be required to make purchase or sell, as applicable, any payment equity interests of any Person or incur assets that have a fair market value or purchase price of more than $1,000,000;
(D) any Liability as a result Contract relating to the formation, creation, operation, management or control of any joint venture;
(E) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the consummation Company or any Person beneficially owning five percent or more of the transactions contemplated by this Agreement, termination outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of employment or bothForm 20-F under the Exchange Act; and
(xviiF) any non-competition Contract or other Contract that limits or purports to limit in any material respect the performance type of business in which requires either (A) annual payments to or from the Company or its Subsidiaries in excess may engage, the type of $300,000 goods or (B) aggregate payments to or from services which the Company or its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the manner or locations in excess which any of $1,500,000 over them may so engage in any business or use their assets. Each such Contract described in clauses (A) through (F) above and each such Contract that would be a Material Contract but for the life exception of the agreement and, in each case, that is not terminable by the applicable being filed as an exhibit to the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeReports is referred to herein as a “Material Contract”.
(iii) Each of the Material Contract Contracts is valid and binding on the Company or its Subsidiaries, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofas would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no breach or default under, under any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract Contracts by the Company or its Subsidiaries or, to and no event has occurred that with the Company’s Knowledge, lapse of time or the counterparties thereto. The giving of notice or both would constitute a breach or default thereunder by the Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatits Subsidiaries, in each casecase except as would not, do or would not contain any material executory reasonably be expected to, individually or continuing termsin the aggregate, conditions, obligations or rights)have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Acorn International, Inc.), Merger Agreement (Tongjitang Chinese Medicines Co)
Material Contracts. (a) Section 3.13(a) SECTION 3.14 of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichlists, as of the date hereof, each of this Agreement, the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which they are boundany of their respective properties or assets is bound and under which any party thereto has continuing rights or obligations (in each case, other than a excluding any Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities ) (such Contracts as are required to be of the type described in this SECTION 3.14(a), whether or not set forth on Section 3.13(a) in SECTION 3.14 of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating that would be required to Indebtedness for borrowed money of be filed by the Company or its Subsidiaries or as a “material contract” pursuant to Item 601(b)(10) of Regulation S K under the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesSecurities Act;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom ability of the Company or any of its Subsidiaries to engage or compete in any material respect in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closinggeographic area, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of requires the Company or any of its Subsidiaries to make conduct any payment business on a “most favored nations” basis with any third party, (C) grants a third party marketing or incur distribution rights relating to any Liability as compound or product being developed by the Company or any Subsidiary of the Company, whether or not yet on the market, (D) requires the Company to purchase a result minimum quantity of goods or supplies relating to any compound or product being developed by the Company or any Subsidiary of the Company, whether or not yet on the market, in favor of any third party or (E) provides for “exclusivity” or any similar requirement in favor of any third party;
(iii) any Contract governing any joint venture, partnership or similar arrangement;
(iv) any Contract constituting Indebtedness and having an outstanding principal amount in excess of $10,000;
(v) any Contract with any Governmental Entity (excluding Permits);
(vi) any Contract with (A) any directors or officers of the Company or any of its Subsidiaries, or (B) any Person that, by itself or together with its Affiliates or those acting in concert with it, beneficially owns, or has the right to acquire beneficial ownership of, at least five percent (5%) of the outstanding shares of Common Stock, other than with respect to clause (A) (x) employee benefits provided under Company Benefit Plans, (y) standard confidentiality and assignment of inventions agreements in the form previously provided to Parent and (z) any Contracts related to the purchase or issuance of Shares and the issuance of Company Options;
(vii) any Contract which, upon the execution or delivery of this Agreement or the consummation of the transactions contemplated by this AgreementAgreement may, termination of employment either alone or both; and
(xvii) in combination with any other Contract event, result in any payment (whether of severance pay or otherwise) becoming due from the performance Company, Parent or any of which requires either (A) annual payments their respective Subsidiaries to any officer or from employee of the Company or any of its Subsidiaries in excess of $300,000 or Subsidiaries;
(Bviii) aggregate payments any Contract pursuant to or from which the Company or any of its Subsidiaries licenses to (an “Outbound IP Agreement”) or licenses from (an “Inbound IP Agreement”) any third party any Intellectual Property that is used in excess of $1,500,000 over the life conduct of the agreement andbusiness of the Company and the Subsidiaries of the Company as currently conducted, in each case, including any such Intellectual Property that is not terminable by the applicable the Company used in or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, related to the Company’s Knowledgedevelopment, the counterparties theretomarketing, labeling, promotion, sale, use, handling or manufacture of each FDA Regulated Product and is in full force and effect and enforceable in accordance with its terms against the Company any other compound or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract product being developed by the Company or its Subsidiaries or, to any Subsidiary of the Company’s Knowledge, whether or not yet on the counterparties thereto. The market; provided, that the Company has made available shall not be required to Parent true and complete copies of all Material list the following Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).on SECTION 3.14
Appears in 2 contracts
Sources: Merger Agreement (Acer Therapeutics Inc.), Merger Agreement (Zevra Therapeutics, Inc.)
Material Contracts. (a) Section 3.13(aSchedule 3.11 contains an accurate description of all agreements, contracts, commitments, and other instruments and arrangements (whether written or oral) of the Company Disclosure Schedule contains a listing of all Contracts types described in clauses below (i) through by which the Companies or any of their assets, businesses, or operations receive benefits, or (xiiiii) below to which, as of which the date of this Agreement, the Company or its Subsidiaries is Companies are a party or by which they the Companies are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which insignificant contracts entered into in the Company has ordinary course of business consistent with no material outstanding or executory obligations or Liabilities past practice (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True):
(i) leases, licenses, permits, franchises, insurance policies, warranties, guarantees, Governmental Approvals, and other contracts concerning or relating to the Companies’ real property,
(ii) contracts for capital expenditures in excess of $50,000 each;
(iii) performance bonds, completion bonds, bid bonds, suretyship agreements and similar instruments;
(iv) joint venture, partnership, and similar contracts involving a sharing of profits and/or expenses;
(v) agreements providing for the leasing to or by the Companies of personal property;
(vi) Line Extension Agreements; and
(vii) agreements or instruments under which the Companies have acquired or hold their Water Rights; and
(b) Seller has delivered to Purchaser complete and correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representativesall written Material Contracts, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(ic) Each All Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is Contracts are in full force and effect and enforceable against each party thereto. To the Knowledge of Seller, except for an existing subcontractors claim and existing mechanics lien in accordance with its terms against the Company or its Subsidiaries andapproximate amount of $107,000.00, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are there does not in material breach of, or default under, exist under any Material Contract and (iii) no any event has occurred that (with of default or without due event or condition that, after notice or lapse of time or both) , would result in constitute a material breach ofviolation, breach, or event of default under, thereunder on the part of the Companies or any other party thereto. No consent of any third party is required under any Material Contract by as a result of or in connection with, and the Company or its Subsidiaries or, to the Company’s Knowledgeenforceability of any Material Contract will not be affected in any manner by, the counterparties thereto. The Company has made available to Parent true execution, delivery and complete copies performance of all Material Contracts in effect as this Agreement or the consummation of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)transactions contemplated hereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Global Water Resources, Inc.), Asset Purchase Agreement (Global Water Resources, Inc.)
Material Contracts. (a) Section 3.13(a) Schedule 3.9 contains a complete and accurate list of all existing contracts and commitments of Seller or a Seller Subsidiary, whether written or oral, used or held for use primarily in the operation or conduct of the Company Disclosure Schedule contains a listing of all Contracts described in clauses Business or by which the Purchased Assets may be bound or affected that (i) through would require over the full term thereof payments by or to Seller or a Seller Subsidiary of more than $500,000, (xiiiii) below to whichare notes, as mortgages, indentures, letters of the date credit, guarantees or other obligations for lending or borrowing of this Agreement, the Company $100,000 or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts more pursuant to which any of the Company has with no material outstanding Purchased Assets are pledged or executory obligations mortgaged as collateral and any agreement creating any guarantee or Liabilities (such Contracts as are required other agreement to be set forth on Section 3.13(a) liable for the obligations of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien another Person (other than Seller or a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real propertySeller Subsidiary), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which are joint venture or partnership agreements used or held for use primarily in the Company operation or its Subsidiaries is lessor conduct of the Business, or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) contain any (A) joint venturecovenant not to compete, profit-sharing, partnership, collaboration, co-promotion, commercialization take or research or development Contractpay, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, covenant prohibiting the development, activity sales, manufacture, marketing or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life distribution of the Contract products or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom services of the Company Business or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company Seller or its Subsidiaries a Seller Subsidiary to sell, manufacture, develop, commercialize, test hire or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of for hire any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant respect to which the Company or its Subsidiaries Business will be obligated following the Closing (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business"Material Contracts"), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) . Each Material Contract is valid valid, binding and binding on enforceable against Seller or the Company or its Subsidiaries, as applicableapplicable Seller Subsidiary and, to the Company’s KnowledgeSeller's knowledge, the counterparties theretoother parties thereto in accordance with its terms, and is in full force and effect and enforceable effect. Except as set forth on Schedule 3.9, neither Seller nor any Seller Subsidiary has received any written notice that it is in accordance with its terms against the Company default under or its Subsidiaries in breach of or is otherwise delinquent in performance under any Material Contract, and, to Seller's knowledge, each of the Company’s Knowledgeother parties thereto has performed all obligations required to be performed by it under, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are is not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (that, with or without due notice or lapse of time time, or both) , would result constitute such a default, except for breaches, failures of performance or defaults that individually or in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, aggregate do not contain any material executory or continuing terms, conditions, obligations or rights)have and would not reasonably be expected to have a Seller Material Adverse Effect.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Avaya Inc), Asset Purchase Agreement (Commscope Inc)
Material Contracts. (a) Section 3.13(a3.20(a) of the Company Disclosure Schedule contains a listing of lists all Contracts described in clauses (i) through (xiii) below to whichwritten and oral contracts, agreements, guarantees, leases, and executory contracts that exist as of the date of this Agreement, hereof to which the Company or any of its Subsidiaries is a party or by which they are it is bound, other than a Company Benefit Plan, and those contracts that are not expired or have not been terminated filed as exhibits to the SEC Reports filed and not including any Contracts pursuant publicly available prior to which the Company has with no material outstanding or executory obligations or Liabilities date of this Agreement (such Contracts as the "Filed Contracts"), that (i) are required to be set forth on Section 3.13(afiled as an exhibit to an SEC Report, (ii) materially restrict or would materially restrict the ability of the Company Disclosure ScheduleCompany, Parent (after giving effect to the “Material Contracts”). True, correct and complete copies consummation of the Contracts listed Merger) or any of their respective Subsidiaries from competing or otherwise conducting their respective businesses substantially as such businesses are conducted on Section 3.13(athe date of this Agreement, or (iii) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money contain minimum annual purchase requirements of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one handmore, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments which have a term of more than $500,000 per year;
(xvi) any employment one year and cannot be cancelled on less than 90 days notice without a material penalty or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of other material financial cost to the Company or any of its Subsidiaries (the contracts so described and the Filed Contracts are referred to make herein collectively as the "Contracts").
(b) Neither the Company nor any payment of its Subsidiaries has received any notice from Sears to the effect, or incur any Liability as a result has otherwise been advised by Sears, that Sears will not renew or will terminate its licensing arrangements with the Company and its Subsidiaries with respect to one-third or more of the consummation then current total number of the transactions contemplated by Sears stores in which the Company has a licensed department and the stores in which it holds a license to use the Sears name. As of the date of this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from neither the Company or nor any of its Subsidiaries in excess of $300,000 has received any notice from BJ's that it will not renew or (B) aggregate payments to or from will terminate its overall licensing arrangements with the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Merger Agreement (Luxottica Group Spa), Merger Agreement (Cole National Corp /De/)
Material Contracts. (a) Section 3.13(aExcept for contracts reflected as exhibits to its reports and other documents required to be filed under the 1934 Act and the Securities Act of 1933 (the “1933 Act”) of (collectively, the Company “SEC Reports”), including Monroe’s Annual Report on Form 10-K for the year ended December 31, 2009, and Quarterly Report on Form 10-Q for the quarter ended June 30, 2010, or as set forth in the Monroe Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date of this Agreement, the Company neither Monroe nor any of its Subsidiaries, nor any of their respective assets, businesses, or its Subsidiaries operations, is a party to, or by which they are boundis bound or affected by, other than a Company Benefit Planor receives benefits under, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract contract relating to Indebtedness for borrowed the borrowing of money by Monroe or any of the Company or its Subsidiaries or to the placing guarantee by Monroe or any of a Lien its Subsidiaries of any such obligation (other than a Permitted Lien) on any material assets contracts pertaining to fully-secured repurchase agreements, and trade payables, and contracts relating to borrowings or properties guarantees made in the ordinary course of the Company or its Subsidiaries;
business), (ii) any Contract under which contract containing covenants that limit the Company ability of Monroe or its Subsidiaries is lessee any of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person Person, or in to hire or engage the services of any area Person, or that would so limit involve any restriction of the geographic area in which, or purport to limitmethod by which, in any material respect, the operations of Parent Monroe or any of its Affiliates after the Closing, Subsidiaries may carry on its business (Bother than as may be required by Law or any Governmental Authority) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third partiesas each are hereinafter defined), or to solicit any potential employee or customer, in each case, in any material respect or contract that would so limit or purports to limit, in any material respect, Parent requires it or any of its Affiliates after Subsidiaries to deal exclusively or on a “sole source” basis with another party to such contract with respect to the Closing;
subject matter of such contract, (viiii) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarycontract for, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization or other investment inbusiness combination, any Person;
(ix) any Contract required or asset sale or sale of equity securities not in the ordinary course of business consistent with past practice, with respect to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent Monroe or any of its Affiliates after the ClosingSubsidiaries, (iv) is any other contract or may amendment thereto that would be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants be filed as an exhibit to any Person any right SEC Report (as described in Items 601(b)(4) and 601(b)(10) of first refusal, right of first negotiation, option Regulation S-K under the ▇▇▇▇ ▇▇▇) that has not been filed as an exhibit to purchase, option or incorporated by reference in Monroe’s SEC Reports filed prior to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xivv) any Contract with the Company lease of real or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company personal property providing for annual lease payments by or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company Monroe or its Subsidiaries in excess of $300,000 100,000 per annum other than financing leases entered into in the ordinary course of business in which Monroe or any of its Subsidiaries is the lessor, or (Bvi) aggregate payments to any contract that involves expenditures or from the Company receipts of Monroe or any of its Subsidiaries in excess of $1,500,000 over 100,000 per year not entered into in the life ordinary course of business consistent with past practice. The contracts of the agreement andtype described in the preceding sentence, in each case, that is whether or not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof of this Agreement, shall be deemed “Material Contracts” hereunder. With respect to each of Monroe’s Material Contracts (i) that is reflected as an exhibit to any SEC Report, (ii) would be required under Items 601(b)(4) and 601(b)(10) of Regulation S-K under the 1933 Act to be filed as an exhibit to any of its SEC Reports or (iii) that is disclosed in the Monroe Disclosure Schedule, or would be required to be so disclosed if in effect on the date of this Agreement: (A) each such Material Contract is in full force and effect; (B) neither Monroe nor any of its Subsidiaries is in material default thereunder with respect to each Material Contract, as such term or concept is defined in each such Material Contract; (C) neither Monroe nor any of its Subsidiaries has repudiated or waived any material provision of any such Material Contract; and (D) no other than purchase ordersparty to any such Material Contract is, invoicesto Monroe’s knowledge, in material default in any material respect. True copies of all Material Contracts, including all amendments and similar confirmatory or administrative documents supplements thereto, that are ancillary not filed as exhibits to SEC Reports are attached to the main contractual relationship between Monroe Disclosure Schedule.
(b) Neither Monroe nor any of its Subsidiaries have entered into any interest rate swaps, caps, floors, option agreements, futures and forward contracts, or other similar risk management arrangements, whether entered into for Monroe’s own account or for the parties to a particular Contract account of one or group more of Contracts and that, in each case, do not contain any material executory its Subsidiaries or continuing terms, conditions, obligations or rights)their respective customers.
Appears in 2 contracts
Sources: Merger Agreement (Old National Bancorp /In/), Merger Agreement (Monroe Bancorp)
Material Contracts. (a) Section 3.13(a3.10 (a) of the Company Disclosure Schedule contains a listing Schedules lists each of the following Contracts of the Seller and each of its Subsidiaries (such Contracts, together with all Contracts described concerning the occupancy, management or operation of any Real Property listed or otherwise disclosed in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a3.10(a) of the Company Disclosure ScheduleSchedules, the being “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money each agreement of the Company Seller or any of its Subsidiaries involving aggregate consideration in excess of $2,500 or requiring performance by any party more than one year from the date hereof, which, in the latter case, cannot be cancelled by the Seller or its Subsidiaries without penalty or to the placing of a Lien without more than thirty (other than a Permitted Lien30) on any material assets or properties of the Company or its Subsidiariesdays’ notice;
(ii) any Contract under which each agreement that relates to employment, compensation, severance or consulting between the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent Seller or any of its Affiliates after Subsidiaries on the Closingone hand and a current or former (to the extent that any obligations remain outstanding) officer, (B) contains any exclusivitydirector, “most favored nation” manager, employee, Affiliate or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability independent contractor of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent Seller or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xivi) all agreements that relate to the sale of any Contract with of the Company Seller’s or any of its Subsidiaries’ assets, other than in the ordinary course of business, for consideration in excess of $2,500;
(ii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of $2,500;
(iii) all agreements relating to Indebtedness of the Seller or its Subsidiaries, ;
(iv) all agreements between or among the Seller or any of its Subsidiaries on the one hand, hand and any officer, director, manager, stockholder, member of an Affiliate of thereof (other than the Company Seller or its Subsidiaries Subsidiaries) on the other hand;
(v) any agreement (A) granting to the Seller or any of their respective Affiliates its Subsidiaries any right to use, exploit or practice any third party Intellectual Property necessary for or otherwise material to the Business (excluding employee confidentiality other than any license for “shrink-wrap,” “click-through” or other “off-the-shelf” software or for other software that is commercially available to the public generally with annual license, maintenance, support and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments fees of more less than $500,000 per year;
5,000), or (xviB) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of constituting a grant by the Company Seller or any of its Subsidiaries to make any payment third party of any right to use, exploit or incur practice any Liability as a result Intellectual Property;
(vi) all agreements that relate to the ownership of equity securities of any business or enterprise, including equity securities in joint ventures and minority equity investments;
(vii) all franchise, development, royalty, management or other similar agreements;
(viii) all agreements, contracts or understandings containing covenants that in any way purport to restrict the business activity of the consummation of the transactions contemplated by this Agreement, termination of employment Seller or bothits Subsidiaries; and
(xviiix) all collective bargaining agreements or agreements with any other Contract labor organization, union or association to which the performance Seller or any of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticea party.
