Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”): (i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice; (ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person; (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 (whether by merger, sale of stock, sale of assets or otherwise); (v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party; (vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice; (vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group; (viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”); (ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time; (x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group; (xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand; (xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and (xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10. (b) Each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.
Appears in 4 contracts
Sources: Share Exchange Agreement (Impact Biomedical Inc.), Share Exchange Agreement (Impact Biomedical Inc.), Share Exchange Agreement (Document Security Systems Inc)
Material Contracts. (a) Section 3.10(aSchedule 5.12(a) of the Disclosure Schedules lists each Contract to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their assets, is bound, except for non-customer Contracts pursuant to which the obligations, of either party thereto are, or are contemplated to be, $50,000.00 or less (each, a “Material Contract”), including without limitation the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”)::
(i) each Contract involving aggregate consideration in excess of $100,000 and whichContracts with any Affiliate, in each caseEmployee, cannot be cancelled by the member current or former officer or director of the Company Group without penalty or without more than 90 days’ noticeany Subsidiary or any of their Affiliates;
(ii) all Collective bargaining agreements or other Contracts that require with any member of the Company Group to purchase its total requirements of labor union or association representing any product or service from a third party or that contain “take or pay” provisionsEmployees;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any TaxBonus, environmental pension, profit sharing, retirement or other Liability forms of any Persondeferred compensation plans;
(iv) all Contracts that relate to the acquisition Stock purchase, stock option or disposition 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)similar plans;
(v) all brokerContracts relating to incurrence of Indebtedness, distributorthe making of any loans, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which Hedging Arrangements or otherwise placing an Encumbrance on any member portion of the assets of the Company Group is a partyor its Subsidiaries;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) related to which the guaranty of any member obligation of any third Person by the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeits Subsidiaries;
(vii) except Contacts or purchase orders for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) capital expenditures or the acquisition or construction of any member fixed assets which involve the expenditure of the Company Groupmore than $50,000.00;
(viii) all Contracts with granting any Governmental Authority Person (other then Acquiror) an option or a first offer, first refusal or similar right to which purchase or acquire any member asset of the Company Group is a party (“Government Contracts”)or its Subsidiaries;
(ix) all Contracts relating to the lease of any real or personal property, including without limitation any mineral leases;
(x) Contracts that create a partnership, joint venture or similar arrangement;
(xi) Contracts that limit or purport to limit the ability of any member freedom of the Company Group or any Subsidiary to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other handarea;
(xii) all collective bargaining agreements Contracts (other than Contracts made in the Ordinary Course of Business) which involve the expenditure of more than $50,000.00 in the aggregate or Contracts with require performance by any Union to which any member of party more than one year from the date hereof that, in either case, are not terminable by the Company Group is a party; andwithout penalty on notice of 180 days or less;
(xiii) Contracts (other than the Option and Support Agreements) relating to the voting or any rights or obligations of any Shareholder;
(xiv) Contracts regarding the acquisition, issuance or transfer of any shares of capital stock or other Contract securities of the Company or any Subsidiary, including without limitation any restricted stock agreements, options, warrants or escrow agreements;
(xv) Royalty Agreements of the Company or any Subsidiary; or
(xvi) Other Contracts not made in the Ordinary Course of Business that is are material to the Company Group and not previously disclosed pursuant to this Section 3.10Company’s Business.
(b) Each Material Contract is valid and legal, valid, binding on the Company Group member party thereto in accordance with (or its terms Subsidiary), enforceable and is in full force and effect. None of effect and to the Company Group member or, to SellerCompany’s Knowledge, any other party thereto is in breach of or default under (or is alleged each Material Contract will continue to be legal, valid, binding on the other parties thereto, enforceable and in breach full force and effect on identical terms following the consummation of the transactions contemplated by this Agreement and following delivery of any consents or default under), or approval contemplated hereby.
(c) The Company has provided or not received any written notice of any intention to terminate, any Material Contract. No default or event or circumstance has occurred that, that with notice or lapse of time or both, both would constitute an event of a material default by the Company under any Material Contract Contract.
(d) All of the Contracts to which the Company is a party or result by which its assets are bound that are required to be described in a termination thereof the Company Reports (or would cause to be filed as exhibits thereto) are so described or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete filed and correct copies of each Material Contract (including all modifications, amendments are enforceable and supplements thereto in full force and waivers thereunder) have been made available to Buyereffect.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Royal Gold Inc), Merger Agreement (Battle Mountain Gold Exploration Corp.), Merger Agreement (Royal Gold Inc)
Material Contracts. (a) Section 3.10(a4.16(a) of the Company Disclosure Schedules lists each Letter sets forth a true and complete list, as of the following Contracts date of any member of the Company Group (such Contractsthis Agreement, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):of:
(i) each Contract involving aggregate consideration Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice100,000;
(ii) all Contracts each contract that require grants any member right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company Group or any of their respective Affiliates to purchase its total requirements own, operate, sell, transfer, pledge or otherwise dispose of any product businesses, securities or service from a third party assets (other than provisions requiring notice of or that contain “take or pay” provisionsconsent to assignment by any counterparty thereto);
(iii) all Contracts that provide for the indemnification by any member each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company Group or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any Person or the assumption asset) in excess of any Tax, environmental or other Liability of any Person$50,000;
(iv) all Contracts each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that relate can be terminated at any time with less than two days’ notice and without financial liability to the acquisition or disposition of any business, a material amount of stock or assets of any other Person Company or any real property (whether by merger, sale of stock, sale of assets or otherwise)its Subsidiaries;
(v) all brokereach contract containing any non-compete, distributornon-solicit, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member exclusivity or similar type of provision that materially restricts the ability of the Company Group is a party;
or any of its Subsidiaries (vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangementsincluding Parent upon consummation of the Transactions) to which any member of the Company Group is a party and which are not cancellable without material penalty compete or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete otherwise engage in any line of business or with any Person or in any geographic area or during any period of timearea;
(xvi) any Contracts each contract pursuant to which the Company or any member Subsidiary of the Company Group may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes);
(vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member such agreement solely between or among the Company and its wholly-owned Subsidiaries);
(viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company Group) or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand;
(xiiix) all collective bargaining agreements each contract that obligates the Company or Contracts with any Union of its Subsidiaries to which indemnify any member past or present directors, officers, or employees of the Company Group or any of its Subsidiaries;
(x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is a partyreasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xiiixi) any other Contract that each “material contract” (as such term is material defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company Group and not previously disclosed pursuant to this Section 3.10or any Subsidiary of the Company.
(b) Each Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is valid legal, valid, binding and binding on the Company Group member party thereto enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. None Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company Group member orCompany, to Seller’s Knowledge, is any other party thereto is to any such Company Contract in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct accurate copies of each Material Company Contract in effect as of the date hereof (including all modifications, amendments and supplements thereto and waivers thereundermodifications) have been furnished to or otherwise made available to BuyerParent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Evofem Biosciences, Inc.), Agreement and Plan of Merger (Aditxt, Inc.), Merger Agreement (Evofem Biosciences, Inc.)
Material Contracts. (a) The Company and the Company Subsidiaries are not a party to or bound by any of the following Contracts except as set forth in Section 3.10(a2(s) of the Disclosure Schedules lists each of the following Contracts of any member of Schedule or described in or filed as an exhibit to the Company Group SEC Documents (each, including any such ContractsContracts listed in the Company SEC Documents, together with all Contracts concerning a “Material Contract,” and collectively, the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each i. any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit to or by the Company, other than accounts receivables and payables in the ordinary course of business and travel and similar advances to employees in the ordinary course of business consistent with past practice;
ii. any joint venture, partnership, limited liability company, strategic alliance or other similar Contract involving aggregate consideration relating to the formation, creation, operation, management or control of any partnership or joint venture;
iii. any Contracts relating to all mergers, consolidations, recapitalizations, reorganizations or similar transactions, or any acquisitions or dispositions material to the Company, currently contemplated by the Company or that provide any ongoing material liabilities for payment of money, retention of liabilities, assets sold, indemnification or otherwise;
iv. any Contract providing for the payment by the Company or the Company Subsidiaries of an amount in excess of $100,000 and which, in each case, cannot be cancelled by the member of 150,000 or to the Company Group without penalty or without more than 90 days’ noticethe Company Subsidiaries of an amount in excess of $150,000;
(ii) all v. non-competition, non-solicitation or exclusive dealing Contracts or other Contracts that require any member of the Company Group to purchase its total requirements of any product restrict or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to restrict or limit in any material respect the ability of the Company or any member of its Affiliates to solicit customers, potential employees or the manner or location in which the business of the Company Group to compete in or any line of business its Affiliates may be conducted;
vi. any Contract the benefits of which will be increased by the consummation of the transactions contemplated hereby or with the value of any Person of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; or
vii. any other Contract the termination of which, or default under which, would, individually or in any geographic area the aggregate, have or during any period reasonably be expected to have a Material Adverse Effect. Each of time;
(x) any the Material Contracts to which the Company or any member Company Subsidiary is a party is in full force and effect and is a valid and binding obligation of the Company Group is a party that provide for any joint ventureor such Company Subsidiary, partnership or similar arrangement by any member and to the knowledge of the Company, the other party thereto, enforceable against the Company Group;
(xi) all Contracts between or among any member such Company Subsidiary, and to the knowledge of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on Company, enforceable against the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effectterms. None Neither the Company, nor to the knowledge of the Company Group member or, to Seller’s KnowledgeCompany, any other party thereto to a Material Contract to which the Company or any Company Subsidiary is a party, is in breach of or default under (violation of, or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any such Material Contract. No Contract to which it is a party and no event or circumstance has occurred that, individually or in the aggregate, with notice or the lapse of time or both, the giving of notice or both would constitute an event a default thereunder by the Company, the Company Subsidiaries or, to the knowledge of default under the Company, by any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyerparty thereto.
Appears in 3 contracts
Sources: Preferred Stock Subscription Agreement, Preferred Stock Subscription Agreement (Lighting Science Group Corp), Preferred Stock Subscription Agreement (Lighting Science Group Corp)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member Other than this Agreement or as made available to Purchaser, none of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
Subsidiaries is a party to or bound by: (i) each any Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC; (ii) any Contract containing covenants binding upon the Company or any Company Subsidiary that materially restricts the ability of the Company Group without penalty or without more than 90 days’ notice;
any Company Subsidiary (ii) all Contracts that require any member or which, following the consummation of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit Transactions could materially restrict the ability of any member of the Company Group Company) to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on the Company Group member party thereto Subsidiaries, taken as a whole, as of the date of this Agreement, or with any person or in accordance any geographic area, except for any such Contract that may be cancelled without penalty by the Company or any Company Subsidiary upon notice of 60 days or less; (iii) any Contract with its terms and is in full force and effect. None respect to a material joint venture or material partnership agreement (excluding information technology Contracts); (iv) any Contract with any director, officer or Affiliate of the Company Group member oror any Company Subsidiary (other than any Company Employee Benefit Plan); (v) any Contract for the acquisition, to Seller’s Knowledgedisposition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise); (vi) any employment, deferred compensation, severance, bonus, retirement or other similar agreement entered into by the Company or any Company Subsidiary, on the one hand, and any director or officer of the Company or any other party thereto is employee of the Company or any Company Subsidiary receiving annual cash compensation of $200,000 or more, on the other hand; (vii) any Contract, other than Leases, contemplating payments by the Company or any Subsidiary of more than $300,000 in breach of any calendar year; and (viii) each amendment, supplement or default under (or is alleged to be modification in breach of or default under), or has provided or received any notice respect of any intention of the foregoing Contracts or any commitment or agreement to terminate, enter into any of the foregoing contracts. Each such Contract described in clauses (i) through (viii) is referred to herein as a “Company Material Contract. No event or circumstance has occurred that.” “Contract” means any agreement, with notice or lapse of time or bothcontract, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration obligation, arrangement, undertaking or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyercommitment that is legally binding.
Appears in 3 contracts
Sources: Stock Purchase and Sale Agreement (Janel Corp), Stock Purchase and Sale Agreement (Janel Corp), Stock Purchase and Sale Agreement (Rubicon Technology, Inc.)