(ib) Each Material Contract is valid and binding on the Company or Seller and its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, in accordance with its terms and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles equitable principles). None of equity), (ii) the Company Seller or its Subsidiaries andor, to the CompanySeller’s Knowledge, the counterparties any other party thereto are not is in material breach of, of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract and (iii) no Contract. No event or circumstance has occurred that (that, with or without due notice or lapse of time or both) , would constitute an event of default under any Material Contract or result in a material breach of, termination thereof or default under, would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract by the Company or its Subsidiaries or(including all modifications, to the Company’s Knowledge, the counterparties thereto. The Company has amendments and supplements thereto and waivers thereunder) have been made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Buyer.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (CLS Holdings USA, Inc.)
Material Contracts. (a) Section 3.13(a) There have been made available to Parent, its Affiliates and their representatives true and complete copies of all of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below following contracts to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts of them is bound as are required to be set forth on Section 3.13(a) of the Company Disclosure Scheduledate hereof (collectively, the “Company Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) contracts with any Contract relating to Indebtedness for borrowed money current or, if still in effect, former officer or director of the Company or its Subsidiaries or to the placing any of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) contracts for the sale of any Contract under which of the assets material to the Company or and its Subsidiaries is lessee of or holds or operatesSubsidiaries, in each casetaken as a whole, any tangible property (other than real property)in the ordinary course of business or for the grant to any person, owned by other than in the ordinary course of business, of any preferential rights to purchase any assets material to the Company and its Subscribers, taken as a whole, other Person, except for any lease or agreement under which than in the aggregate annual rental payments do not exceed $500,000ordinary course of business;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom contracts containing covenants of the Company or any of its Subsidiaries not to engage or compete in any line of business or with any Person in any geographical area;
(iv) material indentures, credit agreements, mortgages, promissory notes, and other contracts relating to the borrowing of money other than in the ordinary course of business; and
(v) each contract that would be required to be filed as an exhibit to a registration statement on Form S-1 under the Securities Act or an annual report on Form 10-K under the Exchange Act as a material contract if such registration statement or report was filed by the Company with the SEC on the date of this Agreement.
(b) Except as set forth in the Company SEC Reports filed prior to the date hereof or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability Section 2.20 of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business Disclosure Letter or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toas would not reasonably be expected to have a Material Adverse Effect on the Company, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 all of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is Contracts are in full force and effect and enforceable in accordance with its terms against are the legal, valid and binding obligation of the Company or its Subsidiaries andSubsidiary, to the Company’s Knowledgeas applicable, the counterparties thereto (enforceable against such party in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other and similar Laws affecting generally the enforcement of creditors’ rights and subject remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), (ii) . Except as set forth in the Company SEC Reports filed prior to the date hereof or its Subsidiaries andin Section 2.20 of the Company Disclosure Letter, neither the Company nor any Subsidiary is in default under any Company Material Contract nor, to the knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, is any other party to any Company Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatthereunder except, in each case, do for those defaults that, individually or in the aggregate, would not contain reasonably be expected to have a Material Adverse Effect on the Company.
(c) Neither the Company nor any material executory of its Subsidiaries has any contract, agreement or continuing termsrelationship with the U.S. government or any agency or department thereof which has required the Company, conditionsits Subsidiaries or any of their respective personnel to obtain a defense or security clearance or make any security related certifications in connection therewith. Neither the Company, obligations any of its Subsidiaries nor any of their respective personnel has been required or rights)requested to obtain any such clearance or make any such certifications by virtue of or in connection with its contract, agreement or relationship with any original equipment manufacturer, value added reseller or distributor.
Appears in 2 contracts
Sources: Merger Agreement (Imagistics International Inc), Merger Agreement (Oce N V)
Material Contracts. (a) Section 3.13(a) 3.15 of the Company Parent Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, sets forth as of the date hereof a true and complete list of this Agreementthe following Contracts (other than purchase orders and invoices) to which the Transferred Companies, the Company their respective Subsidiaries or Parent or its Subsidiaries (other than the Transferred Companies or any Subsidiaries thereof) (to the extent applicable to the Business) is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any is bound (the Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth listed on Section 3.13(a) 3.15 of the Company Parent Disclosure Schedule, together with each Contract entered into after the date hereof that would otherwise be required to be listed on Section 3.15 of the Parent Disclosure Schedule, the “Material Contracts”). True, correct and complete copies ):
(1) agreements relating to Debt in an amount in excess of the $500,000;
(2) Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to containing a minimum purchase requirement for Parent or its agents Subsidiaries (other than the Transferred Companies or representativesany Subsidiaries thereof) (but related to the Business) or the Transferred Companies or their respective Subsidiaries to purchase during the 12-month period immediately following, together with all amendments thereto):or pursuant to which Parent or its Subsidiaries (other than the Transferred Companies or any Subsidiaries thereof) (but on behalf of the Business) or the Transferred Companies or their respective Subsidiaries have purchased during the 12-month period immediately preceding, January 28, 2007, in the aggregate, a minimum of $30 million of goods and/or services on an annual basis;
(i3) Contracts containing a minimum supply commitment for Parent or its Subsidiaries (other than the Transferred Companies or any Subsidiaries thereof) (but related to the Business) or the Transferred Companies or their respective Subsidiaries to sell during the 12-month period immediately following, or pursuant to which Parent or its Subsidiaries (other than the Transferred Companies or any Subsidiaries thereof) (but on behalf of the Business) or the Transferred Companies or their respective Subsidiaries have sold during the 12-month period immediately preceding, January 28, 2007, in the aggregate, a minimum of $30 million of goods and/or services on an annual basis;
(4) any Contract containing any future capital expenditure obligations of the Transferred Companies or their respective Subsidiaries (or otherwise relating to the Business) in excess of $5 million;
(5) any joint venture, partnership, limited liability company or other similar agreement involving co-investment between a Transferred Company or its Subsidiaries and a third party;
(6) any Contract relating to Indebtedness for borrowed money the acquisition or disposition of the Company or its Subsidiaries or to the placing any business (whether by merger, sale of a Lien (other than a Permitted Lien) on any material stock, sale of assets or properties of otherwise) under which the Company Transferred Companies or its Subsidiariestheir respective Subsidiaries will have obligations with respect to an “earn out”, contingent purchase price, or similar contingent payment obligation or a material indemnity obligation after the Closing;
(ii7) any Contract under which the Company containing covenants restricting or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, limiting in any material respect, respect the freedom ability of the Company Transferred Companies or its their respective Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)geographic area; and
(xiii) each 8) any collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any a labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium union or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)labor organization.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Home Depot Inc), Purchase and Sale Agreement (HSI IP, Inc.)
Material Contracts. (a) Except as set forth in Section 3.13(a3.01(m) of the Company Aztar Disclosure Schedule contains Letter, neither Aztar nor any of its subsidiaries is a listing party to or bound by, as of the date hereof, any of the following (whether or not in writing), collectively with all exhibits and schedules to such Contracts:
(i) any agreement or series of related agreement providing for the acquisition or disposition of securities of any person or any assets, in each case involving more than $1,000,000 individually or in the aggregate, other than in the ordinary course of business consistent with past practice or in connection with the capital expenditure budgets included in Section 4.01(a)(xi) of the Aztar Disclosure Letter;
(ii) any Contract that imposes payment, cancellation penalties or other obligations in connection with the redevelopment or future operation (other than ordinary course hotel operations) of all or any portion of Aztar’s property, facility or operations in Las Vegas, Nevada (the “Las Vegas Site”);
(iii) any Contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $1,000,000; and
(iv) any Contract that would be required to be filed as an exhibit to an Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (the Contracts described in clauses (i) through – (xiii) below iv), together with all exhibits and schedules to whichsuch Contracts, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, being the “Material Contracts”). True, correct A true and complete copies copy of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have each Material Contract has previously been delivered or made available to Parent Pinnacle. Except as individually or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do has not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do had and would not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based have a material adverse effect on any occurrenceAztar, developmenteach Contract by which Aztar or its subsidiaries is bound is a valid and binding agreement of Aztar or one of its subsidiaries enforceable against Aztar or one of its subsidiaries, activity or event contemplated by such Contract)and, aggregate payments to the knowledge of Aztar, the counterparties thereto in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or from affecting creditors rights generally and to equitable principles (whether considered in a proceeding at law or in equity). Aztar and its subsidiaries are not (and to the Company knowledge of Aztar, no counterparty is) in breach or its Subsidiaries violation of or in excess default in the performance or observance of $1,000,000 over the life any term or provision of, and no event has occurred which, with lapse of the Contract time or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) action by a third party or Aztar, would result in a default under, any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent which Aztar or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” subsidiaries is a party or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or by which any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment them is bound or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (of their property is subject, other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarybreaches, in each case in excess of $200,000;
(viii) any Contract under violations and defaults which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave not had and would not reasonably be expected, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in have a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in adverse effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)on Aztar.
Appears in 2 contracts
Sources: Merger Agreement (Pinnacle Entertainment Inc), Merger Agreement (Pinnacle Entertainment Inc)
Material Contracts. (a) Section 3.13(a) Schedule 4.17 of the Company Disclosure Schedule contains a listing true and complete list of all Contracts described in clauses (iother than purchase orders and invoices) through (xiii) below to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party (a) which is a joint venture, partnership or by other similar agreement involving co-investment with a third party; (b) under which they are boundthe Company or any of its Subsidiaries has created, other than incurred, assumed or guaranteed indebtedness for borrowed money, or any capitalized lease obligation, or any agreement under which it has granted a Lien on any of its assets, tangible or intangible (but with a value in excess of $100,000), or any currency or interest rate swap, collar or hedge agreement; (c) whereby the Company Benefit Planor any of its Subsidiaries has an obligation to make an investment in or loan to any Person in excess of $100,000; (d) that contains a minimum purchase requirement for the Company and its Subsidiaries to purchase during the 12-month period immediately following, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities and its Subsidiaries have purchased during the 12-month period immediately preceding, the Balance Sheet Date, in the aggregate, a minimum of $100,000 of goods and/or services on an annual basis; (such Contracts as are required to be set forth on Section 3.13(ae) of that contains a minimum supply commitment for the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries to sell during the 12-month period immediately following, or pursuant to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or and its Subsidiaries is lessee of or holds or operateshave sold during the 12-month period immediately preceding, the Balance Sheet Date, in each casethe aggregate, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess a minimum of $1,000,000 over the life 100,000 of the Contract or goods and/or services on an annual basis; (Bf) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions covenants restricting or purporting to restrict limiting the ability of the Company or Company, any of its Subsidiaries to sellor any of their Affiliates (including, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respectwithout limitation, Parent or any of its Affiliates from and after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life consummation of the agreement;
(vii) any Contract requiring the Company Offer or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is to compete in any business or may be required to pay milestones, royalties with any person or other contingent payments based on in any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or geographic area; (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (Cg) that imposes contemplates any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiiiextraordinary transaction(s) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of by the Company or any of its Subsidiaries to make any payment or incur any Liability as a result and/or shares of the consummation Company held by its Affiliates, including letters of intent, confidentiality, non-solicitation and other similar agreements or arrangements; (h) that contains any indemnification rights or obligations, or credit support relating to such indemnification rights or obligations, where the contingent rights or obligations reasonably would be expected to exceed $100,000; (i) to which any agency or department of the transactions contemplated by this Agreement, termination United States federal government is a counterparty; (j) for the lease of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments personal property to or from the Company or its Subsidiaries any Person providing for lease payments in excess of $300,000 or 100,000 per annum; (Bk) aggregate payments to or from that involve the use of Intellectual Property by the Company or and its Subsidiaries and which require annual license or royalty payments in excess of $1,500,000 over the life of the agreement and100,000; or (l) with customers, in each casemanufacturers, that is not terminable by the applicable distributors, dealers, manufacturer’s representatives or sales agents with whom the Company deals which involve (or its Subsidiaries without penalty upon less could reasonably be expected to involve) the receipt or payment, whether contingent or otherwise, by or to the Company of more than thirty (30) days’ $100,000 in fiscal year 2007. The Company has made available to Parent prior written notice.
(i) to the date hereof a true and correct copy of each such Contract. Each Material Contract required to be so listed is valid and binding on the Company or its SubsidiariesSubsidiary, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties thereto, on each counterparty and is in full force and effect effect, and enforceable in accordance with its terms against neither the Company or nor any of its Subsidiaries andSubsidiaries, nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement Knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not any other party thereto, is in material breach of, or default under, any Material Contract such Contract, and (iii) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute such a material breach of, or default under, any Material Contract thereunder by the Company or any of its Subsidiaries Subsidiaries, or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as Knowledge of the date hereof (Company, any other than purchase ordersparty thereto, invoicesexcept for such failures to be valid, binding or in full force and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts effect and such breaches and defaults that, individually or in each casethe aggregate, do have not contain any material executory or continuing terms, conditions, obligations or rights)had and would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Watsco Inc), Merger Agreement (Acr Group Inc)
Material Contracts. (a) Section 3.13(a) As of the date hereof, except for this Agreement and the agreements filed as exhibits to the Company SEC Documents or set forth in the Company Disclosure Schedule, none of the Company Disclosure Schedule contains a listing nor any of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party to or bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including has rights under any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, following Contracts to the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):extent currently in effect:
(i) any employment, contractor or consulting Contract relating to Indebtedness for borrowed money with any executive officer or other employee of the Company earning an annual salary in excess of $200,000 or its Subsidiaries or to member of the placing Company’s Board of a Lien (Directors, other than a Permitted Lien) on any material assets or properties of those that are terminable by the Company or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation to the Company or any of its Subsidiaries, or any collective bargaining agreement or contract with any labor union or other employee organization;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operatesplan, in each caseincluding, without limitation, any tangible property Company Plan or employee agreement, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (other than real propertyeither alone or upon the occurrence of additional or subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of additional or subsequent events), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under Contracts in connection with which or pursuant to which the Company or and its Subsidiaries is lessor of reasonably likely to spend or permits any third party to hold or operatereceive, in each casethe aggregate, any tangible property (more than $200,000 during the current fiscal year or during the next fiscal year, other than real property), owned or controlled by as are entered into the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000ordinary course of business consistent with past practice;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, Contracts pursuant to which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or any of its Subsidiaries in excess has granted a right of $1,000,000 over the life of the Contract first refusal, first negotiation, most favored nation pricing or (B) other Contract with respect to material Company Licensed Intellectual Property (similar terms, preferred pricing, exclusive sales, distribution, marketing or other than any Non-Scheduled Contracts)exclusive rights1;
(v) any Contract that Material partnership or joint venture agreements;
(Avi) limits Contracts for the acquisition, sale or purports to limit, in any lease of material respect, the freedom properties or assets of the Company or its Subsidiaries to engage (by merger, purchase or compete in any line sale of business assets or with any Person stock or in any area or that would so limit or purport to limitotherwise), in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over 200,000 in the life aggregate, other than sales of inventory in the agreementordinary course of business;
(vii) any Contract requiring loan or credit agreements, deeds of trust, mortgages, promissory notes, indentures or other Contracts evidencing or securing indebtedness for borrowed money by the Company or any of its Subsidiaries Subsidiaries, or any Contracts with respect to guarantee the Liabilities of any Person (swap, forward, futures, warrant, option or other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000derivative transaction;
(viii) any Contract under which Contracts providing for, (a) indemnification or guaranty, other than as are entered into in the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advanceordinary course of business, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or guaranty other than as entered into in the aggregate, ordinary course of business or as set forth in an amount in excess of $200,000 or made any capital contribution toclause (b) hereof, or other investment in, (b) any Personguaranty of indebtedness;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which Contracts between the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor unioncurrent or former 5% or greater stockholder, labor organization director, officer or works council representing employees other Affiliate of the Company or any of its SubsidiariesSubsidiaries (or any Affiliate of such Person), on the other hand;
(xivx) any Contract with Contracts that purport to limit, curtail or restrict the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) ability of the Company or any of its Subsidiaries to make compete in any payment material respect in any geographic area or incur line of business, or to acquire, own, operate, sell, transfer, pledge or otherwise dispose of any Liability as a result assets or to hire or solicit for hire for employment of any individual or group;
(xi) Contracts pursuant to which the Company or its Subsidiaries grant to or receive from any person the right to use any Intellectual Property material to the conduct of the consummation Business, other than as relates to generally available commercial or ‘shrinkwrap’ software;
(xii) settlement agreements which contain continuing material obligations of the transactions contemplated Company or any of its Subsidiaries;
(xiii) any Contracts, or groups of Contracts with a Person (or group of affiliated Persons), the termination or breach of which would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(xiv) any Real Property Lease;
(xv) Contracts that would be required to be filed as an exhibit to an Annual Report on Form 10-K if such report were required to be filed by this Agreement, termination the Company with the SEC on the date hereof;
(xvi) confidentiality agreements with the Company that would prohibit the Company from complying with any of employment the terms of Section 6.3(b) or bothSection 6.3(c) if the counterparty to such confidentiality agreement were to make a Superior Proposal or Takeover Proposal (with the name of the counterparty thereof redacted to extent required by the terms of such confidentiality agreement); and
(xvii) commitments and agreements to enter into any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andforegoing (such Contracts, in each case, that is not terminable by and including the applicable the Contracts filed as exhibits to Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s KnowledgeSEC Documents, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any “Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightsContracts”).
Appears in 2 contracts
Sources: Merger Agreement (Plethico Pharmaceuticals Ltd.), Merger Agreement (Nutra Acquisition CO Inc.)
Material Contracts. (a) Section 3.13(a3.10(a) of the Company Disclosure Schedule contains Letter lists each of the following written contracts (the “Contracts”), to which the Company or its Subsidiary is a listing of all Contracts described in clauses party or is otherwise bound:
(i) through each contract that involves payment by or to the Company or any of its Subsidiaries of more than $250,000 per year and has continuing material obligations, rights or interests (xiiiother than (i) below a contract under which the sole continuing obligation is to whichmaintain confidentiality and (ii) contracts relating to the Company’s distribution segment, which do not need to be listed on Section 3.10(a) of the Company Disclosure Letter, unless such contracts involve payments of more than $750,000 per year);
(ii) each contract pursuant to which the Company, any of its Subsidiaries or any other party thereto has material continuing obligations, rights or interests, relating to the research, development, clinical trial, supply, manufacture, marketing or co—promotion of, or collaboration with respect to, any product or product candidate for which the Company or any of its Subsidiaries has an interest, and that involve the payment by the Company or any of its Subsidiaries of more than $250,000 per year;
(iii) each material license pertaining to Company Intellectual Property Rights pursuant to which the Company, its Subsidiary or any other party thereto has material continuing obligations, rights or interests;
(iv) each contract pursuant to which the Company, its Subsidiary or any other party hereto has material continuing obligations, rights or interests involving the payment of royalties or other amounts of more than $250,000 per year calculated based upon the revenues or income of the Company or its Subsidiary or income or revenues related to any product of the Company or its Subsidiary;
(v) all consulting contracts involving consideration in excess of $250,000 per year with consultants to the Company or any of its Subsidiaries;
(vi) all contracts evidencing indebtedness for borrowed money (other than guarantees) in excess of $250,000;
(vii) all leases involving Leased Real Property;
(viii) all contracts with any Governmental Entity that involve the payment by the Company or any of its Subsidiaries of more than $250,000 per year;
(ix) all contracts that limit or purport to limit the ability of the Company or its Subsidiary to compete with any Person or product;
(x) all “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); and
(xii) all other contracts, the absence of which would reasonably be expected to prevent or materially delay consummation of the transactions contemplated by this Agreement or otherwise prevent or materially delay the Company from performing its obligations under this Agreement.
(b) All the contracts that are required to be described in the Company SEC Reports or required to be filed as exhibits thereto have been described or filed as required.
(c) As of the date of this Agreement, each of the Company or its Subsidiaries Contracts is a party or by which they are bound, other than a Company Benefit Plan, valid and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) binding obligation of the Company Disclosure Schedule, (or the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) Subsidiaries of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments party thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledgeknowledge, the counterparties other parties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or and its Subsidiaries and, to the Company’s Knowledgeknowledge, the counterparties other parties thereto (subject to applicable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization, moratorium arrangement or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles of equity), .
(iid) Except as set forth on Section 3.10(d) of the Company or Disclosure Letter, neither the Company nor any of its Subsidiaries andis, nor to the Company’s Knowledgeknowledge is any other party, the counterparties thereto are not in material breach ofbreach, default or default under, any Material Contract violation (and (iii) no event has occurred that (with or without due notice not occurred through the Company’s or lapse any of time its Subsidiaries’ action or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries inaction or, to the Company’s Knowledgeknowledge, through the counterparties thereto. The action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach, default or violation) of any term, condition or provision of any Contract to which the Company has made available to Parent true and complete copies or any of all its Subsidiaries is now a party, or by which any of them or any of their respective properties or assets may be bound, except for breaches, defaults or violations that would not have, either individually or in the aggregate, a Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Andrx Corp /De/), Merger Agreement (Watson Pharmaceuticals Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of Except for this Agreement, the Company Parent Benefit Plans and agreements filed as exhibits to the Parent SEC Documents or to any forms, reports or documents filed with the SEC subsequent to the date hereof, neither Parent nor any of its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating coal supply agreement, coal transportation agreement, power sale, power purchase or offtake agreement or other fuel purchase, sale or transportation agreement that (A) is subject to Indebtedness for borrowed money profit-sharing arrangements where the amount required to be shared with a third party could reasonably be expected to exceed $400 million over the life of the Company transaction, (B) contains “take or pay,” “liquidated damages” or “termination, closeout or liquidation” provisions associated with a transaction with a notional amount of $2 billion or more or (C) creates actual indebtedness of Parent or results in imputed indebtedness to Parent as assigned by Standard & Poor’s or ▇▇▇▇▇’▇ in an amount greater than $400 million (using customary discounting); provided, for the purposes of this Section 5.20(a)(i), any imputed indebtedness amount associated with a physical power transaction entered into by Parent or any of its Subsidiaries or (the “Parent Power Purchaser”) shall be net of expected ISO revenues related to the placing capacity rights and other related energy products assigned to the Parent Power Purchaser in such transaction for the years in which such capacity or other related energy products have been sold prior to the execution of such transaction in a Lien forward ISO capacity auction; provided, however, such netting only shall occur with respect to a power transaction if the transaction (other than a Permitted Lieni) on any material assets or properties specifies the generation unit which will be the source of the Company power, capacity and other related energy products delivered to the Parent Power Purchaser and (ii) assigns the rights to the ISO revenues for such capacity or its Subsidiariesother related energy products in such years to the Parent Power Purchaser;
(ii) any Contract under which imposing any material restriction on the Company right or ability of Parent or any of its Subsidiaries is lessee of or holds or operates, in each case, any tangible property to (other than real property), owned by A) compete with any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits acquire or purports to limit, in any material respect, the freedom dispose of the Company securities of another Person or its Subsidiaries to (C) engage or compete in any line of business or with any Person or in any geographic area or that would so limit contains restrictions on pricing or purport exclusivity or non-solicitation provisions with respect to limitcustomers; or
(iii) any Contract with an aggregate principal amount, or providing for an aggregate obligation, in excess of $200 million (A) evidencing any material respect, the operations credit facility of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life guaranteeing obligations for borrowed money or other obligations of a third party other than any Subsidiary. All Contracts of the agreement;types referred to in clauses (i), (ii) and (iii) in this Section 5.20(a) and any Contract that is a material Contract required to be filed as an exhibit to Parent’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K of the SEC are referred to herein as “Parent Material Contracts.”
(viib) Neither Parent nor any Contract requiring Subsidiary of Parent is in breach of or default under the Company or its Subsidiaries to guarantee the Liabilities terms of any Person (other than the Company Parent Material Contract where such breach or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business ordefault would reasonably be expected to, individually or in the aggregate, in an amount in excess have a material impact on Parent. To the Knowledge of $200,000 or made any capital contribution toParent, or no other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants party to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is in breach of or default under the terms of any Parent Material Contract where such breach or default would reasonably be expected to, individually or in the aggregate, have a material impact on Parent. Except as would not reasonably be expected to, individually or in the aggregate, have a material impact on Parent, each Parent Material Contract is a valid and binding on obligation of Parent or the Company or its Subsidiaries, as applicableSubsidiary of Parent which is party thereto and, to the Company’s KnowledgeKnowledge of Parent, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) the Company or its Subsidiaries and, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as discretion of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain court before which any material executory or continuing terms, conditions, obligations or rights)proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Constellation Energy Group Inc), Merger Agreement (Exelon Corp)
Material Contracts. (a) Section 3.13(a4.16(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, of each of the following types of contracts and agreements to which the Company or its Subsidiaries any Company Subsidiary is a party or by which they are boundbound (including counterparty name, other than a Company Benefit Plandate, and that are not expired or have not been terminated all amendments of a material nature thereto), excluding for this purpose, any employment contract and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities purchase orders submitted by customers (such Contracts contracts and agreements as are required to be set forth on Section 3.13(a4.16(a) of the Company Disclosure Schedule, excluding any Plan listed on Section 4.10(a) of the Company Disclosure Schedule, being the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) all currently effective contracts and agreements with consideration paid or expected to be payable to the Company or any Contract relating to Indebtedness for borrowed money of the Company Subsidiaries of more than $2,500,000 in the aggregate (including, for greater certainty, consideration paid or its Subsidiaries or payable to the placing of a Lien (other than a Permitted Lien) on Company or any material assets or properties of the Company Subsidiaries pursuant to purchase orders or its Subsidiariesmaster terms applicable to such contracts and agreements) over any 12-month period after December 31, 2018;
(ii) any Contract under which all currently effective contracts and agreements with Suppliers to the Company or its any Company Subsidiary, including those relating to the design, development, manufacture or sale of Products of the Company or any Company Subsidiary, under which aggregate expenditures of more than $2,500,000 in the aggregate (including, for greater certainty, expenditures paid or payable to the Company or any of the Company Subsidiaries is lessee of pursuant to purchase orders or holds master terms applicable to such contracts and agreements with Suppliers) have been paid or operatesare expected to be payable by the Company or any Company Subsidiary, in the aggregate, over any 12-month period after December 31, 2018;
(iii) all management contracts and contracts with other consultants, in each case, excluding Plans and any tangible property employment contracts, that are material to the business of the Company and not terminable without further monetary liability on sixty (other than real property), owned by any other Person, 60) days’ or less notice (except for any lease notice or agreement severance to the extent required under which the aggregate annual rental payments do not exceed applicable Law for non-U.S. employees, and where further potential monetary liability is less than $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property250,000), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) all contracts or agreements involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Company Subsidiary or income or revenues related to any Product of the Company or any Company Subsidiary to which the Company or any Company Subsidiary is a party and pursuant to which the Company or any Company Subsidiary has made or is expected to make payments of more than $2,500,000, in the aggregate, over any 12-month period after December 31, 2018;
(Av) joint ventureall contracts and agreements evidencing indebtedness for borrowed money in an amount greater than $2,500,000, profit-sharingand any pledge agreements, security agreements, hypothec or other collateral agreements in which the Company or any Company Subsidiary granted to any person a security interest in or Lien on any property or assets of the Company or any Company Subsidiary that is material to the conduct of the business of the Company and the Company Subsidiaries, and all agreements or instruments guarantying the debts or other obligations of any person;
(vi) all partnership, collaboration, co-promotion, commercialization or research or development Contract, joint venture or similar Contract, in each case, agreements;
(vii) all contracts and agreements with any Governmental Authority to which requires, the Company or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate Company Subsidiary is a party that involve payments to or from by the Company or its any Company Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)2,500,000;
(vviii) any Contract all contracts and agreements that (A) limits limit, or purports purport to limit, in any material respect, the freedom ability of the Company or its Subsidiaries any Company Subsidiary to engage or compete in any line of business or with any Person person or entity or in any geographic area or that would so limit or purport to limitduring any period of time, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Personexcluding customary confidentiality obligations;
(ix) all contracts and agreements that relate to the direct or indirect acquisition or disposition of any Contract required to be disclosed on Section 3.19 securities or business (whether by merger, sale of the Company Disclosure Schedulestock, sale of assets or otherwise);
(x) any Contract with any Person (A) pursuant all contracts and agreements relating to which the a Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual PropertyInterested Party Transaction;
(xi) all contracts and agreements involving any Contract for the disposition resolution or settlement of any portion of the assets actual or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price threatened Action or other contingent dispute which require payment in excess of $2,000,000 or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary impose continuing obligations on the Company or its Subsidiaries (any Company Subsidiary, including injunctive or Parent or any of its Affiliates after the Closing)other non-monetary relief; and
(xiiixii) each collective bargaining agreement or other Contract with all contracts and agreements not otherwise identified pursuant to the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either foregoing if (A) annual payments the violation, breach, or termination thereof would reasonably be expected to or from the have a Company or its Subsidiaries in excess of $300,000 Material Adverse Effect, or (B) aggregate payments such contacts or agreements are otherwise considered material to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable and the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeon a consolidated basis.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, is a legal, valid and enforceable in accordance with its terms against binding obligation of the Company or its the Company Subsidiaries (as applicable) and, to the knowledge of the Company’s Knowledge, the counterparties thereto (other parties thereto, subject to applicable bankruptcythe Remedies Exceptions, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) neither the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not nor any Company Subsidiary is in material breach or violation of, or material default under, any Material Contract and nor has any Material Contract been canceled by the other party; (iiiii) to the Company’s knowledge, no event has occurred that (with or without due notice or lapse of time or both) would result other party is in a material breach or violation of, or material default under, any Material Contract by Contract; and (iii) the Company and the Company Subsidiaries have not received any notice or its Subsidiaries orclaim of any such breach, to the Company’s Knowledge, the counterparties theretoviolation or default under any such Material Contract. The Company has made available to Parent NGA true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents including any amendments thereto that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, material in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)nature.
Appears in 2 contracts
Sources: Business Combination Agreement (Lion Electric Co), Business Combination Agreement (Northern Genesis Acquisition Corp.)
Material Contracts. (a) Section 3.13(a) of Except as set forth in Schedule 4.09 and excluding any Contract that is an Excluded Asset or an Excluded Liability, but including the Company Disclosure Shared Contracts listed on Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below 6.08, with respect to whichthe Business, as of the date of this Agreement, the Company or Agreement neither Seller nor any of its Subsidiaries (including the Purchased Subsidiaries) is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating to Indebtedness providing for borrowed money the performance of services or the Company delivery of goods or materials by Seller or any of its Subsidiaries that requires annual payments to Seller or to the placing any of a Lien (other than a Permitted Lien) on any material assets its Subsidiaries of $100,000 or properties of the Company or its Subsidiariesmore;
(ii) any Contract under which the Company lease of personal property requiring annual rentals of $100,000 or more that cannot be terminated on not more than 60 days’ notice without payment by Seller or and its Subsidiaries is lessee of or holds or operates, any penalty in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed excess of $500,00020,000;
(iii) any Contract under which agreement for the Company purchase of materials, supplies, goods, services, equipment or its Subsidiaries is lessor of or permits any other tangible assets from a third party to hold or operatethat is one of the fifteen (15) largest suppliers (by dollar-value of total purchases) of the Business for (A) the twelve (12)-month period ended December 26, in each case2017 and (B) the six (6)-month period ended June 26, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,0002018;
(iv) any (A) partnership, joint venture, profit-sharingfranchise, partnershiproyalty, collaboration, co-promotion, commercialization management or research or development Contract, or other similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)agreement;
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company Seller or of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that area, in each case which would so limit or purport to limit, in any material respectthe freedom of Buyer after the Initial Closing Date, the operations of Parent North Carolina Closing Date or any of its Affiliates after the ClosingDelaware Closing Date, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingas applicable;
(vi) any Contract requiring any future capital commitment granting to Seller or capital expenditure (or series one of capital expenditures) by the Company or its Subsidiaries any exclusive right to use, exploit or practice, or including any covenant not to ▇▇▇, with respect to any Intellectual Property Right that is material to the Business (other than COTS Licenses and other Contracts entered into in an amount the ordinary course of business); any material Contract under which Seller or any of its Subsidiaries grants to a third party any rights under or with respect to Transferred Business Intellectual Property other than non-exclusive licenses granted in excess the ordinary course of (A) $300,000 annually business; or (B) $1,000,000 over any co-existence agreement or similar Contract that limits in any material respect Seller’s or any of its Subsidiaries’ rights to use or otherwise exploit, enforce or register any material Trademarks included in the life of the agreementTransferred Business Intellectual Property;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of with any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Governmental Authority;
(viii) any employment or consulting Contract under which with any Business Employee that involves aggregate annual payment in excess of $50,000;
(ix) any Contract with any labor union;
(x) any Contract relating to settlement of any material administrative or judicial proceedings within the Company past three (3) years;
(xi) any Contract that results in any Person holding a power of attorney on behalf of Seller or any of its Subsidiaries has(including the Purchased Subsidiaries) and/or the Business; or
(xii) any note, directly mortgage, indenture or indirectly, made other obligation or agreed agreement or other instrument for or relating to make any loan, advanceIndebtedness for borrowed money (including capitalized leases), or assignment any guarantee of payment third party obligations, or any lien securing such Indebtedness or obligations, or any letters of credit, performance bonds or other credit support for the Business that will need to any Person outside of be replaced at the Ordinary Course of Business orInitial Closing.
(b) Except as would not reasonably be expected, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toto have a Material Adverse Effect, (i) each Contract set forth, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
set forth, in Schedule 4.09 (x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closingeach, a “Material Contract”) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or agreement of Seller and/or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties applicable Subsidiaries party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andterms, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other and similar Laws affecting generally the enforcement of creditors’ rights generally and subject subject, as to enforceability, to general principles of equity), (ii) the Company or neither Seller nor any of its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is in material breach of, or material default under, any Material Contract Contract, except where such breach or default would not reasonably be expected to be material to the Business, and (iii) to the knowledge of Seller, no event has occurred that (with or without due notice or lapse other party to a Material Contract is in default of time or both) would result in a material breach ofsuch Material Contract. As of the date of this Agreement, or default under, no party to any Material Contract by has given written, or to the Company knowledge of Seller oral, notice to Seller or any of its Subsidiaries or, (including the Purchased Subsidiaries) of its intention to the Company’s Knowledge, the counterparties theretocancel or otherwise terminate any such agreement. The Company Seller has delivered or made available to Parent Buyer true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 2 contracts
Sources: Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.), Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.)