Material Contracts. (a) Except as set forth in Section 3.10(a4.19(a) of the Disclosure Schedules lists each Schedule, neither the Company nor any Subsidiary is a party to or bound by any “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K of the following Contracts SEC) or “definitive material agreement” (as such term is defined in Item 1.01 of any member Form 8-K of the Company Group SEC). Section 4.19(a) of the Disclosure Schedule lists the following contracts (such Contracts, together along with all Contracts concerning the occupancy“material contracts” and “definitive material agreements” referred to in the preceding sentence, management or operation of any Real Property (including without limitationand the IP Contracts, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of collectively, the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract involving aggregate consideration Contracts which restrict or limit the conduct of or competition in excess any line of $100,000 and whichbusiness by the Company, any Subsidiary or any of the Company’s current or future affiliates, or the geographic area in which the Company, any Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ noticecase in any material respect;
(ii) all Contracts which grant any right of first refusal, right of first offer or similar right or that require any member limit or purports to limit the ability of the Company Group or any Subsidiary to purchase its total requirements sell, transfer, pledge or otherwise dispose of any product material amount of assets or service from a third party or that contain “take or pay” provisionsbusiness;
(iii) all Contracts that provide for which would prevent, materially delay or impede the indemnification consummation of, or otherwise reduce the benefits of, the transactions contemplated by any member of this Agreement, including the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any PersonMerger;
(iv) all Contracts that with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement, and those which relate to the acquisition formation, creation, operation, management or disposition control of any businesspartnership or joint venture that is material to the business of the Company and the Subsidiaries, taken as 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)whole;
(v) all brokerContracts which were entered into after December 31, distributor2007, dealerand involve the acquisition from another person or disposition to another person, manufacturer’s representativedirectly or indirectly (by merger, franchiselicense or otherwise), agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of assets or capital stock or other equity interests of another person for aggregate consideration under such contract (or series of related contracts) in excess of $1 million (other than acquisitions or dispositions of inventory in the Company Group is a partyordinary course of business);
(vi) all employment agreements and Contracts with independent contractors or consultants any contract (or similar arrangementsseries of related contracts) to which with any member agency or department of the United States federal government or any state or local government for the purchase of goods and/or services from the Company Group is a party and or any Subsidiary which are not cancellable without material penalty would reasonably be expected to result in payments to the Company or without more than 90 days’ noticeany Subsidiary in excess of $1 million;
(vii) except for Contracts relating which relate to trade receivablesan acquisition, all Contracts relating divestiture, merger, license or similar transaction and contain 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 indebtedness (including, without limitation, guarantees) of any member of result in payments by the Company Groupor any Subsidiary;
(viii) Contracts which relate to any guarantee or assumption of other obligations of any third party or reimbursement of any maker of a letter of credit, except for agreements entered into in the ordinary course of business consistent with past practice which agreements relate to obligations which do not exceed $1 million in the aggregate for all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”)such agreements;
(ix) all Contracts that limit which prohibit the payment of dividends or purport to limit distributions in respect of the ability of any member capital stock of the Company Group to compete in or any line of business its wholly-owned Subsidiaries, prohibit the pledging of the capital stock of the Company or with any Person wholly-owned Subsidiary or in prohibit the issuance of guarantees by any geographic area or during any period of time;wholly-owned Subsidiary; or
(x) any Contracts which would reasonably be expected to which any member of involve aggregate payments to or by the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate Subsidiary of Seller (other more than any member $1 million over the term of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10such contract.
(b) Section 4.19(b) of the Disclosure Schedule sets forth (i) a list of all agreements, instruments and other obligations pursuant to which any indebtedness for borrowed money or capitalized lease obligations of the Company or any Subsidiary in an aggregate principal amount in excess of $250,000 is outstanding or may be incurred or other contract of which the Company is obligated to provide funds in respect of, or to guarantee or assume, any debt of any third party in excess of $250,000 and (ii) the respective principal amounts outstanding thereunder as of the date of this Agreement. Each Material Contract is a valid and binding on obligation of the Company Group member (or, if a Subsidiary is a party, such Subsidiary) and, to the knowledge of Company, each other party thereto in accordance with its terms thereto, and is in full force and effect, and the Company and each Subsidiary have performed all obligations required to be performed by them under each Material Contract and, to the Company’s knowledge, each other party to each Material Contract has performed all material obligations required to be performed by it under such Material Contract. None Neither the Company nor any Subsidiary is and to the knowledge of the Company Group member orCompany, to Seller’s Knowledgeno third party is, any other party thereto is in breach violation 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. No event or circumstance has occurred that, nor does any condition exist which with notice or lapse the passage of time or both, the giving of notice would constitute an event cause such a violation of or default under any Material Contract, except for violations or defaults that have not had, and would not, individually or in the aggregate, have a Material Adverse Effect. No counterparty to any Material Contract has cancelled or otherwise terminated any Material Contract or result in a termination thereof provided to the Company written notice, or would cause or permit to the acceleration or other changes knowledge of any right or obligation or the loss Company, oral notice, of any benefit thereunderits intent to do so. Complete As of the date hereof, true and correct complete copies of each all Material Contract Contracts (including all modifications, amendments exhibits and supplements thereto and waivers thereunderschedules thereto) have been are either publicly filed with the SEC or the Company has made available to BuyerParent copies of such Material Contracts.
Appears in 3 contracts
Sources: Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Radyne Corp), Merger Agreement (Comtech Telecommunications Corp /De/)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements Except as set forth in Section 3.12(b) the exhibit index of the Disclosure SchedulesCompany’s Annual Report on Form 10-K for the fiscal year ended May 26, being “Material Contracts”):
2007 and as permitted pursuant to Section 6.1, neither the Company nor any of its Subsidiaries is a party to or bound by (i) each Contract involving aggregate consideration any agreement relating to the incurring of Indebtedness by the Company or any of its Subsidiaries in an amount in excess of $100,000 and which1,000,000 in the aggregate, including any such agreement which contains provisions that restrict, or may restrict, the conduct of business of the issuer thereof as currently conducted (collectively, “Instruments of Indebtedness”); (ii) any “material contract” (as such term is defined in each caseItem 601(b)(10) of Regulation S-K of the SEC); (iii) any non-competition or exclusive dealing agreement, cannot be cancelled by or any other agreement or obligation which purports to limit or restrict in any respect (A) the member ability of the Company Group without penalty or without more than 90 days’ notice;
its Subsidiaries to solicit customers or (iiB) the manner in which, or the localities in which, all Contracts that require or any member portion of the business of the Company Group to purchase and its total requirements Subsidiaries or, following consummation of the transactions contemplated by this Agreement, Parent and its Subsidiaries, is or would be conducted, or any product non-competition or service from a third party exclusive dealing agreement, or that contain “take any other agreement or pay” provisions;
obligation of the type described in (A) or (B) of this clause (iii) all Contracts that provide which following the Closing would purport to apply to Parent or any of its Affiliates other than the Company and its Subsidiaries; (iv) any agreement providing for the indemnification indemnification, in excess of $2,000,000, by any member the Company or a Subsidiary of the Company Group of any Person or other than standard form indemnity provisions in agreements with customers of the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person Company or any real property (whether by merger, sale of stock, sale its Subsidiaries entered into in the ordinary course of assets or otherwise);
business consistent with past practice; (v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
joint venture or partnership agreement; (vi) all employment agreements and Contracts with independent contractors any agreement that grants any right of first refusal or consultants (right of first offer or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty right or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit limits or purport purports to limit the ability of the Company or any member of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; (vii) any contract or agreement providing for any payments that are conditioned, in whole or in part, on a change of control of the Company Group or any of its Subsidiaries; (viii) any collective bargaining agreement; (ix) any agreement material to compete in the Company and its Subsidiaries, taken as a whole, pertaining to the use of or granting any line of business right to use or with practice any Person or in rights under any geographic area or during any period of time;
Intellectual Property; (x) any Contracts agreements pursuant to which the Company or any member of its Subsidiaries leases any material real property or leases any material real property to third parties; (xi) any contract or agreement material to the Company and its Subsidiaries, taken as a whole, providing for the outsourcing or provision of servicing of customers, technology or product offerings of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
its Subsidiaries; (xii) all collective bargaining agreements or Contracts with any Union contract relating to which the supply of any member of material item used by the Company Group or a Subsidiary that is a partysole source of supply; and
(xiii) any contract or other Contract agreement entered into since January 1, 1997 with respect to the acquisition or divestiture of all or any portion of a business; or (xiv) any other contract or other agreement not made in the ordinary course of business consistent with past practice that (A) is not within any of the other categories described in this Section 4.9(a) but is material to the Company Group and not previously disclosed pursuant its Subsidiaries taken as a whole, (B) would reasonably be expected to result in revenues, receipts, liabilities or expenditures, or otherwise involve an amount, in excess of $5,000,000 per year or (C) would reasonably be expected to materially delay or prevent the consummation of the Offer, the Merger or any of the transactions contemplated by this Agreement (the agreements, contracts and obligations set forth in the exhibit index of the Company’s Annual Report on Form 10-K for the fiscal year ended May 26, 2007 and the agreements, contracts and obligations listed in clauses (i) through (xiv) being referred to herein as “Company Material Contracts”). None of the Company Material Contracts contains a “most favored nation” clause or other term providing preferential pricing or treatment to a third party. Section 3.104.9(a) of the Company Disclosure Schedule sets forth as of the date hereof all of the Company Material Contracts. True, correct and complete copies of each Company Material Contract have been made available to Parent.
(b) Each Company Material Contract is valid and binding on the Company Group member (or, to the extent a Subsidiary of the Company is a party, such Subsidiary) and, to the knowledge of the Company, any other party thereto in accordance with its terms thereto, and each Company Material Contract is in full force and effect. None Neither the Company nor any of its Subsidiaries is in breach or default under any Company Material Contract or is aware of any condition that with the passage of time or the giving of notice or both would result in such a breach or default, except in each case where any such breaches or defaults would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on the Company. Neither the Company nor any Subsidiary of the Company Group member orknows of, or has received written notice of, any breach or default under (nor, to Seller’s Knowledgethe knowledge of the Company, does there exist any condition which with the passage of time or the giving of notice or both would result in such a breach or default under) any Company Material Contract by any other party thereto is in breach of except where any such violation or default under (would not, individually or is alleged in the aggregate, reasonably be expected to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof Material Adverse Effect on the Company.
(c) There are no provisions in any Instrument of Indebtedness that provide any restrictions on the repayment of the outstanding Indebtedness thereunder, or would cause or permit that require that any financial payment (other than payment of outstanding principal and accrued interest) be made in the acceleration or other changes event of the repayment of the outstanding Indebtedness thereunder prior to expiration. “Indebtedness” means, with respect to any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract Person, all obligations (including all modificationsobligations in respect of principal, amendments accrued interest, penalties, prepayment penalties, fees and supplements thereto premiums) of such Person (i) for borrowed money (including overdraft facilities), (ii) evidenced by notes, bonds, debentures or similar instruments, (iii) for the deferred purchase price of property, goods or services (other than trade payables or accruals incurred in the ordinary course of business), (iv) under capital leases (in accordance with GAAP), (v) in respect of letters of credit and waivers thereunderbankers’ acceptances, (vi) under interest rate or currency swap or other derivative or hedging instruments and transactions (valued at the termination value thereof), (vii) secured by any Lien on property or assets owned by such Person, whether or not the obligations secured thereby have been made available assumed, (viii) all obligations of such Person under any sale and lease back transaction, agreement to Buyerrepurchase securities sold or other similar financing transaction and (ix) in the nature of guarantees of the obligations described in clauses (i) through (viii) above of any other Person.
Appears in 3 contracts
Sources: Merger Agreement (Raven Acquisition Corp.), Merger Agreement (Danaher Corp /De/), Merger Agreement (Tektronix Inc)
Material Contracts. (a) Section 3.10(a4.10(a) of the Company Disclosure Schedules lists Schedule sets forth a true, complete and correct list of each of the following Contracts of any member of to which the Company Group is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, together with collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property (including without limitationowned, brokerage contracts) listed leased or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled used by the member of the Company Group without penalty or without more than 90 days’ noticeCompany;
(iixv) all Contracts that require any member of collective bargaining agreements entered into by the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisionsCompany;
(iiixvi) all Contracts any Contract providing that provide for the indemnification by any member of the Company Group of indemnify any Person or in an amount that would be material to the assumption Company, other than any such agreement entered into in the Ordinary Course of any Tax, environmental or other Liability of any PersonBusiness;
(ivxvii) 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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which the Company is a party;
(xviii) any member Contracts that limit, in any material respect, the ability of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xxix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party that provide for any joint venture, partnership and which are not cancellable without material penalty or similar arrangement by any member of the Company Group;
without more than ninety (xi90) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partydays’ notice; and
(xiiixx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company Group and not previously otherwise disclosed pursuant to this Section 3.104.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company Group member party thereto in accordance with its respective terms and is (ii) in full force and effect. None Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the Company Group member ormaterial terms, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default underas applicable), or has provided or received any notice of any intention between the Company, on one hand, and the other parties thereto, on the other hand, with respect to terminate, any Material Contractthe subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(including all modificationsd) The Company has no Liability for the deferred purchase price of property, amendments and supplements thereto and waivers thereundergoods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) have been made available to Buyeror noncompetition agreement.
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.)