Material Contracts. (a) Section 3.13(aThe Disclosure Letter attached hereto lists, and the Company has made available to Purchaser, true and complete copies of all material contracts or other obligations (the "Material Contracts") to which any member of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries Group is a party or by which they are it is bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) those of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):following types:
(i) Employment agreements and any Contract relating other material contracts with or loans to Indebtedness for borrowed money any of the Company Group's shareholders, officers, directors, employees, consultants, distributors or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariessales representatives;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other PersonAny Benefit Plans, except for Benefit Plans maintained by any lease or agreement under which of the aggregate annual rental payments do ESC Foreign Subsidiaries where such Plans maintained by the ESC Foreign Subsidiaries will not exceed $500,000give rise to a Material Adverse Effect on the Company Group;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Any material contracts with customers;
(iv) any (A) joint ventureAny deeds of trust, profit-sharingmortgages, partnershipconditional sales contracts, collaborationsecurity agreements, co-promotionpledge agreements, commercialization or research or development Contracttrust receipts, or similar Contract, in each case, which requires, any other agreements or would reasonably be expected to require (based on arrangements whereby any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from assets of the Company Group are subject to a lien, encumbrance, charge or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)restriction;
(v) any Contract that (A) limits Any loan agreements, letters of credit or purports to limit, in any material respect, the freedom lines of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingcredit;
(vi) Any contracts restricting in a material respect any Contract requiring any future capital commitment or capital expenditure (or series member of capital expenditures) by the Company Group from doing business or its Subsidiaries competing in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementany area;
(vii) Other than purchase orders issued or received in the ordinary course of business, any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case contracts calling for aggregate payments in excess of $200,000100,000 which are not terminable without material cost or liability on notice of 90 days or less;
(viii) any Contract under which the Company Any joint venture, partnership, limited liability company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Personlimited partnership agreement;
(ix) Any guarantees of the obligations of any Contract required to be disclosed on Section 3.19 other party (including other members of the Company Disclosure ScheduleGroup) except those resulting from the endorsement of customer checks deposited for collection;
(x) any Contract with any Person (A) pursuant to Any other contracts which may have a material impact on the Company Group's assets, results of operations or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;financial condition; and
(xi) Any commitment to enter into any Contract for the disposition of any portion of the assets or business foregoing. In the case of each Material Contract, the member of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business Group party thereto has not received notice of any other Person (other than acquisitions default under any such contracts, obligations or dispositions made commitments, and is not in the Ordinary Course of Business)default under any such contracts, obligations or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlementcommitments, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with where such default would have a Governmental Authority or (C) that imposes any material, non-monetary obligations Material Adverse Effect on the Company or its Subsidiaries (or Parent or Group. To the knowledge of the Company, no other party to each Material Contract is in default where such default would have a Material Adverse Effect on the Company Group. Except as set forth in the Disclosure Letter, no consent is required under any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract Material Contracts in connection with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Merger Agreement (Fauth John J), Merger Agreement (Tsi Inc /Mn/)
Material Contracts. (a) Section 3.13(aSchedule 4.18(a) of the Company Disclosure Schedule contains Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forth a listing of all Contracts described in clauses true and complete list (i) through (xiii) below to whichbut excluding any Company Plan), as of the date of entry into this Agreement, of the following contracts to which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):party:
(i) any Contract relating to Indebtedness for borrowed money each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesExchange Act);
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) Document of the Company or any of its Subsidiaries to make any payment that would, on or incur any Liability as a result after the Closing Date, prohibit or restrict the ability of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or Parent or any of their respective Subsidiaries (including the Surviving Corporation and its Subsidiaries) to declare and pay dividends or distributions with respect to their capital stock, pay any Indebtedness for borrowed money, obligations or Liabilities from time to time owed to Parent or any of its Subsidiaries in excess (including the Surviving Corporation and its Subsidiaries), make loans or advances to Parent or any of $300,000 or its Subsidiaries (Bincluding the Surviving Corporation and its Subsidiaries);
(iii) aggregate payments to or from each contract that contains covenants that limit the ability of the Company or any of its Subsidiaries Affiliates to compete in excess of $1,500,000 over the life of the agreement andany business or with any person or in any geographic area or distribution or sales channel, or to sell, supply or distribute any service or product, in each case, that is could reasonably be expected to be material to the business of the Company and its Subsidiaries, taken as a whole;
(iv) each contract that (A) provides for material exclusive rights for the benefit of any third party, (B) grants “most favored nation” status to any third party or (C) requires the Company or any of its Affiliates to provide any minimum level of service, in each case which (1) are, or in a manner which is, material to the Company and its Subsidiaries taken as a whole and (2) may not terminable be terminated (including such restrictive provisions) by the applicable the Company or its Subsidiaries without penalty upon on less than thirty (30) 90 days’ prior written notice.notice without payment by the Company or any of its Subsidiaries of any material penalty;
(iv) Each Material Contract each contract with a remaining term of more than one year from the date hereof that could require the Surviving Corporation or any of its Affiliates to purchase all (or a specified portion of) its total requirements of any product or service from a third party or that contains “take or pay” provisions and which (A) is valid expected to involve the payment of an amount in excess of $25 million in the aggregate during the fiscal year ending December 31, 2024 or any future fiscal year and binding on (B) may not be terminated (including such restrictive provisions) by the Company or its Subsidiaries on less than 90 days’ notice without payment by the Company or any of its Subsidiaries of any material penalty;
(vi) each agreement evidencing any Indebtedness for borrowed money having an outstanding principal amount or outstanding commitments in excess of $25 million;
(vii) any coal supply agreement or purchase order or commitment to sell or offer to sell coal, (A) with a remaining term of more than three years from the later of the commencement of the term of the agreement and the date hereof (or, if the contract is entered into after the date of this Agreement, three years from the later of the commencement of the term of the agreement and the date the contract is entered into), (B) under which the aggregate amounts to be paid by the Company and its Subsidiaries over the remaining term of such agreement, order or commitment would reasonably be expected to exceed $100 million or (C) under which the aggregate amounts to be received by the Company and its Subsidiaries over the remaining term of such agreement, order or commitment would reasonably be expected to exceed $100 million;
(viii) that is a contractual royalty, production payment, net profits, earn-out or similar contract on a material property of such Party that has a value or expected value in excess of $5 million from the date hereof, excluding, however, any of the foregoing payable pursuant to any instrument with respect to Company Real Property;
(ix) each contract relating to the disposition or acquisition by the Company or any of its Subsidiaries of any material business or any material amount of assets (other than in the Ordinary Course) with obligations remaining to be performed or Liabilities continuing after the entry into this Agreement;
(x) each contract involving any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract including commodities, in each case, with a notional amount exceeding $100 million and a term of at least three years from the entry into the instrument or contract, in each case, other than contracts for the purchase and sale of coal, diesel fuel and ANFO (ammonium nitrate and fuel oil) and contracts entered into as a hedging activity in the Ordinary Course consistent with the Company’s past practice and internal policy guidelines;
(xi) any joint venture, partnership or similar organizational contract involving a sharing of profits or losses by the Company or any of its Subsidiaries (or any contract, agreement or understanding involving any joint venture partner or any of its affiliates that relates to the applicable joint venture or the assets thereof) other than any contract entered into in the Ordinary Course which would not reasonably be expected to be material to the Company and its Subsidiaries, taken as applicablea whole; and
(xii) any contract to which the Company or any of its Subsidiaries is party granting to any Person an option, right of first offer or right of first refusal to purchase or acquire any assets of the Company or any of its Subsidiaries (other than any purchase option for additional coal volumes or any contract entered into in the Ordinary Course which would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole).
(b) Collectively, the contracts set forth in Section 4.18(a), whether or not set forth in the Company Disclosure Letter, are referred to in this Agreement as the “Company Contracts.” A complete and correct copy of each of the Company Contracts has been made available to Parent (provided that order forms, purchase orders and statements of work, in each case, that do not contain any restrictive covenants or other material terms need not be made available pursuant to this sentence, but shall nonetheless constitute Company Contracts). Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect effect, subject, as to enforceability, to Creditors’ Rights. Except as has not had and enforceable would not reasonably be expected to have, individually or in accordance with its terms against the aggregate, a Company Material Adverse Effect, neither the Company or nor any of its Subsidiaries andis in breach or default under any Company Contract nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is any other party to any such Company Contract in material breach of, or default underthereunder, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries Subsidiaries, or, to the knowledge of the Company’s Knowledge, the counterparties any other party thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as As of the date hereof (other than purchase ordersentry into this Agreement, invoicesthere are no disputes pending or, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between knowledge of the parties Company, Threatened with respect to a particular any Company Contract and neither the Company nor any of its Subsidiaries has received any notice of the intention of any other party to any Company Contract to terminate for default, convenience or group otherwise any Company Contract, nor to the knowledge of Contracts and thatthe Company, is any such party threatening to do so, in each casecase except as has not had or would not reasonably be expected to have, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Arch Resources, Inc.), Merger Agreement (CONSOL Energy Inc.)
Material Contracts. (a) Section 3.13(a2.15(a) of the Company Disclosure Schedule contains Letter sets forth a listing complete and accurate list of all Contracts described in clauses written or oral contracts, agreements, notes, bonds, indentures, mortgages, pledges, guarantees, options, leases, licenses, sales and purchase orders, warranties, commitments and other instruments of any kind (i) through (xiii) below each a "CONTRACT"), to which, as of the date of this Agreement, which the Company or its Subsidiaries any Subsidiary is a party or by which they are the Company or any Subsidiary, or any of their respective assets and properties, is otherwise bound, other than a Company Benefit Planand which Contract is currently in effect or has future obligations or unfulfilled past or present obligations (or in the case of clause (i) below, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations any Subsidiary was a party or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of by which the Company Disclosure Scheduleor any Subsidiary was bound during the relevant twelve month period), as follows (each a "MATERIAL CONTRACT" and, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
"MATERIAL CONTRACTS"): (i) any each Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) Subsidiary pursuant to which the Company or its Subsidiaries any Subsidiary received (or Parent was entitled to receive) or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries paid (or Parent or any of its Affiliates after the Closing); and
(xiiiwas purportedly obligated to pay) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
200,000 in the twelve (xvi12) any employment or consulting month period ended September 30, 2004 (provided such Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts remains in effect as of the date hereof hereof) and each customer Contract in effect on the date of this Agreement under which the Company or any Subsidiary received in the twelve (12) month period ended September 30, 2004 or is entitled to receive thereafter more than $200,000; (ii) each Contract that requires payment by or to the Company or any Subsidiary after September 30, 2004 of more than $200,000; (iii) each Contract that contains non-competition restrictions, including any restrictions relating to the conduct of the Company's or a Subsidiary's business or the sale of the Company's or any Subsidiary's products or any geographic restrictions, in any case that would prohibit or restrict the Surviving Company or any of its affiliates from conducting the business of the Company or any Subsidiary as presently conducted or that requires any consent or other action by any person for, or will be subject to default, termination, repricing or other renegotiation or cancellation because of, the transactions contemplated hereby; (iv) each Contract relating to the Company's or any Subsidiary's channel sales with distributors; (v) each Contract of the Company or any Subsidiary relating to, and evidences of, indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset); (vi) each partnership, joint venture or other similar Contract or arrangement to which the Company or any Subsidiary is a party or by which it is otherwise bound; (vii) each Contract that requires the Company or any Subsidiary to grant "most favored customer" pricing to any other person; (vii) each fidelity or surety bond or completion bond; (ix) each Contract pursuant to which the Company or any Subsidiary has agreed to provide liquidated damages for failure to meet performance obligations or quality milestones (except to the extent that the amount of such liquidated damages, together with the liquidated damages potentially payable pursuant to any other Contract, do not exceed an aggregate of $200,000); (x) each Contract pursuant to which the Company or any Subsidiary has agreed to provide indemnification or guaranty to a third party (other than purchase ordersthis Agreement and other than an indemnification or guaranty pursuant to the Company's standard form license agreement in the form provided to Parent prior to the date hereof); (xi) each Contract relating to the disposition or acquisition of assets, invoicesproperty or any interest in any business enterprise outside the ordinary course of the Company's or any Subsidiary's business; (xii) each distribution, joint marketing or development Contract and (xiii) each Contract that is otherwise material to the Company and Subsidiaries, taken as a whole.
(b) Each Material Contract is a legal, valid and binding obligation of the Company or the Subsidiary that is a party thereto and, to the Company's knowledge, each other person who is a party thereto, enforceable against the Company or such Subsidiary and, to the Company's knowledge, each such other person in accordance with its terms, and similar confirmatory neither the Company or administrative documents that are ancillary any Subsidiary nor, to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatCompany's knowledge, any other party thereto is in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Cadence Design Systems Inc), Merger Agreement (Cadence Design Systems Inc)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans or as filed with the Filed SEC Reports in unredacted form with any material omitted schedules Made Available to Parent, Section 3.13(a3.12(a) of the Company Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses true and complete list (i) through (xiii) below to whichexcluding any purchase orders or sales orders), as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities Made Available to Parent true and complete copies, of the following:
(such Contracts as are i) each Company Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Company Contract involving a material joint venture, strategic alliance, partnership, sharing of profits or revenue or similar Contract establishing any material research and development collaboration, except for such Contracts entered into in the ordinary course of business;
(iii) each Company Contract for any capital commitment, capital loan or capital expenditure over the remaining life of such Company Contract in excess of $3,500,000 that is not included in the Company’s capital expenditure budget set forth on in Section 3.13(a3.12(a)(iii) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Letter;
(iv) each Company Contract entered into at any time since January 1, 2022: (A) joint venturegoverning the disposition or acquisition by any Acquired Company of any business, profit-sharingproduct line or other assets outside the ordinary course of business (whether by merger, partnershipsale or purchase of assets, collaboration, co-promotion, commercialization sale or research purchase of stock or development Contract, equity ownership interests or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries otherwise) for consideration in excess of $1,000,000 over the life of the Contract 3,000,000 or (B) other Contract with respect pursuant to material which any Acquired Company Licensed Intellectual Property will acquire any interest, or will make an investment (other than short-term investments including money market funds, bank deposits, commercial paper and other money market instruments as disclosed in the Company Balance Sheet or the notes thereto, or incurred in the ordinary course of business since the date of the Company Balance Sheet) for consideration in excess of $3,000,000 in any Non-Scheduled Contractsother Person (other than another Acquired Company);
(v) each Company Contract governing the disposition or acquisition by any Acquired Company of any material business, material product line or other material assets or equity securities (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) with material remaining guarantee, “earn out”, or similar contingent payment or obligations on the part of any Acquired Company;
(vi) each Company Contract that by its terms (A) limits or purports to limit, in the ability of any material respect, the freedom of the Acquired Company or its Subsidiaries to engage or compete in any line of business or compete with any other Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, geographic area; (B) grants material exclusive rights in favor of any third party, including material exclusive rights to market, sell or deliver any Company Product; (C) contains any exclusivity, material “most favored nation” or similar provisions, obligations or restrictions material provision in favor of the counterparty for a Company Product; or (CD) contains a right of first refusal, first offer or first negotiation or any other provisions restricting or purporting similar right with respect to restrict the ability of the Company or its Subsidiaries to sellany material asset owned by an Acquired Company, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customerexcept, in each case, in for any material respect or such Contract that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) may be cancelled without penalty by the Company Acquired upon notice of sixty (60) days or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementless;
(vii) any each Company Contract requiring for the Company marketing, sale, licensing or its Subsidiaries to guarantee the Liabilities distribution of any Person Company Product under which payments in excess of $5,000,000 were made to the Acquired Companies, as a whole, in the fiscal year ended December 31, 2023, or are reasonably expected to be made to the Acquired Companies in the fiscal year ended December 31, 2024;
(other than viii) each Company Contract for the purchase, sale or lease of goods or services (including contract manufacturing), materials, supplies or equipment, under which payments in excess of $5,000,000 were made by the Acquired Companies, as a whole, in the fiscal year ended December 31, 2023, or are reasonably expected to be made by the Acquired Companies in the fiscal year ended December 31, 2024;
(ix) each Company or a Subsidiary) or Contract pursuant to which any Person an Acquired Company has continuing obligations or interests involving (other than A) milestone or similar payments, including upon the Company achievement of regulatory or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarycommercial milestones, in each case in excess of $200,0003,000,000 of future payments in the aggregate, or (B) payment of royalties or other amounts calculated based upon any revenues or income of any Acquired Company, in each case in excess of $3,000,000 of future payments in the aggregate;
(viiix) each settlement, conciliation or similar Company Contract arising out of a Legal Proceeding or threatened Legal Proceeding: (A) that materially restricts or imposes any material obligation on any Acquired Company or materially disrupts the business of any of the Acquired Companies as currently conducted or (B) that would require any of the Acquired Companies to pay consideration valued at more than $2,500,000 in the aggregate following the date of this Agreement;
(xi) any Company Contract (A) pursuant to which an Acquired Company grants a third party a license, covenant not to sue or other similar right under any material Company IP, other than non-exclusive licenses granted to customers, distributors, resellers, or Acquired Company service providers in the ordinary course of business, (B) pursuant to which a third party grants an Acquired Company a license, covenant not to sue or other similar right under Intellectual Property Rights material to the Acquired Companies’ businesses, taken as a whole, other than non-exclusive licenses of generally commercially available Intellectual Property Rights (including for off-the-shelf software), or (C) pursuant to which any Intellectual Property Rights material to the business of the Acquired Companies, taken as a whole, have been developed on behalf of the Acquired Companies, other than by (1) employees or (2) contractors who assigned all of their right, title and interest in and to such Intellectual Property Rights to one or more of the Acquired Companies;
(xii) each Company Contract with any Governmental Entity reasonably expected to involve payments to the Company exceeding $2,500,000 during the twelve (12) months ended December 31, 2024;
(xiii) each Company Contract that is a collective bargaining agreement or other Contract with any labor union, labor or trade organization, works council or other employee representative body;
(xiv) each material stockholders’, investors rights’, registration rights or similar Contract to which the Company or its any Subsidiary of the Company is a party (other than the organizational documents of wholly owned Subsidiaries hasof the Company);
(xv) each Contract with or binding upon the Company, directly any Subsidiary of the Company or indirectlyany of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xvi) each hedging, made derivative or agreed similar Contract (including interest rate, currency or commodity swap agreements, cap agreements, collar agreements and any similar Contract designed to make protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices);
(xvii) any loan, advance, or assignment Company Contract relating to (A) a financial guaranty of payment to any Person outside by any Acquired Company or (B) the incurrence of indebtedness of the Ordinary Course Acquired Companies for borrowed money, in each case, in excess of Business or$5,000,000 (whether outstanding or as may be incurred thereunder) (other than any such indebtedness owed to (and any financial guaranty of indebtedness by an Acquired Company in favor of) another Acquired Company); and
(xviii) the Leases. Each Contract of the type described in this Section 3.12(a) is referred to herein as a “Material Contract.”
(b) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, in an amount in excess a Company Material Adverse Effect, as of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and is valid, binding and enforceable in accordance with its terms against each Acquired Company which is a party thereto, subject to the Company Enforceability Exceptions and assuming the validity, binding nature and enforceability against the counterparty or its Subsidiaries counterparties thereto and, to the Knowledge of the Company’s Knowledge, each other party thereto. As of the counterparties thereto (subject date of this Agreement, except as has not had, and would not reasonably be expected to applicable bankruptcyhave, insolvencyindividually or in the aggregate, reorganizationa Company Material Adverse Effect, moratorium or other Laws affecting generally none of the enforcement of creditors’ rights and subject to general principles of equity)Acquired Companies, (ii) the Company or its Subsidiaries and, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach ofno other Person, has violated or breached, or committed any default under, any Material Contract under (and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under), any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Contract.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Inari Medical, Inc.)
Material Contracts. (a) All Contracts required to be filed as exhibits to the Ouster SEC Documents have been so filed in a timely manner. Section 3.13(a4.16(a) of the Company Ouster Disclosure Schedule contains sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date hereof, of this Agreementeach of the following Contracts, the Company excluding any Ouster Benefit Plans, to which Ouster or any of its Subsidiaries is a party or by which they Ouster or any of its Subsidiaries or any of their assets or businesses are boundbound (and any amendments, other than a Company Benefit Plan, supplements and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments modifications thereto):
(i) any Contract relating to Indebtedness for borrowed money that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesExchange Act);
(ii) any Contract under which that materially limits the Company ability of Ouster or any of its Subsidiaries is lessee of or holds or operatesaffiliates (including, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which following the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life consummation of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respectTransactions, the freedom of the Surviving Company or and its Subsidiaries affiliates) to engage or compete in any line of business or with any Person or in any area geographic area;
(iii) any Contract required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;
(iv) any Contract or series of related Contracts relating to indebtedness for borrowed money (A) in excess of $2,000,000 or (B) that would so limit or purport to limit, in becomes due and payable as a result of the Transactions;
(v) any material respect, the operations of Parent Contract pursuant to which a third party has licensed or granted any right to Ouster or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after Intellectual Property (the Closing“Ouster In-Licenses”);
(vi) any Contract requiring pursuant to which both Ouster or any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries and a third party have licensed or granted substantially portfolio-wide rights in an amount their respective Patents or other material Intellectual Property to one another (excluding licenses granted in excess the ordinary course of business by a customer to Ouster or any of its Subsidiaries with respect to derivative works, improvements or modifications made by such third party to, or any implementations by such third party of, any product or technology provided to such third party by Ouster or any of its Subsidiaries) (A) $300,000 annually or (B) $1,000,000 over the life of the agreement“Ouster IP Cross-Licenses”);
(vii) any material Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which Ouster or any Person (of its Subsidiaries has granted any third party any rights or licenses, other than Ordinary Course Licenses, with respect to any Ouster Intellectual Property or any material product or technology owned or purported to be owned by Ouster or any of its Subsidiaries (the Company or a Subsidiary) has guaranteed “Ouster Out-Licenses,” and collectively with the Liabilities of a Ouster In-Licenses and Ouster IP Cross-Licenses, the Company or a Subsidiary, in each case in excess of $200,000“Ouster IP Contracts”);
(viii) any Contract under which reasonably expected to result in payments in excess of $2,000,000 in any twelve (12) month period after the Company Closing Date;
(ix) any purchase, sale or supply contract that contains material volume requirements or commitments, exclusive or preferred purchasing, distribution or marketing arrangements for a material period of time, most favored nation status or similar provisions or promotional requirements, other than any such Contracts that are not material to Ouster and its Subsidiaries;
(x) any Ouster Real Property Lease reasonably expected to result in payments in excess of $1,000,000 in any twelve (12) month period after the Closing Date;
(xi) any agreement that grants any right of first refusal or right of first offer or similar right or put, call or similar right or that limits or purports to limit the ability of Ouster or any of its Subsidiaries hasto own, directly operate, sell, transfer, pledge or indirectlyotherwise dispose of any material amount of assets or businesses (in any case, made in excess of $2,000,000);
(xii) any acquisition or agreed divestiture agreement (A) entered into since October 1, 2020, with a purchase price in excess of $5,000,000 or (B) that contains “earn-out” provisions or other contingent payment obligations that could reasonably be expected to make exceed $2,000,000 (including indemnification obligations) that have not been satisfied in full as of the date hereof;
(xiii) any loanagreement that by its terms prohibits or limits the payment of dividends or other distributions by Ouster or any of its Subsidiaries;
(xiv) any Contract for any joint venture, advancepartnership or similar arrangement, or assignment any Contract involving a sharing of payment revenues, profits, losses, costs or liabilities by Ouster with any other Person or any of its Subsidiaries;
(xv) any “single source” supply Contract pursuant to which goods or materials that are material to Ouster or any Person outside of its Subsidiaries are supplied to Ouster or such Subsidiary from an exclusive source; or
(xvi) any Contract with any Governmental Entity.
(b) Ouster has heretofore made available to Velodyne true, correct and complete copies of the Ordinary Course of Business orContracts set forth in Section 4.16(a).
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, in an amount in excess of $200,000 Ouster Material Adverse Effect, (i) all Contracts set forth or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on set forth in Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent4.16(a) of the Company Ouster Disclosure Schedule or any of its Subsidiaries filed or required to make any payment or incur any Liability be filed as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, exhibits to the Company’s KnowledgeOuster SEC Documents (the “Ouster Material Contracts”) are valid, the counterparties thereto, binding and is in full force and effect and are enforceable by Ouster or its applicable Subsidiary in accordance with its terms against the Company or its Subsidiaries andtheir terms, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other except as limited by Laws affecting generally the enforcement of creditors’ rights and subject to generally, by general equitable principles or by the discretion of equity)any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) the Company Ouster, or its Subsidiaries applicable Subsidiary, has performed all obligations required to be performed by it under the Ouster Material Contracts, and it is not (with or without notice or lapse of time, or both) in breach or default thereunder and, to the Company’s KnowledgeKnowledge of Ouster, the counterparties thereto are not in material breach of, or default under, no other party to any Ouster Material Contract and (iii) no event has occurred that is (with or without due notice or lapse of time time, or both) would result in a material breach or default thereunder, (iii) since October 1, 2021, neither Ouster nor any of its Subsidiaries has received written notice of any actual, alleged, possible or potential violation of, or default underfailure to comply with, any term or requirement of any Ouster Material Contract by the Company or Contract, and (iv) neither Ouster nor any of its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as received any written notice of the date hereof (other than purchase ordersintention of any party to cancel, invoicesterminate, and similar confirmatory materially change the scope of rights under or administrative documents that are ancillary fail to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain renew any material executory or continuing terms, conditions, obligations or rights)Ouster Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Ouster, Inc.), Merger Agreement (Velodyne Lidar, Inc.)
Material Contracts. (a) Except for this Agreement and for the Contracts disclosed in the Filed Company SEC Documents, Section 3.13(a4.14(a) of the Company Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, and the Company or its Subsidiaries is has made available to Parent true and complete copies, of:
(i) each Contract that would be required to be filed by the Company as a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Contract to which the Company has with no material outstanding or executory obligations or Liabilities any Company Subsidiary is a party that (such Contracts as are required to be set forth on Section 3.13(aA) restricts the ability of the Company Disclosure Scheduleor any Company Subsidiary to compete in any business or with any Person in any geographical area, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a(B) of requires the Company Disclosure Schedule have previously been made available or any Company Subsidiary to Parent conduct any business on a “most favored nations” basis with any third party (C) provides for “exclusivity” or its agents any similar requirement in favor of any third party or representatives(D) provides preferential rights or rights of first or last offer or refusal to any third party, together with all amendments thereto):except in the case of each of clauses (A), (B), (C) and (D) for such restrictions, requirements and provisions that are not material to the Company and the Company Subsidiaries, taken as a whole;
(iiii) each Contract under which the Company or any Company Subsidiary licenses or sublicenses Intellectual Property from or to any third party (other than generally commercially available, off-the-shelf software programs), except for such licenses and sublicenses that are not material to the Company and the Company Subsidiaries, taken as a whole;
(iv) each Contract to which the Company or any Company Subsidiary is a party that provides for any payment, receipt or expenditure in excess of $250,000 in any twelve (12) month period;
(v) each Contract that constitutes a commitment relating to Indebtedness for borrowed money or the deferred purchase price of property by the Company or its Subsidiaries any Company Subsidiary (whether incurred, assumed, guaranteed or to the placing secured by any asset) in excess of a Lien ($250,000, other than a Permitted Lien) on any material assets Contracts solely between or properties of among the Company or its Subsidiariesand/or any Company Subsidiary;
(iivi) any each Contract under which the Company or its Subsidiaries any Company Subsidiary is lessee of the landlord, sublandlord, tenant, subtenant or holds occupant with respect to any material real property leased, subleased, licensed or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000otherwise occupied;
(iiivii) each Contract for any Contract under which Derivative Transaction;
(viii) each material partnership, joint venture or limited liability company agreement, other than any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or its Subsidiaries is lessor of any Company Subsidiary;
(ix) each joint development agreement, exploration agreement, participation, farmout, farm-in or permits any third party to hold program agreement or operate, in each case, any tangible property (other than real property), owned or controlled by similar Contract requiring the Company or its Subsidiaries, except for any lease or agreement under which Subsidiary to make expenditures that would reasonably be expected to be in excess of $250,000 in the aggregate annual rental payments do not exceed $200,000during the twelve (12) month period following the date of this Agreement, other than customary joint operating agreements and continuous development obligations under leases relating to any of the Oil and Gas Properties of the Company or any Company Subsidiary;
(ivx) each Contract that provides for a “take-or-pay” clause or any similar prepayment obligation, acreage dedication, minimum volume commitments or capacity reservation fees to a gathering transportation or other arrangement downstream of the wellhead, that cover, guaranty or commit volumes of Hydrocarbons of the Company or any Company Subsidiary;
(Axi) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, Contract that would or would reasonably be expected to require (based on any occurrenceprevent, development, activity materially delay or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of materially impede the consummation of the transactions contemplated by this AgreementAgreement or that, termination upon the consummation of employment the Merger, would (either alone or bothupon the occurrence of any additional acts or events, including the passage of time) result in any payment or benefit (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any right to any payment or benefits, from Parent, Merger Sub, the Company or any of their respective Subsidiaries to any officer, director, consultant or employee of any of the foregoing; and
(xviixii) any other each Contract the performance of which requires either (A) annual payments to with or from binding upon the Company or its Subsidiaries in excess any Company Subsidiary or any of $300,000 their respective properties or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life assets that is of the agreement and, type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act. Each such Contract described in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
clauses (i) Each Material Contract through (xii) above is valid referred to herein as a “Company Specified Contract.”
(b) As of the date of this Agreement, each of the Company Specified Contracts is valid, binding and binding enforceable on the Company or its the Company Subsidiaries, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect (i) except for such failures to be valid, binding or enforceable or to be in full force and enforceable effect as would not reasonably be expected to, individually or in accordance with its terms against the aggregate, have a Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto Material Adverse Effect and (subject to applicable ii) except insofar as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws of general applicability relating to or affecting generally the enforcement of creditors’ rights and subject to general rights, or by principles governing the availability of equitable remedies, whether considered in a Proceeding at law or in equity). As of the date of this Agreement, (ii) there is no default under any Company Specified Contract by the Company or its the Company Subsidiaries andor, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract other party thereto, and (iii) no event has occurred that (with or without due notice or lapse of time time, or both) would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries any Company Subsidiary or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as Knowledge of the date hereof (Company, any other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatparty thereto, in each casecase except as would not reasonably be expected to, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Sandridge Energy Inc), Merger Agreement (Bonanza Creek Energy, Inc.)
Material Contracts. (a) Section 3.13(a3.15(a) of the Company Seller Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, sets forth as of the date of this AgreementAgreement a list of the following Contracts (other than Benefit Plans, purchase orders and invoices) to which any of the Company Transferred Entities or its Subsidiaries other applicable Affiliate of Seller is a party or by which they any of their respective properties or assets are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant in each case with respect to which the Company has with no material outstanding or executory obligations or Liabilities Business (such Contracts as are required to be set forth and including purchase orders and invoices whether or not listed on Section 3.13(a3.15(a) of the Company Seller Disclosure Schedule, the “Business Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company each power purchase agreement, sale or its Subsidiaries exchange agreement or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariessimilar bilateral Contract;
(ii) any Contract under which the Company each electricity interconnection, transmission or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000marketing agreement;
(iii) any Contract under which the Company each (A) engineering, procurement and construction agreement, (B) equipment supply or its Subsidiaries is lessor of or permits any third party to hold or operateservice agreement, (C) warranty agreement and performance guarantee agreement and (D) operation and maintenance agreement, in each case, case (x) that obligates any tangible property Transferred Entity to make payments in excess of $2,000,000 in any calendar year and (y) other than real property), owned any such agreement that has expired or controlled by the Company or otherwise been terminated in accordance with its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000terms;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization Contract committing the Business or research any Transferred Entity to any future capital expenditures or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries capital investments in excess of $1,000,000 during any calendar year or $8,000,000 over the life term of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)such Contract;
(v) the Real Property Leases;
(vi) any Contract that by its express terms (A) materially limits or purports to limit, in any material respect, materially impairs the freedom ability of the Company or its Subsidiaries Transferred Entities to engage or compete in any line of business or with any Person or in any geographic area or that would so limit otherwise carry out their business (including through non-compete, exclusivity or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing“most-favored nation” provisions), (B) contains any exclusivity, “most favored nation” rights of first offer or refusal or similar provisions, obligations or restrictions rights binding on any Transferred Entity or (C) contains obligates any other provisions restricting Transferred Entity to make a minimum amount of purchases of goods or purporting services or obligates any Transferred Entity or the Business to restrict the ability maintain a minimum amount of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryinventory, in each case in excess of $200,0002,000,000 during any calendar year or $8,000,000 over the term of such Contract;
(vii) any Contract evidencing Indebtedness for borrowed money of any Transferred Entity (whether or not incurred, assumed, guaranteed or secured by any asset of any Transferred Entity), other than any Indebtedness for borrowed money to the extent owing from any of the Transferred Entities to any of the other Transferred Entities;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make with a Governmental Entity (other than any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or such Contract that is entered into in the aggregate, in an amount in excess ordinary course of $200,000 or made any capital contribution to, or other investment in, any Personbusiness and is not material);
(ix) each Contract pursuant to which (A) Seller or any Contract required of its Affiliates, including any Transferred Entity, provides or posts any guarantee, indemnity (other than standard indemnity agreements entered into in the ordinary course of business), performance or surety bond, letter of credit, commitments or other similar credit support arrangement or obligation relating to be disclosed on Section 3.19 the Business or a Transferred Entity (collectively, the “Seller Guarantees”) or (B) any third party (for clarity, not including Seller or any of its Affiliates) provides or posts any guarantee, indemnity (other than standard indemnity agreements entered into in the Company Disclosure Scheduleordinary course of business), performance or surety bond, letter of credit, commitments or other similar credit support arrangement or obligation relating to the Business or a Transferred Entity;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar each Contract (A) requiring monetary payments by between any member of the Company or its Subsidiaries after Seller Group (other than the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the ClosingTransferred Entities); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its SubsidiariesTransferred Entity, on the other hand;
hand and (xivB) each Contract between any Contract with the Company or its SubsidiariesTransferred Entity, on the one hand, and any officer, director, manager, stockholder, member director or officer of an such Transferred Entity (or any Affiliate of the Company any such director or its Subsidiaries or officer (other than any of their respective Affiliates the Transferred Entities), on the other hand, other than (excluding employee confidentiality for (A) and invention assignment agreements(B) any such Contract that will be fully performed by, or will not otherwise survive, the Closing);
(xi) any Contract, other than as set forth in clauses (a)(i) through (xix), which is necessary for the physical delivery of natural gas to the Facilities;
(xii) any Commingled Contract;
(xiii) any joint venture, partnership, strategic alliance, profit sharing, limited liability company agreement, co-development Contract or Contract relating to any equity interests or incentive equity documentsother securities of a Transferred Entity or rights in connection therewith;
(xiv) any Contract that relates to the acquisition or disposition of any business, Company Organizational DocumentsEquity Interests or assets of any other Person (whether by merger, employment agreementssale of Equity Interests, indemnification agreements, and offer letters for at-will employment)sale of assets or otherwise) pursuant to which a Transferred Entity has material outstanding obligations;
(xv) any employment, consulting, bonus, commissions Contract pursuant to which any Transferred Entity licenses to or from another Person any Intellectual Property (other compensation Contract than “shrink wrap” and similar generally available commercial end-user licenses to software with an employee or individual consultant or independent contractor, involving aggregate payments annual cost of no more than $500,000 per year100,000 in the aggregate);
(xvi) any employment outstanding futures, swap, collar, put, call, floor, cap, option or consulting other Contract with severanceentered into by a Transferred Entity that is intended to benefit from or reduce or eliminate the risk of fluctuations in interest rates or the price of commodities, change in controlincluding electric power, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company form, including energy, capacity or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andancillary services;
(xvii) any other Contract involving the performance resolution, compromise or settlement of which requires either (A) annual payments to any actual or from the Company or its Subsidiaries threatened claim in excess of an amount greater than $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and1,000,000 payable by any Transferred Entity, in each case, (A) entered into in during the last three (3) years or (B) that is have not terminable by been fully performed or that otherwise imposes any continuing nonmonetary obligations on any Transferred Entity;
(xviii) any Contract that evidences any obligations of any Transferred Entity with respect to the applicable issuance, sale, pledge, voting, repurchase or redemption of any equity interests of any Transferred Entity other than solely among Transferred Entities; and
(xix) any Contract, other than as set forth in the Company foregoing clauses (i) through (x), which expressly provides for future payments to or its Subsidiaries without penalty upon less than thirty from any Transferred Entity (30contingent or otherwise) days’ prior written noticein excess of $2,500,000 during any calendar year or $8,000,000 over the term of such Contract.