Material Contracts. (a) Section 3.10(a4.10(a) of the Company Disclosure Schedules lists each Schedule contains a complete list of the following types of Contracts of any member of to which the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed a Company Subsidiary is a party or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):is bound:
(i) each Contract involving aggregate consideration “material contract” (as such term is defined in excess Item 601(b)(10) of $100,000 and which, in each case, cannot be cancelled Regulation S-K promulgated by the member of SEC) with respect to the Company Group without penalty or without more than 90 days’ noticeany Company Subsidiary;
(ii) all Contracts that require or arrangements with any member of the Company Group to purchase its total requirements of any product Third Party constituting joint ventures or service from a third party or that contain “take or pay” provisionspartnerships;
(iii) all Contracts that provide relating to Indebtedness (other than indebtedness for the indemnification by any member borrowed money) of the Company Group or any Company Subsidiary in excess of $3,000,000 and all Contracts relating to indebtedness for borrowed money of the Company or any Person or the assumption Company Subsidiary in excess of any Tax, environmental or other Liability of any Person$1,000,000;
(iv) all Contracts that relate entered into after July 1, 2008 relating to the any acquisition or disposition of any businessdisposition, a material amount of stock directly or assets of any other Person or any real property indirectly (whether including by merger, sale consolidation, combination or amalgamation), by the Company or any of stock, sale the Company Subsidiaries of properties or assets or otherwise)capital stock or other equity interests of another Person for aggregate consideration under such Contract in excess of $500,000, except, in each case, for acquisitions and dispositions of properties, assets and inventory in the ordinary course of business and consistent with past practice;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member currently used in the current conduct of the business of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (any Company Subsidiary and, to the Knowledge of the Company, any other Contract, which contain covenants that limit, or similar arrangements) purport to which any member limit, the ability of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating any Company Subsidiary to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete engage in any line of business business, or to compete with any Person or in operate at any geographic area location or during any period of time;
(xvi) each Contract that contains obligations of the Company or any Company Subsidiary secured by a Lien (other than a Permitted Lien), or provides for interest rate or currency hedging arrangements, in each case in connection with which the aggregate actual or contingent obligations of the Company and the Company Subsidiaries under such Contract are greater than $250,000;
(vii) each Contract with a Governmental Entity that involved aggregate payments of over $500,000 in 2010 or is reasonably likely to involve aggregate payments of over $500,000 in 2011;
(viii) All Contracts pursuant to which any member material Intellectual Property is licensed (or rights to use are granted) to the Company or any Company Subsidiary and also both (A) used in the current conduct of the business of the Company Group is or a party that provide for any joint venture, partnership or similar arrangement Company Subsidiary and (B) subject to remaining material payment obligations by any member of the Company Groupor any Company Subsidiary (excluding shrink-wrap or click-wrap licenses or licenses concerning generally commercially available software);
(ix) All Contracts pursuant to which any material Company Intellectual Property is licensed (or rights to use granted) by the Company or any Company Subsidiary that are subject to remaining material payment obligations by a Third Party;
(x) all Contracts and Leases concerning the use, occupancy, management or operation of, or evidencing any interests in, any Leased Real Property that are, in each case, material to the Company and the Company Subsidiaries, taken as a whole (“Material Real Property Leases”);
(xi) all Contracts between that (A) require the Company or among any member Company Subsidiary to use any supplier or Third Party for all or substantially all of the requirements or needs for the operation of the business of the Company Group on the one hand and Seller or any Affiliate of Seller Company Subsidiary as currently conducted, (other than B) obligate the Company or any member Company Subsidiary to conduct business on a “most favored nations” basis with any Third Party, (C) limit or purport to limit the ability of the Company Groupor any Company Subsidiary to solicit any customers or clients of any other Person, (D) on require the Company or any Company Subsidiary to market or co-market any clinical laboratory services or other handproducts or services of a Third Party, or (E) are “take-or-pay” Contracts or other similar agreements or arrangements requiring the Company or any Company Subsidiary to make a minimum payment for goods or services from Third Party suppliers irrespective of usage that are material to the Company and the Company Subsidiaries, taken as a whole;
(xii) all collective bargaining agreements or Contracts with any Union each Contract pursuant to which any member of the Company Group or any Company Subsidiary is bound that includes a partycontinuing “earn out” or other contingent payment obligation, in each case, that could result in payments in excess of $250,000 other than ordinary course agreements with customers, suppliers or licensors;
(xiii) each Contract between or among the Company or any Company Subsidiary, on the one hand, and any of their respective Affiliates (other than the Company or any Company Subsidiary), on the other hand, that involves payments of more than $250,000 in any one year;
(xiv) each Contract involving aggregate payments of over $1,000,000 over its remaining term that is not terminable by the Company or one of its Subsidiaries without penalty and on less than 120 days notice, other than Contracts entered into in the ordinary course of business and consistent with past practice; and
(xiiixv) any all other Contracts, whether or not made in the ordinary course of business, the absence of which would have a Company Material Adverse Effect. Each Contract that is material to of the type described in this Section 4.10(a), whether or not set forth in Section 4.10(a) of the Company Group and not previously disclosed pursuant Disclosure Schedule is referred to this Section 3.10herein as a “Company Material Contract.”
(b) Each Except for matters that would not have a Company Material Adverse Effect, (i) each Company Material Contract is a legal, valid and binding on obligation of the Company Group member party thereto or a Company Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Company Subsidiary in accordance with its terms terms, subject to the Bankruptcy and Equity Exceptions, (ii) to the Company’s Knowledge, each Company Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect. None effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exceptions, (iii) the Company and each of the Company Group member orSubsidiaries, and, to Sellerthe Knowledge of the Company, each other party thereto, has performed all obligations required to be performed by it under each Company Material Contract (excluding performance obligations not yet due), (iv) neither the Company nor any Company Subsidiary has received any written claim or notice of (A) a default, termination or cancellation under any Company Material Contract, (B) any intent or threat to claim any of the foregoing or (C) seeking to amend any provision of any Company Material Contract in a manner materially adverse to the Company or any Company Subsidiary and (v) neither the Company nor any Company Subsidiary nor, to the Company’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of violation of, or default under), any Company Material Contract and no event has occurred, including the execution by the Company of this Agreement, or has provided not occurred through the Company’s or received any notice Company Subsidiary’s action or inaction or, to the Company’s Knowledge, the action or inaction of any intention to terminateThird Party, any Material Contract. No event or circumstance has occurred that, that with notice or lapse of time or both, would will constitute an event of a breach or violation of, or default under under, any Company Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunderContract. Complete and correct copies of each all Company Material Contract Contracts (including all modifications, amendments and supplements thereto and waivers thereunderas amended or modified) are either publicly filed with the SEC or have been otherwise made available to BuyerParent.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Celera CORP)
Material Contracts. (a) Except as disclosed in Section 3.10(a4.9(a), Section 4.9(f) of the Disclosure Schedules lists each of the following Contracts of any member and Section 4.18 of the Company Group Disclosure Letter, (such Contractsa) neither the Company, together with all Contracts concerning the occupancynor any of its Subsidiaries is a party to, management or operation of any Real Property and (including without limitation, brokerage contractsb) listed or otherwise disclosed in Section 3.11(b) none of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) Company, any of the Disclosure Schedulesits Subsidiaries, being “Material Contracts”):or any of their respective properties or assets is bound by, Contracts that:
(i) each Contract involving aggregate consideration are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K;
(ii) with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement, related to the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Company and the Subsidiaries, taken as a whole, or in excess which the Company owns more than a 20% voting or economic interest, or with respect to which the Company has obligations of more than $100,000 and which250,000 in the aggregate;
(iii) relate to indebtedness for borrowed money, the deferred purchase price of property or service, any credit agreement, note, bond, mortgage, debenture or other similar instrument, any letter of credit or similar facilities, any obligation to purchase, redeem, retire, defease or otherwise acquire for value any capital stock or any warrants, rights or options to acquire such capital stock, or any guarantee with respect to an obligation of any other Person, in each case, cannot be cancelled by the member having an outstanding principal amount in excess of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person$250,000;
(iv) all Contracts that relate to an acquisition, divestiture, merger or similar transaction 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 acquisition or disposition aggregate, could reasonably be expected to result in payments in excess 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)$250,000;
(v) all brokerother than an acquisition subject to clause (iv) above, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of obligate the Company Group is a party;to make any capital commitment or expenditure (including pursuant to any joint venture) in excess of $250,000; or
(vi) all employment agreements and Contracts with independent contractors prohibits the payment of dividends or consultants (or similar arrangements) to which any member distributions in respect of the capital stock of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivablesany of its Subsidiaries, all Contracts relating to indebtedness (including, without limitation, guarantees) prohibits the pledging of any member the capital stock of the Company Group;
(viii) all Contracts with or any Governmental Authority to which of its Subsidiaries or prohibits the issuance of guarantees by any member Subsidiary of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member Company; Each Contract of the Company Group type described in clauses (i) through (vi) above is referred to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is herein as a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10“Material Contract.”
(b) Each Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company Group member and any of its Subsidiaries to the extent such Subsidiary is a party thereto in accordance with its terms thereto, as applicable, and is in full force and effect. None effect and enforceable against the Company or its Subsidiary in accordance with its terms, (ii) to the Knowledge of the Company, each Material Contract is valid and binding on the other parties thereto, is in full force and effect and enforceable against such other party in accordance with its terms, (iii) the Company Group member and each of its Subsidiaries has performed all obligations required to be performed by it to date under each Material Contract, (iv) neither the Company nor any of its Subsidiaries has received written notice of, the existence of any event or condition which constitutes, or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with after notice or lapse of time or both, would constitute an event will constitute, a material default or breach on the part of default the Company or any of its Subsidiaries under any such Material Contract, (v) neither the Company nor any of its Subsidiaries has received written notice from any other party to a Material Contract with respect to the termination, non-renewal or result renegotiation in a termination thereof any material respects of the terms of, and otherwise has no Knowledge that such other party intends to terminate, not renew, or would cause or permit renegotiate in any material respects the acceleration or other changes terms of, any Material Contract.
(c) The Company has made available to Parent, as of any right or obligation or the loss date of any benefit thereunder. Complete this Agreement, true, correct and correct complete copies of each Material Contract (including all modificationsamendments or modifications to), amendments and supplements thereto and waivers thereunder) have been made available to Buyerall Material Contracts.
Appears in 3 contracts
Sources: Merger Agreement (Bankrate, Inc.), Merger Agreement (Bankrate Inc), Merger Agreement (Bankrate Inc)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans and agreements filed as exhibits to the Company SEC Documents prior to the date hereof and the agreements set forth on Section 3.10(a3.20(a) of the Company Disclosure Schedules lists each Schedule, as of the following Contracts date of any member of this Agreement, neither the Company Group (such Contracts, together with all Contracts concerning the occupancy, management nor any of its Subsidiaries is a party to or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):bound by:
(i) each Contract involving aggregate consideration any “material contract” (as such term is defined in excess Item 601(b)(10) of $100,000 and which, in each case, cannot be cancelled by the member Regulation S-K of the Company Group without penalty or without more than 90 days’ noticeSEC);
(ii) all Contracts that require any member contract imposing any material restriction on the right or ability of the Company Group or any of its Subsidiaries to purchase its total requirements (A) compete with any other person or (B) acquire or dispose of any product or service from a third party or that contain “take or pay” provisionsthe securities of another person;
(iii) all Contracts that provide for the indemnification by any member mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing Indebtedness of the Company Group or any of any Person or the assumption its Subsidiaries in an amount in excess of any Tax, environmental or other Liability of any Person$50.0 million;
(iv) any Contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties with a value or requiring annual fees in excess of $50.0 million;
(v) any Contract to acquire all Contracts that relate to or a substantial portion of the acquisition or disposition of any capital stock, business, a material amount of stock property or assets of any other Person person for an amount of cash (or any real property (whether by mergervalue of non-cash consideration), sale in excess of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party$50.0 million;
(vi) all employment agreements and Contracts with independent contractors any joint venture, partnership or consultants (limited liability company agreement or other similar arrangements) Contract relating to which the formation, creation, operation, management or control of any member of joint venture, partnership or limited liability company, other than any such Contract solely between or among the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeany of its Subsidiaries;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member Contract limiting or restricting the ability of the Company Groupor any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(viii) all Contracts with any Governmental Authority to which Contract containing any member of the Company Group is a party (“Government Contracts”)exclusivity or most favored nation clause;
(ix) all Contracts any Contract that limit involves future expenditures or purport to limit the ability of any member of receipts by the Company Group to compete or any of its Subsidiaries of more than $50.0 million in any line of business one year period that cannot be terminated on less than 90 days’ notice without material payment or with any Person or in any geographic area or during any period of timepenalty;
(x) any Contracts acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to which any member of result in future payments by or to the Company Group is a party that provide for or any joint venture, partnership or similar arrangement by any member of the Company Groupits Subsidiaries in excess of $25.0 million;
(xi) all Contracts between any Contract with a labor union or among guild (including any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other handcollective bargaining agreement);
(xii) all collective bargaining agreements or Contracts with any Union to which Contract containing provisions triggered by any member change of control of the Company Group is a party; andor any of its Subsidiaries;
(xiii) any other Contract that is material in favor of directors, officers, members, managers or partners relating to the Company Group and not previously disclosed pursuant employment or compensation or providing rights to this Section 3.10.indemnification;
(bxiv) Each Material any Contract is valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in loss or breach of which could reasonably be expected to have a Company Material Adverse Effect; and
(xv) any material lease or default under (or is alleged sublease with respect to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyerleased real property.