(b) Except as would not reasonably be expected to be material to the Business and the Transferred Entities, taken as a whole, (i) Each each Business Material Contract is a legal, valid and binding on obligation of the Company applicable Transferred Entity or its Subsidiariesother applicable Affiliate of Seller party thereto, as applicableand, to the Company’s KnowledgeKnowledge of Seller, the counterparties theretoeach counterparty, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)effect, (ii) none of the Company Transferred Entities or its Subsidiaries andother applicable Affiliate of Seller nor, to the Company’s KnowledgeKnowledge of Seller, the counterparties thereto are not any other party thereto, is in material breach of, or in default under, any such Business Material Contract Contract, and (iii) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute such a material breach of, or default under, thereunder by any Material Contract by the Company such Transferred Entity or its Subsidiaries other applicable Affiliate or, to the Company’s KnowledgeKnowledge of Seller, the counterparties any other party thereto. The Company No party to any Business Material Contract has exercised in writing any termination rights with respect thereto and neither any Transferred Entity nor any other member of the Seller Group have received written notice from any party to any Business Material Contract to the effect that such party will, or has threatened to, terminate, not renew or materially and adversely change the terms, conditions or provisions (including with respect to payment or pricing) with respect to, any Business Material Contract. A true and complete copy of each Business Material Contract (or a written summary of the terms of any oral Business Material Contract), other than purchase orders or invoices, has been made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Purchaser.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Pseg Power LLC), Equity Purchase Agreement (Pseg Power LLC)
Material Contracts. (a) Section 3.13(a3.18(a) of the Company Disclosure Schedule contains a listing set forth an accurate and complete list of all of the following types of Contracts described in clauses (i) through (xiii) below to which, which any Group Company is a party as of the date of this Agreement, the Company or its Subsidiaries is a party or by excluding in each case, Contracts under which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the such Group Company has with no material outstanding rights or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleContracts, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating that would be required to Indebtedness for borrowed money be filed by the Company pursuant to Item 4 of the Company or its Subsidiaries or Instructions to Exhibits of Form 20-F under the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesExchange Act;
(ii) any Contract under which relating to (A) the Company formation, creation, operation, management or its Subsidiaries is lessee control of a partnership, joint venture, limited liability company or holds similar arrangement with any Group Companies making investment in the amount of more than US$5,000,000, (B) strategic cooperation or operatespartnership arrangements, in each caseor (C) other similar agreements outside the ordinary course of business involving a sharing of profits, any tangible property (other than real property)losses, owned costs or liabilities by any other Person, except for any lease or agreement under which Group Company in an amount material to the aggregate annual rental payments do not exceed $500,000Company;
(iii) any Contract under which involving a loan (other than accounts receivable in the ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company or and any of its Subsidiaries is lessor extended in the ordinary course of business), or permits investment in, any third party person other than a Group Company or any Contract relating to hold the making of any such loan, advance or operateinvestment, in each case, any tangible property (other than real property), owned or controlled by case only if material to the Company or its Subsidiaries, except for any lease or agreement under which financial status of the aggregate annual rental payments do not exceed $200,000Company;
(iv) any Contract involving Indebtedness of the Company or any of its Subsidiaries except for any Indebtedness (A) joint ventureas set forth in the consolidated financial statements of the Company and its Subsidiaries (including the notes thereto) included in the Company’s annual report on Form 20-F filed with the SEC on April 23, profit-sharing2021, partnership(B) incurred in the ordinary course of business consistent with past practice as of December 31, collaboration2020, co-promotion, commercialization (C) incurred pursuant to this Agreement or research or development Contractin connection with the Transactions, or similar Contract(D) to the knowledge of the Company, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries not in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)RMB20,000,000;
(v) any Contract that (Aincluding so called take-or-pay or keep-well agreements) limits under which any person (other than the Company or purports to limit, in any material respect, the freedom of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability Subsidiaries in excess of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingRMB10,000,000;
(vi) any Contract requiring granting or evidencing a Lien on any future capital commitment properties or capital expenditure (or series assets of capital expenditures) by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementSubsidiaries, other than a Permitted Encumbrances;
(vii) any financial advisory Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000RMB10,000,000;
(viii) any Contract under for the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of properties or assets of the Company or any of its Subsidiaries that have a fair market value or purchase price of more than RMB100,000,000 (by merger, purchase or sale of assets or stock or otherwise) or pursuant to which the Company or any of its Subsidiaries hashave continuing, directly or indirectlyindemnification, made or agreed to make any loanguarantee, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, “earn-out” or other investment in, any Personcontingent payment obligations;
(ix) any Contract required Contracts relating to be disclosed on Section 3.19 or in connection with any outstanding resolution or settlement of the Company Disclosure Scheduleany actual or threatened litigation, arbitration, claim or other dispute in excess of RMB10,000,000;
(x) any Contract with for the employment of any Person (A) pursuant to which officer, individual employee or other person by the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is Subsidiaries on a full-time or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license consulting basis or any other similar rights with respect to any material Company Product or any material Intellectual Propertyseverance agreements calling for payments in excess of RMB10,000,000 annually;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement competition Contract or other Contract with the Company that purports to limit, curtail or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result restrict in any obligation (absolute or contingent) material respect the ability of the Company or any of its Subsidiaries to make compete in any payment geographic area, industry or incur line of business that is material to the business of the Group Companies taken as a whole;
(xii) any Liability Contract that contains a put, call or similar right outside the ordinary course of business of the Company or pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than US$5,000,000;
(xiii) any Contract (other than Contracts granting Company Options) pursuant to which any other party has the right to terminate such Contract as a result of this Agreement or the consummation of the transactions contemplated Transactions, including the Merger, where (A) such Contract requires any payment in excess of RMB25,000,000 to be made by this Agreementthe Company and/or any of its Subsidiaries or (B) the value of the outstanding receivables due to the Company and/or its Subsidiaries under such Contract is in excess of RMB10,000,000;
(xiv) any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, termination (B) pledging of employment share capital of the Company or both; andany of its Subsidiaries or (C) issuance of guarantee by the Company or any of its Subsidiaries;
(xv) any Contract providing for (A) a license, covenant not to s▇▇ or other right granted by any person under any Intellectual Property to the Company or any of its Subsidiaries, (B) a license, covenant not to s▇▇ or other right granted by the Company or any of its Subsidiaries to any person under any Intellectual Property, other than agreements for off-the-shelf Software, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of Intellectual Property in each case only if material to the Company;
(xvi) any material Contract outside the ordinary course of business of the Company or not on arm’s length terms between the Company or any of its Subsidiaries, on one hand, and any Affiliate or other entity in which any Group Company has a direct or indirect equity interest, or director, or executive officer, or any person beneficially owning five percent (5%) or more of the outstanding Equity Securities of any Group Company or any of their respective Affiliates (other than the Group Companies), or immediate family members or any of the respective Affiliates of such family members, on the other hand;
(xvii) any other Contract with a currently effective “standstill” restriction on any person with respect to the performance Company’s securities; or
(xviii) any Contract which have not been covered by subsections (i) through (xvii) that is outside the ordinary course of which requires either (A) annual payments to or from business and involves consideration of more than RMB10,000,000, in the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 aggregate, over the life remaining term of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticesuch Contract.
(b) Except as would not have a Company Material Adverse Effect, (i) Each each Material Contract is a legal, valid and binding on the Company or its Subsidiariesobligation of a Group Company, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable against the such Group Company in accordance with its terms terms, subject to the Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception, (iii) no Group Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not no counterparty, is or is alleged to be in material breach or violation of, or default under, any Material Contract and Contract; (iiiiv) to the knowledge of the Company, no person intends to terminate or cancel any Material Contract; (v) no event Group Company has occurred that (with or without due notice or lapse received any written claim of time or both) would result in a material breach of, or default under, under any such Material Contract by the Company or its Subsidiaries orand, to the Company’s Knowledgeknowledge, no fact or event exists that would give rise to any claim of default under any Material Contract; and (vi) neither the counterparties theretoexecution of this Agreement nor the consummation of any Transaction shall constitute a material default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of any Group Company under any Material Contract. The Company has furnished or made available to Parent Merger Sub true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Yan Rick), Merger Agreement (51job, Inc.)
Material Contracts. Schedule 2.8 sets forth a list of all of the following contracts and agreements for the Company and the Subsidiaries:
(a) Section 3.13(a) all contracts or leases, and guarantees of contracts or leases, with respect to which the Company Disclosure Schedule contains or any Subsidiary has a listing stated obligation or expected payments of all Contracts described in clauses (i) through (xiii) below to which, as of more than $100,000 within the period from the date of this AgreementAgreement through December 31, the Company or its Subsidiaries is a party or by which they are bound2013, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which purchase orders entered into in the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) ordinary course of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesbusiness;
(iib) any Contract under which contracts relating to Closing Indebtedness, the Company or its Subsidiaries is lessee borrowing of or holds or operatesmoney, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled guaranty by the Company or its Subsidiaries, except any Subsidiary of any obligation for the borrowing of money or any lease or agreement capital lease;
(c) contracts under which the aggregate annual rental amount payable by the Company or any Subsidiary is dependent on the revenue, income or other similar measure of the Company, any Subsidiary or any other Person and the expected payments do not by the Company or such Subsidiary thereunder is expected to exceed $200,000100,000 within the period from the date of this Agreement through December 31, 2013;
(ivd) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or agreements with any Person non-compete, exclusivity or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict provision that restricts the ability of the Company or its Subsidiaries any Subsidiary to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, conduct business in any material respect, Parent or any of its Affiliates after the Closing;
(vie) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary employment agreements that contemplate payments by the Company or its Subsidiaries after the date any Subsidiary in excess of this Agreement, $100,000 per annum (B) with a Governmental Authority or (C) that imposes excluding statutory employment agreements required by any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closingforeign Legal Requirement below $150,000 per annum); and;
(xiiif) each collective bargaining agreement or other Contract contracts with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization union or works council representing association relating to current employees of the Company or its Subsidiariesany Subsidiary, on the other handor collective bargaining agreements;
(xivg) contracts with any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)Company;
(xvh) any employmentmaterial original equipment manufacturer, consultingsupply, bonus, commissions distribution or any other compensation Contract reseller agreements;
(i) material research and development agreements;
(j) contracts with an employee Governmental Authorities or individual consultant or independent contractorstate corporations, involving aggregate a stated obligation or expected payments of more than $500,000 per year100,000;
(xvik) material strategic alliance, partnership or joint venture agreements;
(l) contracts with any employment or consulting Contract Material Customer;
(m) contracts with severance, change any Material Vendor;
(n) contracts providing for consultation services in control, retention or similar arrangements, that will result in any obligation excess of $100,000 per annum;
(absolute or contingento) of material contracts for which the Company or any Subsidiary is the recipient or grantor of its Subsidiaries a license or sublicense (of any tier) of any Intellectual Property, except licenses to make any payment software that is generally commercially available (the “IP Licenses”);
(p) all Leases;
(q) contracts involving the purchase, storage or incur any Liability as a result disposal of the consummation of the transactions contemplated by this Agreement, termination of employment or bothHazardous Substances; and
(xviir) any other Contract contracts involving the government of or performance of in a foreign state against which requires either the United States now has or has maintained within the last five (A5) annual payments to years trade sanctions or from travel restrictions or which the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life United States has listed as a terrorist state. All of the agreement and, in each case, that is not terminable by foregoing contracts are sometimes collectively referred to herein as the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice“Material Contracts.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. ” The Company has made available to Parent true and complete correct copies of all Material Contracts in effect Contracts. The Company or such Subsidiary, as the case may be, and to the knowledge of the date hereof (Company, each other than purchase ordersparty thereto has performed all material obligations required thereunder. Neither the Company nor any of the Subsidiaries is in default in any material respect of any Material Contract. To the knowledge of the Company, invoicesno third party is in default in any material respect of any Material Contract. Except as set forth on Schedule 2.4, neither the execution and similar confirmatory or administrative documents that are ancillary to delivery of this Agreement nor the main contractual relationship between consummation of the parties Transactions will afford any other party to a particular Material Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)the right to terminate such Material Contract.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Gsi Group Inc)
Material Contracts. (a) Section 3.13(aSchedule 3.18(a) of the Company Contributor Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date Execution Date, of this Agreement, the Company or its following to which any of the Contributor Subsidiaries is a party or by which they any of their respective assets are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto)::
(i) any Contract relating to Indebtedness each contract that provides for borrowed money the acquisition, disposition, license, use, distribution, or outsourcing of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets assets, services, rights, or properties with respect to which Contributor reasonably expects that the Contributor Subsidiaries will make annual payments in excess of the Company $10,000,000 or its Subsidiariesaggregate payments in excess of $100,000,000;
(ii) each contract relating to Indebtedness for Borrowed Money or the deferred purchase price of property by any Contract under which of the Company Contributor Subsidiaries (whether incurred, assumed, guaranteed, or its Subsidiaries is lessee of or holds or operatessecured by any asset), in each case, any tangible property (other than real property), owned by any other Person, except for any lease agreements solely between or agreement under which among the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Contributor Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in those involving an amount in excess of (A) $300,000 annually Indebtedness for Borrowed Money or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business ordeferred purchase price, individually or in the aggregate, of no more than $100,000,000;
(iii) any acquisition or divestiture contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, for which any Contributor Subsidiary may be liable;
(iv) each contract for lease of personal property or real property (other than the Contributor Real Property Leases and the Contributor Rights-of-Way) involving payments in excess of $10,000,000 in any calendar year or aggregate payments in excess of $100,000,000 that are not terminable without penalty or other liability to the Contributor Subsidiaries (other than any ongoing obligation pursuant to such contract that is not caused by any such termination) within 60 days;
(v) each contract that is a non-competition contract or other contract that (A) purports to limit in any material respect either the type of business in which the Contributor Subsidiaries may engage or the manner or locations in which any of them may so engage in any business, (B) could require the disposition of any material assets or line of business of the Contributor Subsidiaries, or (C) prohibits or limits the rights of the Contributor Subsidiaries to make, sell, or distribute any products or services, or use, transfer, or distribute, or enforce any of their rights with respect to, any of their material assets;
(vi) each Hydrocarbon purchase and sale, gathering, treating, transportation, processing, compression or similar contracts entered into by any Contributor Subsidiary that (A) (1) if a fee-based contract, provides for aggregate payments to or from such Contributor Subsidiary during any fiscal year in excess of $25,000,000, or (2) if a percentage of proceeds contract, is reasonably anticipated to result in a share of proceeds retained by such Contributor Subsidiary for its own account during any such fiscal year in excess of $25,000,000, or (B) (y) involves the gathering, treating, transportation, processing, compression, purchase, sale, or storage of more than 50 MMcf of gaseous Hydrocarbons per day, or 2,500 barrels of liquid Hydrocarbons per day, or (2) provides for an acreage dedication or similar commitment;
(vii) each contract for any Derivative Transaction;
(viii) each collective bargaining agreement or other labor-related contract with a labor union, works council, or other labor organization;
(ix) any employment contract that (i) requires annualized base salary payments in excess of $150,000, (ii) provides for change in control or transaction bonuses, or (iii) provides for severance in excess of one month of base salary or notice of termination in excess of thirty (30) days;
(x) each material partnership, joint venture, or limited liability company agreement;
(xi) each agreement under which any of the Contributor Subsidiaries has advanced or loaned any amount of money to any of its officers, directors, employees, or consultants, in each case with a principal amount in excess of $150,000;
(xii) any contract not entered into in the ordinary course of business that is a water rights agreement or disposal agreement or relates to the sourcing, transportation, or disposal of water (including brine water and flowback water) that (A) provides for an acreage dedication in excess of 10,000 gross surface acres, or (B) that could reasonably be expected to result in the receipt or payment by any of the Contributor Subsidiaries of an amount in excess of $100,000,000 over the remaining term of such agreement;
(xiii) any contract that provides for a “take-or-pay” clause or any similar prepayment obligation, acreage dedication, minimum volume commitments, area of mutual interest or capacity reservation fees;
(xiv) any contract with any Governmental Entity (other than the Contributor Permits);
(xv) any contract that obligates any of the Contributor Subsidiaries to make any future capital commitment, loan, or expenditure in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year100,000,000;
(xvi) each contract for any employment Contributor Related Party Transaction;
(xvii) each agreement that contains any “most favored nation” or consulting Contract with severancemost favored customer provision, change in controlcall or put option, retention preferential right, or similar arrangementsrights of first or last offer, that will result negotiation, or refusal, other than those contained in any obligation (absolute or contingent) agreement in which such provision is solely for the benefit of the Company or Contributor Subsidiaries, to which any of its the Contributor Subsidiaries is subject, and is material to make any payment or incur any Liability the business of the Contributor Subsidiaries, taken as a result of whole;
(xviii) each contract that constitutes a pipeline interconnect or facility operating agreement;
(xix) any contract whereby the consummation of Contributor Subsidiaries lease capacity (whether firm or interruptible) on a third party pipeline or lease capacity on the transactions contemplated by this Agreement, termination of employment or bothContributor Midstream Facilities to a third-party shipper; and
(xviixx) any other Contract the performance of which contract that requires either (A) annual or entitles any Contributor Subsidiary to make or receive payments to or from the Company or its Subsidiaries in excess of $300,000 10,000,000 or (Bmore annually; provided, however, that Contributor shall have no obligation to list any contract on Schedule 3.18(a) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andContributor Disclosure Letter to which Permian Highway JV is a party, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticebut all such contracts shall otherwise constitute Contributor Contracts for purposes of Section 3.18(b).
(ib) Each Material Contract is valid Collectively, the contracts set forth in Section 3.18(a) (excluding, for the avoidance of doubt, any Contributor Real Property Lease or Contributor Right-of-Way) are herein referred to as the “Contributor Contracts.” A complete and binding on correct copy of each of the Company or its Subsidiaries, as applicable, Contributor Contracts has been made available to the Company. Except as has not had and would not have, individually or in the aggregate, a Contributor Material Adverse Effect, each Contributor Contract is legal, valid, binding, and enforceable in accordance with its terms on the Contributor Subsidiary that is a party thereto and, to Contributor’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, subject, as to enforceability, to Creditors’ Rights. Except as has not had and would not have, individually or in the Companyaggregate, a Contributor Material Adverse Effect, (i) neither Contributor nor any of the Contributor Subsidiaries is in breach or default under any Contributor Contract nor, to Contributor’s Knowledge, the counterparties thereto (subject is any other party to applicable bankruptcyany such Contributor Contract in breach or default thereunder, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries Contributor Subsidiaries, or, to the CompanyContributor’s Knowledge, the counterparties any other party thereto. The Company has made available There are no disputes pending or, to Parent true Contributor’s Knowledge, threatened with respect to any Contributor Contract and complete copies of all Material Contracts in effect as neither Contributor nor any of the date hereof (Contributor Subsidiaries has received any written notice of the intention of any other than purchase ordersparty to any Contributor Contract to terminate for default, invoicesconvenience, and similar confirmatory or administrative documents that are ancillary otherwise any Contributor Contract, nor Contributor’s Knowledge, is any such party threatening to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatdo so, in each casecase except as has not had or would not have, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)a Contributor Material Adverse Effect.