Appears in 3 contracts
Sources: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements Except as set forth in the exhibit index for the Company’s Annual Report on Form 10-K for the year ended September 30, 2005 or as permitted pursuant to Section 3.12(b) 6.1, neither the Company nor any of the Disclosure Schedules, being “Material Contracts”):
its Subsidiaries is a party to or bound by (i) each Contract involving aggregate consideration any agreement relating to the incurring of Indebtedness by the Company or any of its Subsidiaries in an amount in excess of $100,000 and which2,000,000 in the aggregate, including any such agreement which contains provisions that restrict, or may restrict, the conduct of business of the issuer thereof as currently conducted (collectively, “Instruments of Indebtedness”), (ii) any “material contract” (as such term is defined in each caseItem 601(b)(10) of Regulation S-K of the SEC), cannot be cancelled by (iii) any non-competition or exclusive dealing agreement, or any other agreement or obligation which purports to limit or restrict in any material respect (A) the member ability of the Company Group without penalty or without more than 90 days’ notice;
its Subsidiaries to solicit customers or (iiB) the manner in which, or the localities in which, all Contracts that require or any member portion of the business of the Company Group to purchase and its total requirements Subsidiaries or, following consummation of the transactions contemplated by this Agreement, Parent and its Subsidiaries, is or would be conducted, or any product non-competition or service from a third party exclusive dealing agreement, or that contain “take any other agreement or pay” provisions;
obligation of the type described in (A) or (B) of this clause (iii) all Contracts that provide which following the Closing would purport to apply to Parent or any of its Affiliates other than the Company and its Subsidiaries, (iv) any agreement providing for the indemnification indemnification, in excess of $1,000,000, by any member the Company or a Subsidiary of the Company Group of any Person or other than standard form indemnity provisions in agreements with customers of the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person Company or any real property (whether by mergerof its Subsidiaries, sale of stock, sale of assets or otherwise);
(v) all brokerany joint venture or partnership agreement, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors any agreement that grants any right of first refusal or consultants (right of first offer or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty right or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit limits or purport purports to limit the ability of the Company or any member of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business, (vii) any contract or agreement providing for any payments in excess of $1,000,000 that are conditioned, in whole or in part, on a change of control of the Company Group or any of its Subsidiaries, (viii) any collective bargaining agreement, (ix) any agreement material to compete in the Company and its Subsidiaries, taken as a whole, pertaining to the use of or granting any line of business right to use or with practice any Person or in rights under any geographic area or during any period of time;
Intellectual Property, (x) any Contracts agreements pursuant to which the Company or any member of its Subsidiaries leases any material real property or leases any material real property to third parties, (xi) any contract or agreement material to the Company and its Subsidiaries, taken as a whole, providing for the outsourcing or provision of servicing of customers, technology or product offerings of the Company Group or its Subsidiaries, (xii) any contract or other agreement to which Apogent Technologies Inc. (“Former Company Parent”) or any of its present or former Subsidiaries is a party that provide for any joint ventureor otherwise bound, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract contract or other agreement not made in the ordinary course of business consistent with past practice that (A) is material to the Company Group and not previously disclosed pursuant its Subsidiaries taken as a whole or (B) would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated by this Agreement (the agreements, contracts and obligations listed in clauses (i) through (xiii) being referred to herein as “Company Material Contracts”). None of the Company Material Contracts contains a “most favored nation” clause or other term providing preferential pricing or treatment to a third party. Section 3.104.9(a) of the Company Disclosure Schedule sets forth as of the date hereof all of the Company Material Contracts.
(b) Each Company Material Contract is valid and binding on the Company Group member (or, to the extent a Subsidiary of the Company is a party, such Subsidiary) and, to the knowledge of the Company, any other party thereto in accordance with its terms thereto, and each Company Material Contract is in full force and effect. None Neither the Company nor any of its Subsidiaries is in breach or default under any Company Material Contract or is aware of any condition that with the passage of time or the giving of notice or both would result in such a breach or default, except in each case where any such breaches or defaults would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on the Company. Neither the Company nor any Subsidiary of the Company Group member orknows of, or has received written notice of, any breach or default under (nor, to Seller’s Knowledgethe knowledge of the Company, does there exist any condition which with the passage of time or the giving of notice or both would result in such a breach or default under) any Company Material Contract by any other party thereto is in breach of except where any such violation or default under (would not, individually or is alleged in the aggregate, reasonably be expected to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof Material Adverse Effect on the Company.
(c) There are no provisions in any Instrument of Indebtedness that provide any restrictions on the repayment of the outstanding Indebtedness thereunder, or would cause or permit that require that any financial payment (other than payment of outstanding principal and accrued interest) be made in the acceleration or event of the repayment of the outstanding Indebtedness thereunder prior to expiration. For purposes of this Agreement, “Indebtedness” of a Person shall mean (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes and similar instruments, (iii) all leases of such Person capitalized in accordance with GAAP, and (iv) all obligations of such Person under sale-and-lease back transactions, agreements to repurchase securities sold and other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyersimilar financing transactions.
Appears in 3 contracts
Sources: Merger Agreement (Sybron Dental Specialties Inc), Merger Agreement (Danaher Corp /De/), Merger Agreement (Danaher Corp /De/)
Material Contracts. (a) Section 3.10(aExcept for Contracts relating to the Retained Assets, which will not be assumed by Acquirer, Schedule 3.15(a) of the Contributor Disclosure Schedules Schedule lists each of the following Contracts of any member as of the Company Group Execution Date (such Contracts, together with all Contracts concerning collectively, the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contracts”):
(i) each any Contract involving aggregate consideration in excess between any Propane Group Entity or Inergy Sales, on the one hand, and NRGY or any Affiliate of $100,000 and whichNRGY (other than the Propane Group Entities or Inergy Sales), in each case, cannot be cancelled by on the member of the Company Group without penalty or without more than 90 days’ noticeother hand;
(ii) all Contracts any Contract that require contains any member of the Company provision or covenant which restricts any Propane Group to purchase its total requirements of Entity or Inergy Sales from engaging in any product lawful business activity or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete competing in any line of business or with any Person or in any geographic area or during any period of timetime after the Execution Date;
(iii) any Contract that relates to the creation, incurrence, assumption or guarantee of any Indebtedness by any Propane Group Entity or Inergy Sales with an aggregate principal amount exceeding $100,000;
(iv) any Contract in respect of the formation of any partnership or joint venture or that otherwise relates to the joint ownership or operation of the assets owned by any of the Propane Group Entities or Inergy Sales;
(v) any Contract of the Propane Group Entities or Inergy Sales that includes the acquisition or sale of assets (other than Contracts for Inventory entered into in the ordinary course of business) (A) with a value in excess of $5,000,000 or (B) pursuant to which any Propane Group Entity or Inergy Sales has continuing “earn-out” or similar obligations (in either case, whether by merger, sale of stock, sale of assets or otherwise);
(vi) any Contract or commitment that involves a sharing of profits by any Propane Group Entity or Inergy Sales with any other Person;
(vii) any Contract that otherwise involves the annual payment or sale by or to any of the Propane Group Entities or Inergy Sales of more than $500,000 or 250,000 gallons of propane, respectively, and that cannot be terminated by the Propane Group Entities or Inergy Sales on ninety (90) days’ or less notice without the payment by the Propane Group Entities or Inergy Sales of any material penalty or other further payment;
(viii) all Contracts with independent contractors or consultants (or similar arrangements) to which any Propane Group Entity or Inergy Sales is a party involving annual payments in excess of $100,000 and that cannot be cancelled by such Propane Group Entity or Inergy Sales without penalty or further payment and without more than thirty (30) days’ notice;
(ix) all Contracts with any Governmental Authority pursuant to which a Propane Group Entity or Inergy Sales has an obligation to sell propane in quantities that are in excess of 250,000 gallons;
(x) any Contracts to which Contract involving annual payments in excess of $100,000 that contains most favored nations provisions or grants any member exclusive rights, rights of the Company Group is a party that provide for any joint venturefirst refusal, partnership rights of first negotiation, participation or similar arrangement by rights to any member Person with respect to any assets or business opportunity of the Company Groupany Propane Group Entity or Inergy Sales;
(xi) all Contracts between any lease of personal property under which any Propane Group Entity or among Inergy Sales is lessee (A) providing for the payment by such Propane Group Entity or Inergy Sales of annual rent of $50,000 or more that cannot be terminated by such Propane Group Entity or Inergy Sales on less than ninety (90) days’ notice without the payment by the Propane Group Entities or Inergy Sales of any member of the Company Group on the one hand and Seller material penalty or any Affiliate of Seller (other than any member of the Company Group) on the other handfurther payment;
(xii) all collective bargaining agreements any agreement for the purchase by any Propane Group Entity or Contracts Inergy Sales of propane, heating oil, distillates, materials, supplies, goods, services, equipment or other assets with a value in excess of $100,000 that cannot be terminated by such Propane Group Entity or Inergy Sales on less than ninety (90) days’ notice without the payment by such Propane Group Entity or Inergy Sales of any Union to which any member of the Company Group is a party; andmaterial penalty or other further payment;
(xiii) any other Contract that is material relating to the Company Group and not previously disclosed transportation or storage of propane or the products therefrom, or the provision of services related thereto (including any operation, operation servicing or maintenance Contract) in each case pursuant to this Section 3.10which any Propane Group Entity or Inergy Sales receives annual revenues or makes annual payments in excess of $100,000;
(xiv) any collective bargaining agreement to which any Propane Group Entity or Inergy Sales is a party;
(xv) except for employment agreements relating to Excluded Employees, any employment agreement with a divisional president, senior vice president or Director–Fleet/Asset Management of any Propane Group Entity;
(xvi) any Contract under which any Propane Group Entity or Inergy Sales is obligated to purchase or sell a specified volume of propane in excess of 250,000 gallons over the remaining term of such Contract, including any requirements contracts, “take-or-pay” or “ship-or-pay” Contracts;
(xvii) any Hedging Agreement;
(xviii) all licenses of Intellectual Property (A) from a Propane Group Entity or Inergy Sales to any third party and (B) to a Propane Group Entity or Inergy Sales (or a Contributor Party if utilized in or for the benefit of the Propane Business) from any third party, in each case, (1) pursuant to which any Propane Group Entity or Inergy Sales receives annual revenues or makes annual payments in excess of $100,000 and (2) excluding licenses associated with off-the-shelf software;
(xix) any Contract between any of the Propane Group Entities or Inergy Sales and any officer, director or Affiliate of any of the Propane Group Entities or Inergy Sales (other than the NRGY Entities) or any immediate family member of any of the foregoing; and
(xx) any Contract not specified above pursuant to which any Propane Group Entity or Inergy Sales has an obligation (payment or otherwise) exceeding $500,000.
(b) Each Material Except as set forth on Schedule 3.15(b) of the Contributor Disclosure Schedule, each Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract has been made available to Acquirer, subject to the Clean Team Agreement, and (i) is a valid and binding on obligation of the Company Propane Group member Entity or Inergy Sales that is party thereto and (ii) is in full force and effect and enforceable in accordance with its terms and is against such Propane Group Entity or Inergy Sales, as applicable, and, to the Knowledge of the Contributor Parties, the other parties thereto, except in full force and effect. each case, as enforcement may be limited by Creditors’ Rights.
(c) None of Inergy Sales or the Company Propane Group member orEntities nor, to Seller’s Knowledgethe Knowledge of the Contributor Parties, any other party thereto to any Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract is in breach of default or default under (or is alleged to be breach, in breach of or default under)any material respect, or has provided or received any notice of any intention to terminate, any Material Contract. No thereunder and no event or circumstance has occurred that, that (i) with the giving of notice or lapse the passage of time or both, both would constitute an event a breach or default, in any material respect, by Inergy Sales or such Propane Group Entity or, to the Knowledge of default the Contributor Parties, any other party to any Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract, or (ii) would permit termination, modification or acceleration under any Material Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract or result in a termination thereof or would cause or permit by 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyercounterparty thereto.
Appears in 3 contracts
Sources: Contribution Agreement (Suburban Propane Partners Lp), Contribution Agreement (Inergy L P), Contribution Agreement (Suburban Propane Partners Lp)
Material Contracts. (a) Section 3.10(aFor purposes of this Agreement, a “Material Contract” means any Contract (or group of related Contracts) of the Disclosure Schedules lists each of the following Contracts of any member of to which the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation any of its Subsidiaries is a party or by which any Real Property (including without limitation, brokerage contracts) listed of their respective properties or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):assets are bound:
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that is filed or required to be cancelled filed by the member of the Company Group without penalty or without more than 90 days’ noticeas a “material contract” under Applicable Securities Laws in Canada;
(ii) all Contracts that require (A) purports to limit or otherwise restrict in any member material respect the ability of the Company Group or any of its Subsidiaries to purchase compete in any business or geographic or therapeutic area (or that, following the Arrangement, would by its total requirements of terms apply such limits or other restrictions to the Parent or its Subsidiaries), (B) grants any product exclusive rights, (C) contains a “most favored nation” or service from a third party or that contain similar provision, (D) includes any “take or pay” provisionsor “requirements” obligation, (E) otherwise purports to prohibit or limit the right of the Company or any of its Subsidiaries to develop, license, sell or distribute any products or services or (F) that purports to limit or otherwise restrict the ability of the Company or its Subsidiaries to solicit for hire or to hire any person;
(iii) all Contracts that provide for the indemnification by (A) containing any member of standstill, or similar agreement pursuant to which the Company Group or any of its Subsidiaries has agreed not to acquire assets or securities of another person, (B) containing a put, call, right of first refusal or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, or otherwise acquire or transfer, as applicable, any equity interests of any Person person or the assumption assets that have a fair market value or purchase price of any Tax, environmental more than $100,000 or other Liability of any Person;
(ivC) all Contracts that relate relating to the acquisition or disposition of any business, a material amount of stock or assets of any other Person business or any real property material assets other than in the ordinary course of business (whether by merger, sale of stock, sale of shares or assets or otherwise);
(iv) that would prevent, materially delay or materially impede the Company’s ability to consummate the Transactions;
(v) all brokerthat is between the Company or any of its Subsidiaries and any of their respective directors, distributorofficers, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which affiliates or any member person beneficially owning five percent (5%) or more of the Company Group is a partyoutstanding Common Shares;
(vi) all employment agreements and Contracts with independent contractors that involves the payment or consultants (or similar arrangements) to which any member of receipt by the Company Group is a party and which are not cancellable without material penalty or without its Subsidiaries of royalties or other amounts in consideration for rights to practice any Intellectual Property of more than 90 days’ notice$100,000 in the aggregate;
(vii) (A) for the furnishing of services or the sale of products which involves, or would reasonably be expected in the future to involve, consideration in excess of $100,000 in any 12 month period, (B) for the receipt of services by a third party or for the purchase of raw materials, commodities, supplies, products, or other personal property, which involves payment by the Company or any of its Subsidiaries of consideration in excess of $100,000 in any 12 month period or which would reasonably be expected to involve payment by the Company or any of its Subsidiaries of consideration in excess of $100,000 in any future 12 month period during the term of such agreement except for Contracts relating payments to trade receivables, all Contracts relating to indebtedness creditors in the ordinary course of business or (including, without limitation, guaranteesC) of any member of that provides for future payment obligations by the Company Groupor any of its Subsidiaries of $100,000 or more related to clinical trials of Company Pharmaceutical Products;
(viii) all Contracts with any Governmental Authority to under which any member of the Company Group or any of its Subsidiaries is a party (“Government Contracts”)lessee of, or holds or uses, any equipment, machinery, vehicle or other tangible personal property owned by a third person which requires future annual payments in excess of $100,000;
(ix) all Contracts that limit pursuant to which the Company or purport any of its Subsidiaries has entered into a partnership, joint venture, collaboration or other similar arrangement with any person (other than intercompany agreements);
(x) for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $100,000;
(xi) pursuant to limit which the ability Company or any of its Subsidiaries agrees not to make use of any member material right in any Intellectual Property owned by the Company or any of its Subsidiaries;
(xii) pursuant to which the Company or any of its Subsidiaries has outstanding indebtedness, or provides a guarantee in a principal amount in excess of $100,000 other than indebtedness to trade creditors incurred in the ordinary course of business;
(xiii) containing a settlement with respect to a Proceeding (whether commenced or threatened in writing) of any nature;
(xiv) which requires future payments by the Company or any of its Subsidiaries in excess of $100,000 per annum containing “change of control” or similar provisions (whether or not such payments or benefits are contingent upon the occurrence of any other event);
(xv) under which the Company or its Subsidiaries have received, or are entitled to receive, payment from any person for use in the research or development of any Company Pharmaceutical Product;
(xvi) under which the Company is obligated to make future payments of over $100,000 for the research, development, or commercialization of any Company Pharmaceutical Product;
(xvii) pursuant to which the Company, any of its Subsidiaries or any other party thereto has material continuing obligations, rights or interests relating to the research, development, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to any Company Pharmaceutical Product;
(xviii) any Company Lease;
(xix) any employment, contractor or consulting Contract with any Company employee with annual compensation in excess of Cdn$200,000;
(xx) any Contract that provides for any change of control, severance or termination pay or other compensation or benefits related to termination of employment or services to the Company or any of its Subsidiaries;
(xxi) any collective bargaining agreement or other similar Contract with a union, works council, trade union or other labor relations entity;
(xxii) any Contract with any current or former officer or director of the Company Group or any of its Subsidiaries; or
(xxiii) any Contract of which the Company has knowledge to compete which any employee, consultant or independent contractor of the Company or a Subsidiary is bound that in any manner purports to (A) restrict such employee’s, consultant’s or independent contractor’s freedom to engage in any line of business or activity or to compete with any other Person, or (B) assign to any other Person such employee’s, consultant’s or in independent contractor’s rights to any geographic area or during any period of time;
(x) any Contracts Intellectual Property that relate to which any member the business of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10its Subsidiaries.
(b) Section 13(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound, and identifies each subsection of Section 13(a) that describes such Material Contract. The Company has delivered or made available to the Parent true, correct and complete copies of the Material Contracts, including all amendments, supplements and modifications thereto. Each of the Material Contract Contracts is valid and binding on the Company Group member or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto in accordance with its terms and is in full force and effect. None of the Company Group member Company, any of its Subsidiaries or, to Seller’s Knowledgethe knowledge of the Company, any other party thereto party, is in breach of or default under (or is alleged to be in breach of of, or default under), or has provided or received in any notice of any intention to terminatematerial respect, any Material Contract. No , and no event or circumstance has occurred that, that with notice or lapse of time or both, both would constitute an event such a breach or default thereunder in any material respect by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other party thereto. Neither the Company nor any of its Subsidiaries has received any written notice or other communication regarding any actual or possible violation or breach of or default under under, or intention to cancel or modify, any Material Contract or result in Contract.
(c) Section 13(c) of the Company Disclosure Letter contains a termination thereof or would cause or permit the acceleration or other changes complete and accurate list of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerDesignated Contracts.
Appears in 3 contracts
Sources: Acquisition Agreement, Acquisition Agreement, Arrangement Agreement (Ym Biosciences Inc)
Material Contracts. (a) Section 3.10(a) As of the Disclosure Schedules lists each of the following Contracts of any member of Agreement Date, the Company Group (such Contracts, together with all Contracts concerning the occupancy, management is not a party to or operation of bound by any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):Contract:
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K of the Company Group without penalty or without more than 90 days’ noticeSEC;
(ii) all Contracts that require contains any member non-competition or other agreement that limits the ability of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group its Subsidiaries to compete in any line of business or with any Person or business, in any geographic area or with any person;
(iii) that creates any partnership, joint venture or similar entity with respect to any material business of the Company and its Subsidiaries, taken as a whole;
(iv) that would, individually or in the aggregate, prevent, materially delay or materially impede the Company’s ability to consummate the Transactions;
(v) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for indebtedness in excess of $1,000,000, other than intercompany agreements;
(vi) that is a written contract (other than this Agreement) for the sale of any of its assets after the Agreement Date in excess of $1,000,000, other than in the ordinary course of business consistent with past practice;
(vii) under which the Company and the Company’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $1,000,000 during any period the current or a subsequent fiscal year;
(viii) containing a right of timefirst refusal, right of first negotiation or right of first offer in favor of a party other than the Company or its Subsidiaries;
(ix) that obligates the Company to file a registration statement under the Securities Act of 1933 which filing has not yet been made; or
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material an interest rate, equity or other swap or derivative instrument. Each such contract described in clauses (i)-(x) is referred to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any herein as a “Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.”
Appears in 3 contracts
Sources: Merger Agreement (COV Delaware Corp), Merger Agreement (Ev3 Inc.), Merger Agreement (Covidien PLC)
Material Contracts. (a) Section 3.10(aExcept for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the Disclosure Schedules lists each date of this Agreement (the following Contracts of any member of “Contracts”) filed as exhibits to the Company Group SEC Reports or (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contractsiii) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements as set forth in Section 3.12(b3.15(a) of the Company Disclosure SchedulesLetter (such Contracts collectively, being the “Material Contracts”):), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:
(i) each any Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that is required to be cancelled filed by the member Company pursuant to Item 15 of Form 10-K under the Company Group without penalty or without more than 90 days’ noticeExchange Act;
(ii) all Contracts that require any member Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company Group to purchase its total requirements or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any product Indebtedness between or service from a third party or that contain “take or pay” provisionsamong any of the Company and any Company Subsidiary;
(iii) all Contracts any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that provide for is material to the indemnification by any member business of the Company Group of any Person or and the assumption of any Tax, environmental or other Liability of any PersonCompany Subsidiaries taken as a whole;
(iv) all Contracts that relate relating to the acquisition purchase or disposition sale of any business, a material amount Shares or other securities of stock or assets of any other Person the Company or any real property (whether by merger, sale Company Subsidiary that has a fair market value or purchase price of stock, sale of assets more than US$1,000,000 under which there are material rights or otherwise)obligations outstanding;
(v) all brokerany Contract that limits, distributoror purports to limit, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member the ability of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group Subsidiary to compete in any material line of business or with any Person person or entity or in any geographic area or during any period of time;
(xvi) any Contracts to which any member Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company Group is a party that provide for or any joint ventureof its wholly owned Company Subsidiaries, partnership or similar arrangement by any member prohibits the pledging of the capital stock of the Company Groupor any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(xivii) all Contracts between any Contract providing for any indemnification, earn-out, installment or among other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any member Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company Group on and the one hand and Seller Company Subsidiaries, taken as a whole, pursuant to which the Company or any Affiliate of Seller the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than any member license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partybusiness); and
(xiiix) any other Contract that is material providing for any change of control or similar payments to the Company Group and not previously disclosed pursuant to this Section 3.10a third party in excess of US$1,000,000.
(b) Each Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms or a Company Subsidiary and is in full force and effect. None , subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the Company Group member ordate of this Agreement, to Seller’s Knowledgethe knowledge of the Company, any no other party thereto is in material breach of or default under (or is alleged to be in breach of violation of, or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No ; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event or circumstance has occurred that, with notice or lapse exists that could give rise to any claim of time or both, would constitute an event of material default under any Material Contract or result Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in a termination thereof or would cause or permit the acceleration or other changes of writing from any right or obligation or the loss of person that such person intends to terminate any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 3 contracts
Sources: Merger Agreement (Full Alliance International LTD), Merger Agreement (Yongye International, Inc.), Merger Agreement (Morgan Stanley)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member 2.19 of the Company Group Disclosure Schedule contains a complete list of all material contracts (such Contractswritten or oral), together with all Contracts concerning plans, undertakings, commitments or agreements to which the occupancy, management Company or operation any of its subsidiaries is a party or by which any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of them is bound as of the Disclosure Schedules and all Company IP Agreements set forth in date of this Agreement.