Appears in 2 contracts
Sources: Contribution Agreement (Blackstone Holdings III L.P.), Contribution Agreement (Altus Midstream Co)
Material Contracts. (a) Section 3.13(aSchedule 4.8(a) of the Company Seller Disclosure Schedule contains lists all of the following Contracts to which any Acquired Company is a listing party or to which Seller or any of all its Affiliates is a party that is a Shared Contract or primarily relates to the Business (indicating with an asterisk (*) any such Contracts described to which Seller or any of its Affiliates (other than the Acquired Companies) is a party) and that are in clauses (i) through (xiii) below to which, effect and not entirely fulfilled or performed as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, Agreement (other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Plans) (the Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth listed on Section 3.13(aSchedule 4.8(a) of the Company Seller Disclosure Schedule, collectively, the “Material Contracts”). True; provided that (x) order forms, correct purchase orders, statements of work and complete copies (y) any Contracts of the Contracts type described in Section 4.8(a)(iii), in each case, need not be listed on Section 3.13(aSchedule 4.8(a) of the Company Seller Disclosure Schedule have previously been made available to Parent or its agents or representatives(the Contracts described in clauses (x) and (y), together with all amendments thereto):the “Specified Material Contracts”), but shall otherwise constitute Material Contracts hereunder:
(i) any Contract with a Key Customer;
(ii) any Contract with a Key Supplier;
(iii) Contracts that (A) involve aggregate payments to the Acquired Companies, or aggregate payments by the Acquired Companies, in each case, in excess of $3,000,000 in the prior twelve (12) months or (B) are reasonably expected to involve aggregate payments to the Acquired Companies, or aggregate payments by the Acquired Companies, in each case, in excess of $3,000,000 in any calendar year period;
(iv) any Contract that requires Seller or any of its Subsidiaries (including the Acquired Companies) to deal exclusively with a third party in connection with the sale or purchase of any product or service or geographic area;
(v) any Contract that contains (A) “most favored nation”, first refusal, right of first negotiation, first offer provisions or similar preferential terms or (B) take-or-pay or similar minimum purchase requirements, in each case, in favor of any other Person;
(vi) any Contract that relates to an acquisition, lease or divestiture of the equity, assets or property or business of any Person (whether by merger, sale of stock or other equity, sale of assets or otherwise) (A) with a purchase price in excess of $3,000,000, (B) that is material to the operation of the Business, taken as a whole or (C) that contains covenants, indemnities or other obligations that remain in effect and would reasonably be likely to be material to the Business, taken as a whole;
(vii) any Contract relating to Indebtedness for borrowed money of the Company Acquired Companies or its Subsidiaries or with respect to the placing of a Lien Business;
(viii) any Contract that creates any Encumbrance (other than a any Permitted LienEncumbrance) on upon any Owned Real Property, any Leased Real Property or any material assets or properties asset of the any Acquired Company or its Subsidiariesthe Business;
(iiix) any Contract under which that is a material IP Contract;
(x) any Shared Contract;
(xi) any Government Contract involving aggregate revenue of the Business in excess of $3,000,000 for the twelve (12) month period ended December 31, 2023;
(xii) any Contract that provides for any joint venture, partnership, collaboration or other arrangement involving a sharing of profits or losses of any Acquired Company with any Person;
(xiii) any Contract limiting or restraining (or purporting to limit or restrain) in any material respect Seller or any of its Subsidiaries is lessee (including the Acquired Companies) or the Business from (A) competing with any Person in any market or geographic area or in any business, (B) engaging in any type of business or holds or operates(C) acquiring any entity, in each case, that relates to or affects the Business or any tangible property of the Acquired Companies;
(xiv) any Contract involving a loan (other than real propertytransactions on credit in the ordinary course of business) or advance to (other than advances to any Business Employee extended in the ordinary course of business), owned by or investment in, any other PersonPerson or any Contract relating to the making of any such loan, except for any lease advance or agreement under which the aggregate annual rental payments do not exceed $500,000investment;
(iiixv) any Contract under which the Company involving any actual or its Subsidiaries is lessor of threatened Proceeding or permits any third party to hold other dispute (A)(1) entered into since January 1, 2021 and (2) that has involved or operate, will involve payment in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries an amount in excess of $1,000,000 over the life 250,000 (net of the Contract third-party insurance coverage) or (B) that contains ongoing material obligations, including obligations to pay amounts, individually or in the aggregate, in excess of $500,000 (net of third-party insurance coverage and excluding compliance with confidentiality, non-disparagement, and other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contractssimilar customary provisions);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vixvi) any Contract requiring any future capital commitment or capital expenditure (or series of the capital expenditures) by the Company Seller or any of its Subsidiaries (including the Acquired Companies) in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life respect of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case Business in excess of $200,0003,000,000;
(viiixvii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment that contains obligations with respect to any Person outside contingent payment of any type (including under any purchase price adjustment, earn-out, deferred payment or similar provision) in excess of $3,000,000;
(xviii) any Real Property Lease that is material to the Business;
(xix) any supply or tolling Contract for the supply of raw materials, intermediates or finished goods for which there is no reasonably available alternative source as of the Ordinary Course date of Business orthis Agreement; and
(xx) any Contract that contains any material indemnification or contribution right or obligation, other than any such right or obligation (1) incurred in the ordinary course of business with any customer or supplier, (2) that provides for any type of customary director and officer indemnification arrangement or (3) in respect of Retained Liabilities.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toa Material Adverse Effect, or other investment in, any Person;
(ixi) any Contract required to be disclosed on Section 3.19 each of the Company Disclosure Schedule;
Material Contracts is in full force and effect, (xii) there exists no default or breach under any Contract with such Material Contracts by any Person (A) pursuant to which the Acquired Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company Seller or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableor, to the CompanySeller’s Knowledge, the counterparties theretoany other party to such Material Contracts, and is in full force and effect and enforceable in accordance (iii) there exists no event or circumstance with its terms against the respect to any Acquired Company or Seller or any of its Subsidiaries andor, to the CompanySeller’s Knowledge, the counterparties thereto (subject any other party to applicable bankruptcysuch Material Contracts, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would create a default or breach under any of the Material Contracts or result in a termination right thereof or would cause or permit the acceleration of or other changes of or to any material breach of, right or default under, obligation or the loss of any Material Contract by the Company or its Subsidiaries material benefit thereunder and (iv) there exists no actual or, to the CompanySeller’s Knowledge, the counterparties theretothreatened termination or cancellation of any Material Contract. The Company Seller has made available to Parent true Purchaser a complete and complete copies accurate copy of all each Material Contracts Contract, other than any Specified Material Contract, that is in effect as of the date hereof of this Agreement (other than purchase orderstogether with all legally binding amendments, invoicesmodifications, and similar confirmatory schedules or administrative documents that are ancillary supplements thereto). Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, none of the Acquired Companies or, to the main contractual relationship between extent related to the parties Business, Seller or any of its other Affiliates has received any written or, to a particular Seller’s Knowledge, oral notice under any Material Contract that any counterparty to any Material Contract intends to terminate any such Material Contracts or is repudiating, not renewing, modifying, or accelerating any material obligation under any Material Contract or group of Contracts and that, in each case, that it intends to do not contain so. There have been no material disputes under any material executory or continuing terms, conditions, obligations or rights)Material Contract during the period beginning three (3) years prior to the date hereof.
Appears in 2 contracts
Sources: Transaction Agreement (DOVER Corp), Transaction Agreement (Terex Corp)
Material Contracts. (a) Section 3.13(a3.11(a) of the Company Seller Disclosure Schedule contains sets forth a listing true and complete list of all the following Contracts described in clauses (i) through (xiii) below to which, effect as of the date of this Agreement, Agreement to which either of the Company or its Subsidiaries Acquired Companies is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleContracts, collectively, the “Material Contracts”). True; provided, correct and complete copies of however, that a Contract referenced by more than one description need only be listed once on the Contracts listed on Section 3.13(a) of the Company Seller Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Schedule:
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesevidencing Indebtedness;
(ii) any Contract under pursuant to which either of the Company Acquired Companies (A) has acquired the right to use, or its Subsidiaries is lessee of any license, release, authorization or holds or operates, in each caseother immunity under, any tangible property (Intellectual Property Rights owned by a third party, other than real property)licenses for COTS Software; or (B) has granted to any third party any license to use, owned by or any license, release, authorization or other Personimmunity under, except for any lease Business Intellectual Property Rights, other than non-exclusive rights that an Acquired Company grants to customers with respect to Acquired Company Product units in connection with the distribution or agreement under which sale of such Acquired Company Product units to customers in the aggregate annual rental payments do not exceed $500,000ordinary course of business consistent with past practice;
(iii) any Contract Contracts under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life either of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, Acquired Companies made or agreed to make any loan, advance, or assignment of payment to any Person outside of received payments during the Ordinary Course of Business orprevious 12 months, individually or in the aggregate, in an amount excess of $500,000;
(iv) any agreement for capital expenditures or the acquisition or construction of fixed assets requiring payments by the Acquired Companies, individually or in the aggregate, in excess of $200,000 500,000 during the previous 12 months or made at any capital contribution totime in the future;
(v) any Contract containing a covenant not to compete or that otherwise impairs the ability of the Acquired Companies (or Buyer on behalf of the Acquired Companies) to freely conduct business in any geographic area;
(vi) any Contract that requires an Acquired Company to deal exclusively with any Person with respect to any matter or that provides “most favored nation” pricing or terms to the other party to such Contract or any third party;
(vii) any partnership, joint venture or other investment insimilar agreement or arrangement;
(viii) any agreement relating to the acquisition or disposition of any business (whether by merger, any Personsale of stock, sale of assets or otherwise);
(ix) any lease, sublease or other similar Contract required to be disclosed on Section 3.19 in respect of the Company Disclosure ScheduleReal Property;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any an Affiliate of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;an Acquired Company; and
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business)employment, or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlementcompensation, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementseverance, (B) with a Governmental Authority or (C) that imposes any materialbonus, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement retirement or other Contract with for which the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries Acquired Companies have obligations in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries 100,000 in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeany 12-month period.
(b) Except as set forth in Section 3.11(b) of the Seller Disclosure Schedule, (i) Each each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and each Government Contract is in full force and effect and enforceable in accordance with its terms against constitutes a valid and binding obligation of the respective Acquired Company or its Subsidiaries that is party thereto and, to the Company’s KnowledgeKnowledge of Seller, the counterparties other parties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally except as such enforcement may be limited by the enforcement of creditors’ rights Enforceability Exceptions; and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s KnowledgeKnowledge of Seller, the counterparties thereto are not (A) no party to such Material Contract or Government Contract is in material breach of, or material default under, any of such Material Contract or Government Contract and (iiiB) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute a material breach of, or material default under, any thereunder by the Acquired Companies or would permit the modification or premature termination of such Material Contract or Government Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties any other party thereto. The Company Seller has made available to Parent Buyer true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory together with all amendments or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)modifications thereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (API Technologies Corp.)
Material Contracts. (a) Section 3.13(a4.5(a) of the Company Sellers Disclosure Schedule contains sets forth, as of the date hereof, a listing true, accurate and complete list of every Seller Contract and every other Contract of the Business to which any Company is a party or by which any property of any Company is bound but excluding (x) all Contracts described licenses of Intellectual Property, all of which are addressed by Section 4.6, and (y) all Real Estate Leases, all of which are addressed by Section 4.11, in each case other than purchase orders and invoices and any third-party or intercompany agreements related to Overhead and Shared Services, that:
(i) in the most recent fiscal year of the Main Sellers resulted in, or is reasonably expected by its terms in the future to result in, (a) the payment of more than $10,000,000 per annum in the aggregate or (b) the receipt by the Business of more than $10,000,000 per annum in the aggregate, except any contracts referred to in clauses (i) through (xiiix) below below;
(ii) relates to whichan acquisition, as divestiture, merger or similar transaction of the date Companies that contains representations, covenants, indemnities or other obligations (including indemnification, “earn out” or other contingent obligations), that are still in effect and, individually or in the aggregate, could reasonably be expected to result in payment in excess of this Agreement$10,000,000;
(iii) is an Affiliate Transaction to which one of the Companies is a party;
(iv) evidences, the governs or relates to (a) Indebtedness of any Company or its Subsidiaries (b) any Indebtedness of a Seller that will be an Assumed Liability hereunder at the Closing, in each case having an aggregate outstanding principal amount in excess of $10,000,000;
(v) contains any material obligation secured by a Lien on any material Asset or any material asset of a Company (other than by a Permitted Encumbrance or by any encumbrance that will be released prior to or at Closing);
(vi) after the Closing would materially restrict the Purchaser or an Affiliate of the Purchaser from engaging in any business activity anywhere in the world;
(vii) is a material joint venture Contract;
(viii) is a research and development Contract involving consideration or expenditures in excess of $10,000,000 per annum;
(ix) is a sale, reseller, distribution, systems integration or other Contract for the sale or distribution of Products or Services involving annual revenues in excess of $10,000,000 in the previous fiscal year; or
(x) is a Contract to which any Government Entity is a party or by which they are boundand has a contract value in excess of $10,000,000 per annum, other than a Company Benefit Plan(all the above, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulecollectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(ib) Each To the Knowledge of the Sellers: each Material Contract is valid valid, binding and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance (with its terms against the Company or its Subsidiaries and, respect only to the Company’s KnowledgeMaterial Contracts under Section 4.5(a)(iii), (iv), (vi), (viii) and (ix)), was entered into in the counterparties thereto (Ordinary Course, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws insolvency and similar laws affecting generally the enforcement of creditors’ rights generally and subject to the general principles of equity), (ii) the . Neither any Seller or any Company or its Subsidiaries andnor, to the Company’s Sellers’ Knowledge, the counterparties thereto are not any other party thereto, is in material violation, breach of, of or default underunder a Material Contract, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time time, or both) , would result in constitute a material violation, breach of, of or default under, any under a Material Contract by the any Seller or any Company or its Subsidiaries or, to the Company’s Sellers’ Knowledge, any other Party thereto, except for any breach of any Material Contract included in the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents Assets that are ancillary will be cured prior to the main contractual relationship between Closing in accordance with Section 2.1.7 or of any Material Contract not included in the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Assets.
Appears in 2 contracts
Sources: Asset and Share Sale Agreement (Nortel Networks LTD), Asset and Share Sale Agreement
Material Contracts. (a) Section 3.13(a) The Company Disclosure Schedules set forth a complete and correct list of all agreements of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant following types to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment is a party or incur any Liability may be bound (collectively, the "Material Contracts"): (i) employment, severance, termination, consulting and retirement agreements that are not terminable "at will"; (ii) agreements which involve future payments by the Company of more than $50,000 or which are not cancelable without penalty by the Company in less than 60 days, (iii) royalty and licensing agreements of the Company acting as a result licensor; (iv) agreements with any labor organization or other collective bargaining unit; (v) agreements for the purchase, sale or lease of any real estate; (vi) agreements for the sale of assets material to the operation of the consummation Company's business other than in the ordinary course of business or the grant of any preferential rights to purchase any such material assets; (vii) agreements which contain provisions requiring the Company or any Subsidiary to indemnify any person not entered into in the ordinary course of business consistent with past practice; (viii) joint venture agreements or other agreements involving the sharing of profits; (ix) agreements (including, without limitation, agreements not to compete and exclusivity agreements) that reasonably could be interpreted to impose any restriction on any business operations of the transactions contemplated by this AgreementCompany or the Company Subsidiaries, termination of employment except for agreements containing restrictions that would not have a the Material Adverse Effect on the Company; or both; and
(xviix) any other Contract agreements that are material to the performance conduct of which requires either (A) annual payments to or from the business of the Company or and its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeSubsidiaries.
(ib) Each All the Material Contract is Contracts are valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable on the date hereof (except to the extent they have previously expired in accordance with its terms against their terms) and constitute legal, valid and binding obligations of, and are legally enforceable against, the Company or any of its Subsidiaries andwhich is a party thereto, and to the knowledge of the Company, the other party or respective parties thereto. To the knowledge of the Company, there have been no threatened cancellations thereof and no outstanding disputes thereunder, except such that would not have a the Material Adverse Effect on the Company. Each of the Company and its Subsidiaries has in all material respects performed all the obligations under the Material Contracts required to be performed by the Company and its Subsidiaries to date. The Company is not in default, and to the Company’s Knowledge's knowledge, no party is in default, in any material respect under any of the counterparties thereto Material Contracts, and there has not occurred any event which (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (whether with or without due notice or notice, lapse of time or boththe happening or occurrence of any other event) would result constitute such a default, except for defaults which would not in the aggregate reasonably be expected to have a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoAdverse Effect. The Company has made available to Parent true True and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory have been delivered to Parent or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)made available for inspection.
Appears in 2 contracts
Sources: Merger Agreement (Ns Acquisition Corp), Merger Agreement (National Standard Co)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the The Company has with no material outstanding furnished or executory obligations or Liabilities (such Contracts as are required agreed to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct make available to News Corp. accurate and complete copies of the Material Contracts listed on Section 3.13(a(as defined below) of the Company Disclosure and the Company Subsidiaries, all of which are listed on Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) 3.9. There is not under any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on Material Contracts any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operatesexisting breach, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity default or event contemplated of default by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance nor event that with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute a material breach ofbreach, default or event of default under, any Material Contract by the Company or its any of the Company Subsidiaries orother than breaches, defaults or events of default which would not have a Business Unit Material Adverse Effect; nor does the Company have Knowledge of, and the Company has not received notice of, or made a claim with respect to, any breach or default by any other party thereto. As used herein, the term "Material Contracts" shall mean (i) all contracts and agreements filed, or required to be filed, as exhibits to the Company’s Knowledge's Annual Report on Form 10-K for the year ended December 31, 1996; (ii) all contracts and agreements entered into since December 31, 1996 which would be required to be filed as an exhibit to the counterparties thereto. The Company's Quarterly Report on Form 10-Q for the quarter ending March 31, 1997 or to any Current Report on Form 8-K; (iii) any debt instrument, including, without limitation, any loan agreement, promissory note, security agreement or other evidence of indebtedness, where the Company has made available or any Company Subsidiary is a lender or borrower; (iv) any contract or commitment restricting the Company or any Company Subsidiary from engagement in any line of business; (v) any in-store agreement with a retailer; (vi) any agreement with a manufacturer with a term in excess of twelve months; (vii) any material joint venture agreement; (viii) any agreement providing for contingent consideration; and (ix) any agreement, option, commitment or rights with, to Parent true and complete copies of all Material Contracts or in effect as of any third party to acquire or to sell a material business division or unit after the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)hereof.
Appears in 2 contracts
Sources: Merger Agreement (HMC Acquisition Corp /De/), Merger Agreement (Heritage Media Corp)
Material Contracts. Except for the Existing Senior Secured Debt Documents and the other agreements set forth on Schedule 6.18 as of the Closing Date, there are no (a) Section 3.13(aemployment agreements covering the management of any Obligor, (b) collective bargaining agreements or other similar labor agreements covering any employees of the Company Disclosure Schedule contains a listing of all Contracts described in clauses any Obligor, (ic) through (xiii) below agreements for managerial, consulting or similar services to which, as of the date of this Agreement, the Company or its Subsidiaries which any Obligor is a party or by which they are it is bound, (d) agreements regarding any Obligor, its assets or operations or any investment therein to which any of its equity holders is a party or by which it is bound, (e) real estate leases, Intellectual Property licenses or other lease or license agreements to which any Obligor is a party, either as lessor or lessee, or as licensor or licensee (other than a Company Benefit Planlicenses arising from the purchase of “off the shelf” products), and that are not expired (f) customer, distribution, marketing or have not been terminated and not including any Contracts pursuant supply agreements to which any Obligor is a party, in each case with respect to the Company has with no material outstanding preceding clauses (a) through (e) requiring payment of more than $250,000 in any year, (g) partnership agreements to which any Obligor is a general partner or executory obligations joint venture agreements to which any Obligor is a party, (h) third party billing arrangements to which any Obligor is a party, or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating other agreements or instruments to Indebtedness for borrowed money which any Obligor is a party, and the breach, nonperformance or cancellation of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contractwhich, or similar Contractthe failure of which to renew, in each case, which requires, or would could reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life have a Material Adverse Effect. Each of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, Material Contracts is in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed full force and effect on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, hereof and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, the Transaction Documents will not give rise to a right of termination in favor of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof party (other than purchase ordersany Obligor) to any Material Contract, invoices, and similar confirmatory or administrative documents that are ancillary except for such Material Contracts the noncompliance with which would not reasonably be expected to the main contractual relationship between the parties to have a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Material Adverse Effect.
Appears in 2 contracts
Sources: Note Purchase Agreement (Staffing 360 Solutions, Inc.), Note Purchase Agreement (Staffing 360 Solutions, Inc.)