(b) Section 3.12(b) 2.19 of the Company Disclosure Schedules, being “Material Contracts”):Schedule contains a complete and accurate list of the following:
(i) each Contract involving aggregate consideration promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the lending of money, whether as borrower, lender or guarantor (excluding trade payables or receivables arising in excess the ordinary course of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ noticebusiness);
(ii) all Contracts that require any member contracts or agreements containing covenants limiting the freedom of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets its subsidiaries or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts affiliates to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete engage in any line of business or compete with any Person person or in operate at any geographic area or during any period of timelocation;
(xiii) change in control or similar arrangements with any Contracts officers, employees or agents of the Company that will result in any obligation (absolute or contingent) of the Company or any of its subsidiaries to make any payment to any officers, employees or agents of the Company following either the consummation of the transactions contemplated hereby, termination of employment, or both (other than as set forth in Section 2.10(e) of the Company Disclosure Schedule);
(iv) labor contracts;
(v) license, consent, royalty and other agreements concerning Intellectual Property (as defined below) (other than agreements with guides and other providers of content entered into in the ordinary course of business);
(vi) distribution and syndication partnerships or arrangements;
(vii) joint venture or partnership agreements or joint development or similar agreements pursuant to which any member third party is entitled to develop any products on behalf of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member its subsidiaries (other than agreements with guides and other providers of content entered into in the Company Groupordinary course of business);
(xiviii) all Contracts between any contract or among any member agreement for the acquisition, directly or indirectly (by merger or otherwise), of the Company Group on the one hand and Seller or any Affiliate of Seller material assets (other than any member inventory) or capital stock of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partyanother person; and
(xiiiix) contracts or agreements involving the issuance or repurchase of any other Contract that is material to capital stock of the Company Group or any of its subsidiaries (other than the Stock Plans and not previously disclosed pursuant the ESPP and the Company's repurchase rights with respect to this Section 3.10Company Common Stock issued in connection with any of the foregoing).
(bc) Each Material Contract is valid For the purpose of this Agreement, the term "CONTRACTS" shall mean all of the contracts (written or oral), plans, undertakings, commitments and binding on the Company Group member party thereto agreements are, or are required to be, contained in accordance with its terms and is in full force and effect. None Section 2.19 of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material ContractDisclosure Schedule. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete True and correct complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) the written Contracts identified on Section 2.19 of the Company Disclosure Schedule have been delivered or made available to BuyerParent.
Appears in 2 contracts
Sources: Merger Agreement (About Com Inc), Merger Agreement (About Com Inc)
Material Contracts. (a) Section 3.10(a) As of the Disclosure Schedules lists date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract (each Contract of the following Contracts type described in this Section 4.11(a) to which the Company or any of any member its Subsidiaries is a party to or bound by as of the date of this Agreement or to which the Company Group (such Contracts, together or any of its Subsidiaries is a party to or bound by and that has been filed with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of SEC prior to the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, date hereof being referred to herein as a “Material ContractsContract”):
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that is or will be cancelled required to be filed by the member Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K under the Company Group without penalty or without more than 90 days’ noticeSecurities Act and is not already so filed;
(ii) all Contracts that require limits or purports to limit in any member material respect either the type of business in which the Company Group to purchase or any of its total requirements Affiliates may engage or the manner or locations in which any of them may so engage in any product or service from a third party or that contain “take or pay” provisionsbusiness;
(iii) all Contracts that provide for includes any “most favored nations” terms and conditions (including with respect to pricing), any exclusive dealing arrangement, any arrangement that grants any right of first refusal, right of first offer or similar right, any area of mutual interest clause or similar clause or any other term, condition or clause that, in the indemnification by case of each of the foregoing, individually or in the aggregate, limits or purports to limit in any member material respect the ability of the Company Group or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any Person material assets or business (excluding, in respect of each of the assumption of any Taxforegoing, environmental or other Liability of any Personcustomary joint operating agreements);
(iv) all Contracts that relate creates a partnership (other than a Tax partnership), joint venture, strategic alliance or similar arrangement with respect to the acquisition or disposition of any business, a material amount of stock business or assets of any other Person or any real property (whether by mergerthe Company and its Subsidiaries, sale of stock, sale of assets or otherwise)taken as a whole;
(v) all brokerthat obligates the Company or any of its Subsidiaries to make any loans, distributoradvances or capital contributions to, dealeror investments in, manufacturer’s representativeany person other than (A) advances for expenses required under customary joint operating agreements and customary advances to operators of Oil and Gas Interests not covered by a joint operating agreement or (B) any loan or capital contribution to, franchiseor investment in, agency(1) the Company or one of its wholly owned Subsidiaries, sales promotion(2) any person (other than any officer, market research, marketing consulting and advertising Contracts to which any member director or employee of the Company Group or any of its Subsidiaries) that is a partyless than $25 million to such person or (3) to any officer, director or employee of the Company or any of its Subsidiaries that is less than $1 million to such officer, director or employee;
(vi) all employment agreements and Contracts with independent contractors that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or consultants other agreement (or similar arrangements) to which any member of other than those solely between the Company Group is a party and which are not cancellable without material penalty its Subsidiaries) providing for or without more than 90 days’ noticeguaranteeing indebtedness in excess of $50 million individually;
(vii) except for Contracts relating that is an acquisition agreement, asset purchase, stock purchase or other similar agreement pursuant to trade receivables, all Contracts relating which (A) the Company reasonably expects that it or any of its Subsidiaries is required to indebtedness pay total consideration (including, without limitation, guaranteesincluding assumption of debt) after the date of this Agreement in excess of $50 million or (B) any member other person has the right to acquire any assets of the Company Groupor any of its Subsidiaries (or, after giving effect to the consummation of the Offer or the Merger, Parent or any of its Subsidiaries) or any interests therein after the date of this Agreement with a purchase price of more than $50 million;
(viii) all Contracts with any Governmental Authority to which any member of that is an agreement providing for the sale by the Company Group is or any of its Subsidiaries of Hydrocarbons that (A) has a party remaining term of greater than 60 days and does not allow the Company or such Subsidiary to terminate it without penalty on 60 days’ notice or less or (B) contains a “Government Contracts”)take-or-pay” clause or any similar material prepayment or forward sale arrangement or obligation (excluding “gas balancing” arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor;
(ix) all Contracts that limit provides for a call or purport option on production, or acreage dedication to limit the ability of any member a gathering, transportation or other arrangement downstream of the Company Group to compete wellhead, covering in any line excess of business or with any Person or 20 MMcf (or, in any geographic area or during any period the case of timeliquids, in excess of 750 barrels) of the Company’s and its Subsidiaries’ Hydrocarbons per day (calculated on a yearly average basis);
(x) any Contracts that is a treatment, gathering, processing or transportation agreement to which any member of the Company Group or any of its Subsidiaries is a party that provide for any joint ventureinvolving the treatment, partnership gathering, processing or similar arrangement by any member transportation of more than 50 MMcf (or, in the Company Groupcase of liquids, in excess of 500 barrels) of Hydrocarbons per day (calculated on a yearly average basis);
(xi) all Contracts between that is a joint development agreement, exploration agreement, participation or among any member program agreement or similar agreement (excluding, in respect of each of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of foregoing, customary joint operating agreements) that contractually requires the Company Group) on and its Subsidiaries to make expenditures that would reasonably be expected to be in excess of $100 million in the other handaggregate during the 12-month period following the date of this Agreement;
(xii) all that is a collective bargaining agreement;
(xiii) that involves or could reasonably be expected to involve aggregate payments by or to the Company and/or its Subsidiaries in excess of $50 million in any 12-month period, except for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of 60 days or less, and excluding joint operating agreements and production sales Contracts;
(xiv) that is an Oil and Gas Lease that contains express provisions (A) obligating the Company or Contracts with any Union Subsidiary to drill ▇▇▇▇▇, pursuant to which the Company or any member Subsidiary would reasonably be expected to be required to expend $25 million on any individual Oil and Gas Lease or $200 million in the aggregate on all obligations under Oil and Gas Leases, (B) establishing bonus obligations in excess of $10 million that were not satisfied at the time of leasing or signing, (C) requiring payments or providing for a change in terms upon a change in control of the Company Group lessee or (D) providing for a fixed term, even if there is a partystill production in paying quantities; and
(xiiixv) any other Contract that is a settlement or similar agreement with any Governmental Entity or Order or consent of a Governmental Entity to which the Company or any of its Subsidiaries is subject involving future performance by the Company or any of its Subsidiaries that is or would reasonably be expected to be material to the Company Group and not previously disclosed pursuant to this Section 3.10its Subsidiaries, taken as a whole.
(b) Each Except as, individually or in the aggregate, would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, each Material Contract is a valid and binding on obligation of the Company Group member or its Subsidiaries (to the extent they are parties thereto or bound thereby), is in full force and effect and enforceable against the Company or its Subsidiaries and, to the Knowledge of the Company, each other party thereto thereto, in accordance with its terms (subject to the Bankruptcy and is Equity Exception). Except for breaches, violations or defaults that would not reasonably be expected to be, individually or in full force the aggregate, material to the Company and effect. None its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)a Material Contract, has violated any provision of, or has provided taken or received failed to take any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred thatact which, with notice or without notice, lapse of time time, or both, would constitute an event a default under the provisions of default such Material Contract, and neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Material Contract or, as of the date of this Agreement, of an intention by any counterparty (other than the Company or result any of its Subsidiaries) to cancel, terminate or amend in a termination thereof any material respect or would cause or permit the acceleration or other changes of not renew any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 2 contracts
Sources: Merger Agreement (Petrohawk Energy Corp), Merger Agreement (BHP Billiton LTD)
Material Contracts. (a) Section 3.10(aSchedules 2.15(a)(i) through (xx) of the Company Disclosure Schedules lists Letter set forth a list of each of the following Contracts of any member of to which the Company Group is a party, in each case identified by the applicable sub-section (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each any Contract involving providing for payments by or to Seller in the period since January 1, 2008 in an aggregate consideration in excess amount of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty 10,000 or without more than 90 days’ noticemore;
(ii) all Contracts that require any member of Contract with any advertiser or agency for the Company Group to purchase its total requirements purchase, licensing, or sale of any product Company Products or service from a third party other advertising or that contain “take services, including ad insertion orders, click through agreements, or pay” provisionsother purchasing arrangements;
(iii) all Contracts that provide for any Contract with any publisher with respect to the indemnification by publication or display of Company Products or other advertising, and any member Contract granting any third party the right to market or sell any Company Products, or relating to the advertising or promotion of the business of the Company Group of or pursuant to which any Person or third parties advertise on any websites operated by the assumption of any Tax, environmental or other Liability of any PersonCompany;
(iv) all (1) any joint venture Contract, (2) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons (other than Contracts with Publishers identified in response to Section 2.15(a)(ii) or (3) any Contract that relate involves the payment of royalties to the acquisition or disposition 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)Person;
(v) all brokerany Contract for or relating to the employment or service of any director or officer or any other type of Contract with any of its directors or officers, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of as the Company Group is a partycase may be;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) any agreement pursuant to which any member other party is granted exclusive rights or “most favored party” rights of any type or scope with respect to any of the Company Group is a party and which are not cancellable without material penalty Products or without more than 90 days’ noticeCompany Intellectual Property, or containing any non-competition covenants or other restrictions relating to the Company Products or Company Intellectual Property; or that limits the freedom of the Company to engage or participate, or compete with any other Person, in any line of business, market or geographic area with respect to the Company Products or Company Intellectual Property, or to make use of any Company Intellectual Property Rights;
(vii) except for Contracts relating other than “shrink wrap” and similar generally available commercial end-user licenses to trade receivablessoftware that have an individual acquisition cost of $1,000 or less, all licenses, sublicenses and other Contracts relating to indebtedness (includingwhich Seller is a party and pursuant to which Seller acquired or is authorized to use any Third Party Intellectual Property Rights used in the development, without limitation, guarantees) of any member marketing or licensing of the Company GroupSeller Products;
(viii) all Contracts with any Governmental Authority license, sublicense or other Contract to which Seller is a party and pursuant to which any member of the Person is authorized to use any Company Group is a party (“Government Contracts”)Intellectual Property;
(ix) all Contracts that limit any license, sublicense or purport other Contract pursuant to limit which Company has agreed to any restriction on the ability right of Company to use or enforce any member of the Company Group Owned Intellectual Property Rights or pursuant to compete which Company agrees to encumber, transfer or sell rights in any line of business or with respect to any Person or in any geographic area or during any period of timeCompany Owned Intellectual Property Rights;
(x) any Contracts relating to which any member the membership of, or participation by, the Company in, or the affiliation of the Company Group is a party that provide for with, any joint venture, partnership industry standards group or similar arrangement by any member of the Company Groupassociation;
(xi) all Contracts between or among any member Contract providing for the development of any of the any software, technology or Intellectual Property Rights, independently or jointly, either by or for Company Group on the one hand and Seller or any Affiliate of Seller (other than any member employee invention assignment agreements and consulting agreements with Authors on Company’s standard form of the Company Group) on the other handagreement, copies of which have been made available to Acquirer’s counsel);
(xii) all collective bargaining agreements any confidentiality, secrecy or Contracts non-disclosure Contract other than any such Contract entered into by Seller in the ordinary course of business consistent with any Union to which any member of the Company Group is a party; andpast practice;
(xiii) any Contract to license or authorize any third party to manufacture or reproduce any of the Company Products or Company Intellectual Property;
(xiv) any agreement containing any support, maintenance or service obligation or cost on the part of Company;
(xv) any settlement agreement;
(xvi) any Contract pursuant to which rights of any third party are triggered or become exercisable, or under which any other consequence, result or effect arises, in connection with or as a result of the execution of this Agreement or the consummation of the Merger or other transactions contemplated hereunder, either alone or in combination with any other event;
(xvii) any Contract pursuant to which the Company agrees to provide any Intellectual Property or other indemnity that is material not capped at the fees paid or payable to the Company;
(xviii) any Contract or plan (including any stock option, merger and/or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Group and not previously Capital Stock or any other securities of the Company or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor, except for the repurchase rights disclosed pursuant to this Section 3.10on Schedule 2.2(a) of the Company Disclosure Letter;
(xix) any Contract with any labor union or any collective bargaining agreement or similar contract with its employees;
(xx) any Contract with any Governmental Entity, any Company Authorization, or any Contract with a government prime contractor, or higher-tier government subcontractor, including any indefinite delivery/indefinite quantity contract, firm-fixed-price contract, schedule contract, blanket purchase agreement, or task or delivery order (each a “Government Contract”).