Material Contracts. (a) Section 3.13(a) of the Disclosure Letter includes the following Contracts to which the Company Disclosure Schedule contains or any of its Subsidiaries is a listing party, or by which the Company or any of all Contracts described its Subsidiaries or the Company’s or any of its Subsidiaries’ assets are bound, in clauses (i) through (xiii) below to whicheach case, as in effect as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):hereof:
(i) each Contract for the employment of any officer, individual employee or other person on a full-time, part-time, consulting or other basis providing annual compensation in excess of $200,000;
(ii) each Contract relating to Indebtedness for borrowed money that constitutes a partnership agreement or joint venture agreement;
(iii) each Contract which: (A) restricts the ability of the Company or any of its Subsidiaries to engage in any line or type of business or from competing with any Person or in any geographical area, or (B) commits the Company or any of its Subsidiaries to an exclusive arrangement or relationship with any Person;
(iv) each Contract which obligates the placing Company or any of a Lien its Subsidiaries to provide for any right of first refusal, right of first offer, preferred pricing (other than a Permitted Lienincluding “most favored nation”) on or similar provisions, performance guarantees, minimum referral volumes, rebates, discounts, or incentive or volume purchase credits;
(v) each Contract with any material assets or properties Governmental Authority;
(vi) each Contract relating to indebtedness of the Company or any of its Subsidiaries;
(iivii) any each lease or other Contract under which the Company or any of its Subsidiaries is lessee of or holds or operates, in each case, operates any tangible property (other than real property), owned by any other Personparty, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,00050,000;
(iiiviii) any each lease or other Contract under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, operate any tangible property (other than real property), owned or controlled by the Company or any of its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,00050,000;
(ivix) any (A) joint ventureeach Contract or group of related Contracts with the same Third Party or group of Affiliates of such Third Party, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, pursuant to which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orSubsidiaries, individually or in the aggregate, in an amount received or agreed to receive, or paid or agreed to pay, in excess of $200,000 or made any capital contribution to1,000,000, or other investment inin cash, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of in the Company Disclosure Schedulefiscal year ended December 31, 2017;
(x) BIN sponsorship agreement, processing agreement or similar or related agreement that provides access to banking systems or enables the Company or any of its Subsidiaries to participate in or provide services under or with respect to any Card Association;
(xi) any Contract with any Person independent sales organizations (A“ISOs”) pursuant to which or sales agents of the Company or its Subsidiaries (or Parent or any of its Affiliates after Subsidiaries (A) under which the Closing) is or may be required to pay milestones, royalties Company and/or any of its Subsidiaries made residual or other contingent payments based to or on behalf of (or otherwise directly or indirectly conveyed value to) such ISO or sales agent, in each case, in excess of $500,000 in the aggregate during the fiscal year ended December 31, 2017 or reasonably expects to incur annual expenses in excess of $500,000 in the aggregate during the fiscal year ending December 31, 2018 or during any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events fiscal year thereafter or (B) under which the Company or any of its Subsidiaries grants made annual payments in excess of $500,000 thereunder in connection with any loan or residual buyout payment to any Person such ISO;
(xii) any right of first refusalcollective bargaining agreement, right of first negotiation, option to purchase, option to license labor Contract or other Contract with any labor union or any employee organization;
(xiii) any agreement not disclosed pursuant to any other similar rights clause of this Section 3.13(a) that would constitute a “material contract” as defined in Item 601(b)(10) of Regulation S-K of the SEC; and
(xiv) any agreement (A) by which the Company or any of its Subsidiaries licenses or permits any other Person to use, or covenants not to ▇▇▇ with respect to the use by such Person of, any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition Property owned by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions non-exclusive software licenses granted by the Company or dispositions made any of its Subsidiaries with respect to such Intellectual Property in the Ordinary Course of Business), ; or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of by which the Company or any of its Subsidiaries licenses or is otherwise granted the right to make any payment or incur any Liability as a result use the Intellectual Property of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract Person, (other than licenses for commercial off-the-shelf software, the performance of total fees associated with which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon are less than thirty (30) days’ prior written notice$50,000).
(ib) Each Except for the Material Contracts that expire by their terms on or prior to the Closing Date, each Material Contract is a valid and binding on obligation of the Company or and its Subsidiaries, as applicable, that is a party thereto and, to the Company’s KnowledgeKnowledge of Sellers, the counterparties of each other party thereto, and and, to the Knowledge of Sellers, is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights Bankruptcy and subject to general principles of equityEquity Exclusion), (ii) and neither the Company or nor any of its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatSubsidiaries, in each case, do that is a party thereto, and to the Knowledge of Sellers, no other party thereto is (with or without the lapse of time or the giving of notice, or both) in material breach or material default thereunder, except for such breaches or defaults as would not contain any material executory reasonably be expected to have, individually or continuing termsin the aggregate, conditions, obligations or rights)a Material Adverse Effect.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a) Copies of each of the following Contracts of the Company Disclosure Schedule contains a listing of all Contracts described and its Subsidiaries (excluding purchase orders entered into in clauses (ithe Ordinary Course) through (xiii) below to which, in effect as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities hereof (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleContracts, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representativesthe Purchaser, together with all amendments thereto):unless otherwise provided below, as set forth in Section 3.17 of the Disclosure Letter:
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of with a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesMajor Customer;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000with a Major Vendor;
(iii) any Contract under that involved the payment of or receipt by the Company or any of its Subsidiaries of an amount in the fiscal year ending February 28, 2017 which equals or exceeds five percent (5%) of the Company’s and its Subsidiaries’ aggregate revenue in the fiscal year ending February 28, 2017, or that is expected to result in the payment of such amount by the Company or its Subsidiaries is lessor of or permits any third party to hold or operatein the fiscal year ending February 28, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,0002018;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization Contract for the employment of any director or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom officer of the Company or its Subsidiaries excluding offer letters substantially consistent with the Company’s or the Target Subsidiaries’ standard form;
(v) all Contracts relating to engage Indebtedness in an amount which equals or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, exceeds five percent (B5%) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or Company’s and its Subsidiaries to sellSubsidiaries’ aggregate revenue in the fiscal year ending February 28, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing2017;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series limiting the freedom of capital expenditures) by the Company or any of its Subsidiaries to engage or participate, or compete with any other Person, in an amount in excess any line of business, market or geographic area, or to make use of any Intellectual Property, or any Contract granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal (A) $300,000 annually other than those related to debt or (B) $1,000,000 over equity), rights of first negotiation or similar rights and/or terms to any Person, or any Contract otherwise limiting the life right of the agreementCompany or any of its Subsidiaries to operate, each of which has been made available to the Purchaser as set forth in Section 3.17 (a)(vi) of the Disclosure Letter;
(vii) all Contracts with any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Governmental Authority;
(viii) any Contract under which the all material Company or its Subsidiaries hasIP Agreements, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of other than (A) non-disclosure agreements entered into in the Ordinary Course of Business or, individually or and (B) licenses to customers granted in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonOrdinary Course;
(ix) any Contract required to be disclosed on Section 3.19 of all Contracts that provide for future indemnification by the Company Disclosure Scheduleor any of its Subsidiaries of any Person or the assumption of any environmental or other liability of any Person, in each case, other than indemnification obligations entered into in the Ordinary Course;
(x) all Contracts entered into during the past twenty-four (24) months that relate to the acquisition or disposition of any Contract with business, a material amount of stock or assets of any other Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any real property (whether by merger, sale of its Affiliates after the Closing) is stock, sale of assets or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertyotherwise);
(xi) any Contract for the disposition of any portion of the assets or business of Contracts to which the Company or any of its Subsidiaries is a party that provide for any joint venture, partnership or for the acquisition similar arrangement by the Company or any of its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationSubsidiaries;
(xii) all collective bargaining agreements or Contracts with any settlement, conciliation or similar Contract (A) requiring monetary payments by union to which the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andSubsidiaries is a party;
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any Person;
(xiv) any Contract entered into since March 1, 2016 in connection with the settlement or resolution of any Actions involving or affecting the Company or any of its Subsidiaries and resulting in any individual payment of $250,000 or incur more;
(xv) any Liability as Contract providing for future capital expenditures by the Company or any of its Subsidiaries in excess of $500,000 individually;
(xvi) any Contract involving Leased Real Property to which the Company or any of its Subsidiaries is a result party for which the annual rent is in excess of $250,000 individually;
(xvii) any Contract for the lease or sublease of personal property providing for annual payments of $250,000 or more;
(xviii) all material Contracts between or among the Company or any of its Subsidiaries, on the one hand, and the Seller Entities or any Affiliate of the Seller Entities (other than the Company and any of its Subsidiaries), on the other hand, other than Contracts described in Section 3.17(a); and
(xix) any Contract with any of officer, director, employee or stockholder of the Seller Entities, Company or any of their Subsidiaries, or any member of their immediate families excluding Plans and agreements related to the Company’s equity that are disclosed in or pursuant to Section 3.03, each of which has been made available to the Purchaser as set forth in Section 3.17(a)(xix) of the Disclosure Letter.
(b) Each Material Contract (i) as of the date of this Agreement, is valid and binding on the Company or the relevant Target Subsidiary, as the case may be, and is in full force and effect; and (ii) subject to any consents required pursuant to Section 3.04 of the Disclosure Letter, upon consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is shall continue in full force and effect and enforceable in accordance with its terms against without penalty or other adverse consequence. As of the date of this Agreement, neither the Company or nor any of its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in to which it is a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)party.
Appears in 1 contract
Material Contracts. (a) Section 3.13(aSchedule 4.10(a) of lists the following Contracts, other than any Company Disclosure Schedule contains Benefit Plan or Real Property Leases, to which a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the DQ Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any it is bound (the Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth listed on Section 3.13(a) of the Company Disclosure ScheduleSchedule 4.10(a), collectively, the “Material Contracts”). True, correct and complete copies ) as of the Contracts listed on Section 3.13(a) date hereof, a copy of the Company Disclosure Schedule have previously each of which has been made available to Parent or its agents or representatives, together with all amendments thereto):Parent:
(i) Contracts for the pending sale of any Contract relating to Indebtedness for borrowed money of the Assets of any DQ Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets the sale of products or properties services in the Ordinary Course of the Company or its SubsidiariesBusiness for consideration in excess of $2,000,000;
(ii) Contracts relating to indebtedness for money, or the making of any Contract under which loans, or the Company or its Subsidiaries is lessee guarantee of or holds or operatesany obligation for borrowed money, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed case involving amounts in excess of $500,0001,000,000;
(iii) any Contract under which Contracts for the Company purchase, rental or its Subsidiaries is lessor use of real property or permits any third party to hold personal property, including equipment, vehicles, and other personal property or operatefixtures, in each case, any tangible property (other case pursuant to which a DQ Company has ongoing or future payment obligations of greater than real property), owned or controlled by the Company or its Subsidiaries$1,000,000annually, except for any lease such Contracts that can be terminated upon 90 days (or agreement under which the aggregate annual rental payments do not exceed $200,000less) written notice;
(iv) any Contracts with the ten (A10) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require largest customers (measured on a Contract basis) of the DQ Companies based on any occurrencethe aggregate revenues generated by the DQ Companies in respect of each such customer during the fiscal year 2020 (each such customer, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contractsa “Top Customer”);
(v) Contracts with the ten largest vendors of the DQ Companies based on the aggregate amounts spent by the DQ Companies in respect of each such vendor during the fiscal year 2020;
(vi) Contracts with material licenses to Intellectual Property and agreements pursuant to which the DQ Companies resolved any Contract litigation or other dispute relating to Intellectual Property pursuant to which the DQ Companies have any material outstanding obligations, excluding non-exclusive licenses to “off the shelf” or commercially available software for which any DQ Company pays less than $500,000 per year and non-exclusive licenses granted to customers in the Ordinary Course of Business;
(vii) joint venture agreements;
(viii) Contracts pursuant to which any DQ Company has agreed to acquire or purchase all or a material portion of a business (whether by merger, asset purchase, purchase of equity securities or any other similar transaction) since January 1, 2019;
(ix) Contracts that grant any (Aa) most favored customer pricing provisions for the benefit of any third party, (b) covenant that expressly limits or purports to limit, in any material respect, respect the freedom of the any DQ Company or its Subsidiaries to engage operate or compete in any line of business or geographic scope or to compete with any Person or in any area or that would so limit or purport to limit, in any material respect, (c) minimum purchase requirement for the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities benefit of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedulethird party;
(x) any Contract with any Person all reinsurance agreements (Athe “Reinsurance Agreements”) pursuant and services agreements that are directly related to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual PropertyReinsurance Agreements;
(xi) Contracts pursuant to which any Contract DQ Company has any material outstanding obligations for the disposition payment of any portion of the assets “earn out” or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent deferred purchase price or other contingent or deferred payment obligationsimilar payment;
(xii) Contracts obligating any settlement, conciliation DQ Company to make any capital expenditures in excess of $1,000,000 in the aggregate or similar Contract $5,000,000 in any 12-month period;
(Axiii) requiring monetary payments by Contracts relating to the Company settlement or its Subsidiaries after the date other resolution of this Agreement, (B) any actual or threatened Action with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any value in excess of its Affiliates after the Closing)$1,000,000; and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with Contracts pursuant to which material Owned Intellectual Property was created for the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeDQ Companies.
(ib) Each Except as set forth on Schedule 4.10(b), each Material Contract is legal, valid and binding on the enforceable against each DQ Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries party thereto and, to the Knowledge of the Company’s Knowledge, the counterparties thereto (any other Person party thereto, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws and similar laws affecting generally the enforcement of creditors’ rights and subject remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). Since the Latest Balance Sheet Date, no DQ Company (iii) the Company is in breach, or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach violation of, or default under and there is no event which has occurred or circumstance that exists which, with or without the lapse of time or the giving of notice or both, would result in a breach, violation of or default under, any such Material Contract and to which it is a party, except for such breaches or defaults that would not, individually or in the aggregate, reasonably be expected to be materially adverse to the DQ Companies, taken as a whole or (iiiii) no event has occurred that (with received any written notice of any default or without due notice or lapse of time or both) would result in a material breach of, or default under, by any DQ Company under any Material Contract by Contract, except for defaults that have been cured or otherwise would not reasonably be expected to be materially adverse to the DQ Companies, taken as a whole.
(c) Except as set forth on Schedule 4.10(c), no DQ Company or its Subsidiaries has received any written or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as Knowledge of the date hereof (other than purchase ordersCompany, invoicesoral notice or indication, and similar confirmatory to the Knowledge of the Company, there are no facts that would reasonably be expected to lead it to believe, that any Top Customer has ceased, or administrative documents intends to cease after the Closing, to purchase its services or products, or to seek to exercise any rights of termination arising under a Material Contract that are ancillary to or may be triggered by this Agreement or the main contractual relationship between the parties to a particular Contract or group of Contracts and that, transactions contemplated hereby. No DQ Company is involved in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)dispute with any of the Top Customers. None of the Top Customers has materially reduced its business with the DQ Companies since the Latest Balance Sheet Date.
Appears in 1 contract
Material Contracts. (a) Section 3.13(aSection 3.21(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue, correct and complete list, as of the date hereof, of each of the following Contracts in effect as of the date hereof to which a Parent Entity is party or is bound and that is Related to the Business or to which a Business Company is a party or is bound, excluding any Benefit Plan or Real Property Lease (each such Contract and any Contract for employment of an employee by the Business Company or the Parent with respect to the Business required to be disclosed under Section 3.14(a) of the Disclosure Schedule, together with each other Contract entered into after the date of this Agreement that would otherwise have been included on Section 3.21 of the Disclosure Schedule if entered into prior to the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating pursuant to Indebtedness for borrowed money of the which any Business Company or its Subsidiaries or any Parent Entity (Related to the placing of Business) has entered into a Lien joint venture, partnership, strategic alliance or other similar arrangement with any third party (other than each, a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries“JV Agreement”);
(ii) any material written Contract under which with a Principal Customer or a Principal Supplier; provided that, solely for the Company or its Subsidiaries is lessee purposes of or holds or operates, in each case, any tangible property (other than real propertythis Section 3.21(a)(ii), owned by Parent shall not be required to list in Section 3.21(a) of the Disclosure Schedule any purchase orders entered into in the ordinary course of business (but for the avoidance of doubt, such purchase orders shall still constitute Material Contracts for any other Personpurpose; provided that, except for any lease or agreement under which with respect to such purchase orders only, the aggregate annual rental payments do not exceed $500,000entirety of Section 3.21(b) shall be deemed to be qualified by the knowledge of Parent);
(iii) any Contract under which that by its terms calls for aggregate payments by or to the Business in excess of $10,000,000 in any fiscal year period; provided that, solely for the purposes of this Section 3.21(a)(iii), Parent shall not be required to list in Section 3.21(a) of the Disclosure Schedule any such Contract that may be canceled by the applicable Business Company or its Subsidiaries is lessor Parent Entity without any material penalty or other liability to the Business Companies or the Business on notice of 90 days or permits any third party to hold or operateless (but, in each casefor the avoidance of doubt, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except such Contracts shall still constitute Material Contracts for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000other purpose);
(iv) any Contract (Aexcluding leases of real property) joint venturegranting to any Person any rights of first refusal, profit-sharing, partnership, collaboration, co-promotion, commercialization first offer or research or development Contract, option or similar Contractpreferential right to purchase or otherwise acquire any interest properties or assets, in each casetangible or intangible, which requires, or would reasonably be expected to require (based on owned by any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Business Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to any material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)Transferred Assets;
(v) any Contract related to the acquisition (whether by merger, consolidation, acquisition of stock or otherwise) or disposition of any interest in any Person or any business, line of business or division thereof, or a material portion of the assets of any Person that has not yet been consummated or that has continuing material obligations;
(Avi) limits any Contract granting to the other party to such Contract or any other Person “most favored nation” status;
(vii) any Contract that provides for “exclusivity” or any similar right in favor of any Person other than any Business Company or any Parent Entity (related to the Business), pursuant to which the Business is restricted in the distribution, marketing or purchasing of its products or services (other than customary sales and marketing restrictions imposed by vendors in supply and distribution agreements);
(viii) any Contract entered into since January 1, 2022 that is a settlement, conciliation or similar agreement with any Governmental Entity under which any Business Company or the Business has outstanding material obligations;
(ix) any Contract that prohibits or restricts, or purports to limitprohibit or restrict, in any material respect, the freedom ability of the Company or its Subsidiaries Business to engage or compete in any line of business or with any Person or in any geographic area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under customers with which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;do business; and
(x) any Contract with containing any Person (A) pursuant “non-solicitation”, “no-hire” or similar restrictive covenant that restricts in any material respect the conduct of the Business and the ability of Buyer to which provide any service, other than those provisions contained in any non-disclosure or confidentiality agreements entered into in the Company ordinary course of business by Parent or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeAffiliates.
(ib) Each Material Contract is valid and binding on the Company Parent or its Subsidiariesapplicable Subsidiary party thereto, as applicableand, to the Company’s Knowledgeknowledge of Parent, the counterparties each other party thereto, and is in full force and effect and enforceable in accordance with its terms against in all material respects, subject to the Company Bankruptcy and Equity Exception, except as would not, individually or in the aggregate, reasonably be expected to be material to the Transferred Companies and the Business, taken as a whole. None of Parent, any of its Subsidiaries andor, to the Company’s Knowledgeknowledge of Parent, any of the counterparties thereto (subject to applicable bankruptcyother parties thereto, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is in material breach violation of, or default under, any provision of any Material Contract, and to the knowledge of Parent, no party to any Material Contract has committed or failed to perform any act under and (iii) no event has occurred that (that, with or without due notice or notice, lapse of time or both) , would reasonably be expected to result in a material breach ofdefault under the provisions of such Material Contract, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, except in each casecase for such violations, do not contain any material executory defaults, acts, events or continuing termsfailures as would not, conditionsindividually or in the aggregate, obligations or rights)reasonably be expected to have a Business Material Adverse Effect.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Sonoco Products Co)