(b) Each Material Contract is valid and binding on Unless otherwise provided in Section 2.15(b) of the Company Group member party thereto Disclosure Letter, all Material Contracts are in accordance with its terms written form. The Company has performed all of the obligations required to be performed by it and, subject to compliance by third parties, is entitled to all benefits under, and is not alleged to be in default in respect of, any Material Contract. Each of the Material Contracts is in full force and effect, subject only to the effect, if any, of applicable bankruptcy and other similar laws affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies. None There exists no default or event of default or event, occurrence, condition or act, with respect to the Company Group member oror to the Company’s knowledge, with respect to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)contracting party, or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred thatwhich, with notice or the giving of notice, the lapse of time or boththe happening of any other event or condition, would constitute an reasonably be expected to (i) become a default or event of default under any Material Contract or result (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in a termination thereof delivery schedule under any Material Contract, (C) the right to accelerate the maturity or would cause performance of any obligation of the Company under any Material Contract, or permit (D) the acceleration right to cancel, terminate or modify any Material Contract. The Company has not received any notice or other changes communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Contract. The Company has no Liability for renegotiation of any right or obligation or the loss of any benefit thereunderGovernment Contracts. Complete Correct and correct complete copies of each all Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) Contracts have been made available to BuyerAcquirer prior to the Agreement Date.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Exponential Interactive, Inc.)
Material Contracts. (a) Section 3.10(a) 2.19 of the Company Disclosure Schedules lists each Letter contains a complete list of all Contracts (other than Company Employee Plans) to which the Company or any Company Subsidiary is a party to or bound, on the one hand, and a third party is a party to or bound, on the other hand, and that fall within any of the following Contracts of any member of the Company Group categories (such Contractseach, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being a “Material ContractsContract”):
(ia) each Contract with a customer or distributor for the sale or license by the Company or any Company Subsidiary of materials, supplies, goods, products, services, technology or other assets involving annual payments to the Company and the Company Subsidiaries in excess of $500,000;
(b) each Contract with a supplier or other vendor for the purchase or license by the Company or any Company Subsidiary of materials, supplies, goods, products, services, technology or other assets involving annual payments by the Company or the Company Subsidiaries in excess of $500,000;
(c) each Contract involving aggregate consideration the exclusive license of Intellectual Property owned by the Company or any Company Subsidiary not terminable at the Company’s or Company Subsidiary’s election;
(d) each Contract, other than any Contract listed in Section 2.9 of the Company Disclosure Letter, (i) which limits or restricts the ability of the Company or any Company Subsidiary to engage or to compete in any line of business or with any Person generally or in any geographic area, or (ii) which could reasonably be expected to so limit the freedom of the Company or any Affiliate after the Effective Time based solely on facts attributable to the Company or its Affiliates immediately prior to the Effective Time;
(e) each lease (whether of real or personal property) providing for annual rentals in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice50,000;
(iif) all Contracts that require any member of the Company Group to purchase its total requirements of any product each partnership, joint venture or service from a third party other similar agreement or that contain “take or pay” provisionsarrangement;
(iiig) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate each Contract relating to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property business (whether by merger, sale of stock, sale of assets or otherwise)) which has any outstanding material obligation owed by or to the Company or any Company Subsidiary;
(vh) all brokereach Contract relating to Indebtedness or the deferred purchase price of property (in each case, distributorwhether incurred, dealerassumed, manufacturerguaranteed, or secured by any asset), except any such Contract with an aggregate outstanding principal amount not exceeding $50,000 and which may be prepaid at the Company’s representativeor Company Subsidiary’s election on not more than 30 days notice;
(i) any development or collaboration Contract for development of products or services for the Company or any of the Company Subsidiaries requiring payments by the Company or any of the Company Subsidiaries in excess of $100,000;
(j) any Contract with any Affiliate of the Company (or any Company Subsidiary), franchisewith any director or officer of the Company or any Company Subsidiary, agency, sales promotion, market research, marketing consulting and advertising Contracts to which or with any “associate” or any member of the Company Group is a party“immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any such director or officer;
(vik) all any employment agreements and Contracts or consulting Contract not terminable at the option of the Company without penalty or more than 30 days notice; or
(l) any employment or consulting Contract or any other Contract with independent contractors or consultants (severance, change in control or similar arrangements, that will result in any obligation (absolute or contingent) to which any member of the Company Group is or any Company Subsidiary to make any payment as a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member result of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member transactions contemplated by this Agreement, termination of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit employment or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) both. Each such Material Contract is valid in full force and effect, and is valid, binding on and enforceable against the Company Group member or a Company Subsidiary party thereto in accordance with its terms terms, except in each case as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar Legal Requirements affecting or relating to creditors’ rights generally and is in full force and effectprinciples of equity. None of the Company Group member or, to Seller’s Knowledge, nor any other party thereto Company Subsidiary is in default under or in material breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse and to the Knowledge of time or boththe Company, would constitute an event of default under no third party to any Material Contract is in default under or result in a termination thereof or would cause or permit the acceleration or other changes material breach of any right or obligation such Material Contract. The Company or the loss Company Subsidiary party thereto has performed and is performing all material obligations required to be performed by it under the Material Contracts. The Company has not received any written notice of an intention to terminate any benefit thereunderof the Material Contracts by any of the parties to any of the Material Contracts. Complete True and correct complete copies of each the Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) Contracts have been provided or made available to BuyerAcquiror (or Acquiror’s Representatives).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Affymetrix Inc), Merger Agreement (Affymetrix Inc)
Material Contracts. (a) Section 3.10(a) As of the Disclosure Schedules lists each date of the following Contracts of any member of this Agreement, the Company Group is not party or bound by (such Contractseach, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being a “Material ContractsContract”):
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled by any contract that (A) expressly imposes any material restriction on the member right or ability of the Company Group without penalty to (1) compete with any other Person, (2) make, sell or without more than 90 days’ noticedistribute any products or services, or use, transfer or distribute, or enforce any of its rights with respect to, any of its material assets or properties or (3) acquire or dispose of the securities of any other Person, (B) contains an exclusivity or “most favored nation” clause that restricts the Business or the Company in a material manner or (C) contains any right of first refusal, right of first offer or other preemptive or similar right;
(ii) all Contracts that require any member mortgage, note, debenture, indenture, loan or credit agreement, letter of credit (whether or not drawn), reimbursement agreement, security agreement, guaranty, pledge or other agreement or instrument evidencing, or any guarantee of, Indebtedness or placing a Lien (other than a Permitted Lien) on any portion of the Company Group assets related to purchase its total requirements the Business, in an amount in excess of any product or service from a third party or that contain “take or pay” provisions$500,000 in the aggregate;
(iii) all Contracts that provide for any joint venture, partnership or limited liability company agreement or other contract relating to the indemnification by any member of the Company Group formation, creation, operation, management or control of any Person joint venture, partnership or the assumption of any Tax, environmental or other Liability of any Personlimited liability company;
(iv) all Contracts that relate any contract expressly limiting or restricting the ability of the Company to the acquisition make distributions or disposition declare or pay dividends in respect 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)their Equity Interests;
(v) any contract involving the acquisition of all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member or substantially all of the assets or Equity Interests of any Person that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by the Company Group is a partyin excess of $250,000;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeLabor Agreement;
(vii) except for Contracts relating any contract that is a settlement, conciliation or similar agreement with any Governmental Entity and pursuant to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of which the Company Groupwill have a material outstanding obligation after the date of this Agreement;
(viii) all Contracts with any Governmental Authority to which any member of contract that obligates the Company Group for more than one (1) year, is a party not terminable without penalty upon notice of ninety (“Government Contracts”)90) days or less and has total projected revenue of at least $500,000;
(ix) all Contracts any contract that limit involves a take or purport to limit the ability of any member of pay amount obligating the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of timeat least $250,000;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company GroupReal Property Leases;
(xi) all Contracts between any contract with a Material Customer or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;a Material Supplier; and
(xii) all collective bargaining agreements or Contracts with any Union contract pursuant to which any member of the Company Group (A) is granted a party; and
license to, or covenant not to be sued under, any third-party Intellectual Property (xiii“Inbound IP Licenses”) any other Contract that is material to the Company Group and Business, other than any Incidental Licenses or (B) grants to a third party a license to, or covenant not previously disclosed pursuant to this Section 3.10be sued under, any Owned Intellectual Property that is material to the Business, other than any Incidental Licenses.
(b) Each Notwithstanding the foregoing, (i) Section 4.17(a) shall not apply to any Shared Contracts or Employee Benefit Plans and (ii) Section 4.17(a)(viii), Section 4.17(a)(ix) and Section 4.17(a)(xi) shall not apply to any purchase orders, in each case, no such contract or benefits plan shall be set forth on Schedule 4.17(a)(viii), Schedule 4.17(a)(ix), or Schedule 4.17(a)(xi), respectively.
(c) Except as would not be, individually or in the aggregate, material to the Company and the Business, taken as a whole: (i) the Company is not in breach of or default under the terms of any Material Contract; (ii) to Seller’s knowledge, no other party to any Material Contract is in breach of or default under the terms of any Material Contract, no event has occurred that, with or without notice or lapse of time, or both would constitute a breach of or default under, or give rise to a right of termination, cancellation or acceleration of any obligation under any Material Contract; and (iii) each Material Contract is a valid and binding on obligation of the Company Group member and, to Seller’s knowledge, of each other party thereto in accordance with its terms thereto, and is in full force and effect, subject to the Remedies Exceptions. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Each Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have has been made available to BuyerPurchaser.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Schlumberger Limited/Nv), Equity Purchase Agreement (ChampionX Corp)
Material Contracts. (a) Section 3.10(a4.19(a) of the Company Disclosure Schedules lists Schedule sets forth, as of the date of this Agreement, a correct and complete list of each of the following Contracts of any member of to which the Company Group (such Contractsor any of its Subsidiaries is a party, together with all Contracts concerning the occupancy, management or operation by which any of any Real Property (including without limitation, brokerage contracts) listed their respective properties or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):assets is bound:
(i) each Contract involving aggregate consideration any “material contract” (as such term is defined in excess Item 601(b)(10) of $100,000 and which, in each case, cannot be cancelled Regulation S-K promulgated by the member of the SEC) (other than any Company Group without penalty or without more than 90 days’ noticeBenefit Plan);
(ii) all Contracts any Contract that require imposes any member material restriction on the right or ability of the Company Group or any of its Subsidiaries to purchase its total requirements of compete with any product other Person or service from a third party solicit any client or that contain “take or pay” provisionscustomer;
(iii) all Contracts any Contract that provide for the indemnification by any member of obligates the Company Group of or its Subsidiaries to conduct business with any Person third party on a preferential or exclusive basis and that is material to the assumption of any TaxCompany and its Subsidiaries, environmental or other Liability of any Persontaken as a whole;
(iv) all Contracts any Contract relating to Indebtedness (other than intercompany indebtedness owed by the Company or any wholly owned Subsidiary to any other wholly owned Subsidiary, or by any wholly owned Subsidiary to the Company) of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $5,000,000 or that relate grants a Lien (other than a Permitted Lien) on properties or assets of the Company or any of its Subsidiaries;
(v) any Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $5,000,000;
(vi) any Contract that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(vii) any Contract entered into on or after January 1, 2024 that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of sale in the ordinary course of business, a material amount of stock ) or assets of any other Person or any real property business (whether by merger, sale of stock, sale of assets or otherwise);
(v) all brokeror capital stock or other equity interests of any Person, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which with any member outstanding obligations as of the Company Group is date of this Agreement, in each case with a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member value in excess of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group$5,000,000;
(viii) all Contracts with any Governmental Authority material joint venture, partnership or limited liability company agreement or other similar Contract relating to which the formation, creation, operation, management or control of any member material joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries or any organizational documents of the Company Group is a party (“Government Contracts”)Company’s wholly owned Subsidiaries;
(ix) all Contracts that limit or purport any Contract pursuant to limit the ability of any member of which the Company Group to compete or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in any line payments in excess of business or with any Person or $5,000,000 in any geographic area or during any period of timethe aggregate;
(x) any Contracts Contract relating to Program Rights under which any member of it would reasonably be expected that the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member and its Subsidiaries would make annual payments in excess of the Company Group$3,000,000 per year;
(xi) all Contracts between any network affiliation Contract (or among any member of the Company Group on the one hand and Seller similar Contract) with ABC, CBS, Fox, NBC, CW, MyNetworkTV or any Affiliate of Seller (other than any member of the Company Group) on the other handSpanish language networks;
(xii) all collective bargaining agreements or Contracts with any Union to which Contract that is a material Sharing Agreement and any member of related option agreement (other than those among the Company Group is a party; andand its Subsidiaries);
(xiii) any other Contract that is material a channel sharing agreement with a third party or parties with respect to the sharing of spectrum for the operation of two (2) or more separately owned television stations;
(xiv) any Contract relating to retransmission or distribution by any MVPD that reported more than 25,000 paid subscribers to the Company Group and not previously its Subsidiaries for May 2025 with respect to at least one Company Station; and
(xv) any Contract with an affiliate or other Person that would be required to be disclosed pursuant by the Company under Item 404(a) of Regulation S-K promulgated under the Exchange Act. All contracts of the types referred to this Section 3.10in clauses (i) through (xv) above are referred to herein as “Company Material Contracts.”
(b) Each Neither the Company nor any Subsidiary of the Company is in breach of or default in any respect under the terms of any Company Material Contract and, to the Knowledge of the Company, no other party to any Company Material Contract is in breach of or default in any respect under the terms of any Company Material Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach of or default or result in the termination of or a right of termination or cancelation thereunder, accelerate the performance or obligations required thereby, or result in the loss of any benefit under the terms of any Company Material Contract, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, each Company Material Contract (i) is a valid and binding on obligation of the Company Group member or the Subsidiary of the Company that is party thereto in accordance with its terms and of each other party thereto, and (ii) is in full force and effect, subject to the Enforceability Exceptions, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. None There are no disputes pending or, to the Company’s Knowledge, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to a Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. True and complete copies of the Company Group member or, to Seller’s Knowledge, Material Contracts and any other party material amendments thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerRepresentatives of Parent prior to the date of this Agreement, except if providing any such Contract would reasonably be expected to violate any applicable Law or such Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Tegna Inc), Merger Agreement (Nexstar Media Group, Inc.)
Material Contracts. (a) Section 3.10(a) Parent has made available to the Company true, correct and complete copies of the Disclosure Schedules lists each of the following Contracts of contracts (each, a "Parent Material Contract") to which Parent or Subsidiaries are a party or which bind or affect their respective properties or assets:
(1) any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(bContract that would be required to be filed by Parent as a "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):Securities Act or disclosed by Parent on a Current Report on Form 8-K.
(i2) each any Contract involving aggregate consideration or group of related Contracts for the purchase or lease of services, products, materials, supplies, goods, equipment, or other assets providing for either (A) annual payments by Parent in excess of $100,000, including any and all purchase orders; or (B) which give rise to anticipated receipts by the counterparty to the Contract of more than $100,000 and whichin any calendar year, in each case, case that cannot be cancelled by the member of the Company Group without penalty or without terminated on more than 90 ninety (90) days’ notice' notice without payment by Parent of a penalty in excess of $100,000;
(ii3) all Contracts that require any member Contract involving the obligation of Parent to sell products or services pursuant to which the Company Group aggregate payments to purchase its total requirements become due to Parent exceeds $100,000 annually.
(4) any option, license, franchise or similar Contract.
(5) any employment, severance, retention, change in control or similar Contract with any current or former director, officer or employee with the title of any product vice-president or service from a third party higher of Parent in respect of which ▇▇▇▇▇▇ has or that contain “take or pay” provisionscould reasonably be expected to have ongoing payment obligations after the Closing Date;
(iii6) all Contracts any Contract containing provisions that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of Parent or any member of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of the Company Group or any of its Subsidiaries, including the Surviving Company and its Subsidiaries) to compete in any line of business or with any Person or in any geographic area area, or during to sell, supply or distribute any period of timeParent's services or products (including any non-compete, exclusivity, "most-favored-nation" or similar requirements) or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of so competing or engaging;
(x7) except for arrangements entered into solely among wholly owned Subsidiaries of Parent, any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material relates to Indebtedness having an outstanding principal amount in excess of $1,000,000 or conditional sale arrangements, the Company Group sale, securitization or servicing of loans or loan portfolios, in each case, in connection with which the aggregate actual contingent obligations of Parent and not previously disclosed pursuant to this Section 3.10its Subsidiaries under such contract are greater than $1,000,000.
(b) Each Parent Material Contract is valid and binding on Parent or the Company Group member Subsidiary of Parent that is a party thereto in accordance with its terms and, to the Knowledge of Parent, each other party thereto, and is in full force and effect and enforceable in accordance with its terms, except to the extent enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors' rights generally, and to general equitable principles, and unless expired or terminated in accordance with its terms. None Parent, its Subsidiaries and, to the Knowledge of the Company Group member Parent, each other party thereto, have performed and complied with all obligations required to be performed or complied with by them under each Parent Material Contract. There is no default under any Parent Material Contract by Parent or any of its Subsidiaries or, to Seller’s Knowledgethe Knowledge of Parent, by any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)party, or has provided or received any notice of any intention to terminate, any Material Contract. No and no event or circumstance has occurred that, that with notice or the lapse of time or both, the giving of notice or both would constitute an event a default thereunder by Parent or any of default under its Subsidiaries or, to the Knowledge of Parent, by any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyerparty thereto.
Appears in 2 contracts
Sources: Merger Agreement (American Cannabis Company, Inc.), Merger Agreement (American Cannabis Company, Inc.)
Material Contracts. (a) Except as disclosed in Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member 3.18 of the Company Group (such ContractsDisclosure Letter, together with all Contracts concerning neither the occupancy, management Company nor any of its subsidiaries or operation of any Real Property (including without limitation, brokerage contracts) listed Affiliated Entities is a party to or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
bound by (i) each Contract involving aggregate consideration any “material contract” (as such term is defined in excess item 601(b)(10) of $100,000 and whichRegulation S‑K promulgated under the Securities Act), in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts any contract that require any member of materially restricts the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale its subsidiaries of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants Affiliated Entities (or similar arrangementspurports to restrict their respective affiliates) to which any member of the Company Group is a party and which are not cancellable without material penalty from engaging or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete competing in any line of business or with any Person or in any geographic area area, or during which would so restrict the Company or any period of time;
its subsidiaries or Affiliated Entities (xor purports to restrict their respective affiliates) following a change in control of the Company, (iii) any Contracts partnership, joint venture or other similar agreement or arrangement to which any member of the Company Group or any of its subsidiaries or Affiliated Entities is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
or any of its subsidiaries or Affiliated Entities, (biv) Each Material Contract is valid and any customer contract that contains exclusivity or “most favored nation” obligations or similar restrictions binding on the Company Group member or any of its subsidiaries or Affiliated Entities, (v) any contract granting any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any of its subsidiaries or Affiliated Entities to a person other than the Company or any of its subsidiaries or Affiliated Entities, (vi) any contract (other than those related to ordinary course of business employment or incentive arrangements that are listed on Section 3.14(a) of the Company Disclosure Letter) that involves any director, executive officer or 5% or greater shareholder of the Company or any of its subsidiaries or Affiliated Entities (or, to the knowledge of the Company, any of his or her or its affiliates or associates), including all master services agreements and succession agreements involving any Affiliated Entity, (vii) any license agreement or other material agreement (other than non-exclusive license agreements entered into with customers in the ordinary course of business consistent with past practice) related to Intellectual Property (each such contract, a “Company Material Contract”). Each Company Material Contract to which the Company or any of its subsidiaries or Affiliated Entities is a party or by which they are bound is (a) a valid and binding obligation of the Company or one of its subsidiaries or Affiliated Entities, as applicable, and, to the knowledge of the Company, is in full force and effect and enforceable against the other party or parties thereto in accordance with its terms (except to the extent that any Company Material Contract expires or has expired in accordance with its terms), and (b) to the knowledge of the Company, a valid and binding obligation of the other parties thereto and is in full force and effect and enforceable against such other parties in accordance with its terms, except, in each case, as would not have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that (x) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (y) 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. None Neither the Company nor any of its subsidiaries or Affiliated Entities has received written notice from any other party to a Company Material Contract that such other party intends to terminate, not renew or renegotiate in any material respect the terms of any such Company Material Contract. Neither the Company nor any subsidiary or Affiliated Entity of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (the terms of any Company Material Contract where such breach or default would 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 alleged to be in material breach of or default under), or has provided or received any notice under the terms of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Company Material Contract where such material breach or result default would have, individually or in the aggregate, a termination thereof or 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 Company Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (IPC Healthcare, Inc.), Merger Agreement (Team Health Holdings Inc.)
Material Contracts. (a) Subsections (i) through (x) of Section 3.10(a3.16(a) of the Company Disclosure Schedules lists each of Schedule list the following Contracts types of Contracts, arrangements or understandings to which any member of the Group Company Group is a party other than any such Contract that is a Company Employee Plan or Company Employee Agreement (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements as are required to be set forth in Section 3.12(b3.16(a) of the Company Disclosure Schedules, Schedule being the “Material Contracts”):), and none of the Company or any of its Subsidiaries is a party to or bound by any Material Contracts not listed in Section 3.16(a) of the Company Disclosure Schedule:
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company pursuant to Item 4 of the Company Group without penalty or without more than 90 days’ noticeInstructions to Exhibits of Form 20-F under the Exchange Act;
(ii) all Contracts each Contract that require any member is expected, as of the date hereof, by the Company Group to purchase its total requirements involve consideration of any product or service from a third party or that contain “take or pay” provisionsmore than US$500,000, in the aggregate, over the remaining term of such Contract;
(iii) all Contracts that provide for the indemnification relating to any credit, loan or facility arrangement, guarantee or other security arrangement, or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any member of the Company Group asset of any Person or the assumption Group Company) in excess of US$500,000, other than any Tax, environmental or other Liability of such Contracts solely between any PersonGroup Companies;
(iv) all Contracts that relate to the acquisition joint venture contracts, strategic cooperation or disposition partnership arrangements, or other agreements involving a sharing of profits, losses, costs or liabilities by 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)Group Company;
(v) all brokerContracts relating to the purchase or sale of any shares or securities of, distributoror other equity interests in, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Group Company Group is a partyother than Company Equity Awards;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit limit, or purport to limit limit, in any material respect, the ability of any member of the Group Company Group to compete in any line of business or with any Person person or entity or in any geographic area or during any period of time;
(xvii) all Contracts involving any Contracts to which any member directors, executive officers or shareholders of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member holding more than 5% of the Company Groupshare capital of the Company, required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(xiviii) all Contracts between providing for any change of control payment or among similar payments to any member Third Party in excess of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partyUS$500,000; and
(xiiiix) any all other Contract that is Contracts, whether or not made in the ordinary course of business, which are material to any Group Company or the conduct of its business, or the absence of which would, individually or in the aggregate, have a Company Group and not previously disclosed pursuant to this Section 3.10Material Adverse Effect.
(b) Each Except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding on agreement, subject to the Bankruptcy and Equity Exception, and no Group Company Group member party thereto in accordance with its terms and is in full force and effect. None of the Company Group member ormaterial breach or violation of, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or any Material Contract, (ii) as of the date hereof, no Group Company has provided or received any notice of cancellation of any intention Material Contract from the other party; (iii) to terminatethe Knowledge of the Company, as of the date hereof, no other party is in material breach or violation of, or default under, any Material Contract. No ; and (iv) as of the date hereof, no Group Company has received any written claim of material default under any such Material Contract and, to the Knowledge of the Company, no fact or event or circumstance has occurred that, with notice or lapse exists that could give rise to any claim of time or both, would constitute an event of material default under any Material Contract Contract. The Company has filed with the SEC or result in a termination thereof furnished or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerParent true and complete copies of all Material Contracts, including any amendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Wang Benson Haibing), Merger Agreement (Taomee Holdings LTD)
Material Contracts. (a) Section 3.10(a) 3.11 of the Seller Disclosure Schedules lists each Schedule contains a list of the following all Contracts referred to in clauses (i) through (xv), inclusive, of any member of this Section 3.11(a) to which the Company Group is a party and which is currently in effect (such Contractseach Contract required to be disclosed hereunder, together with all Contracts concerning a “Material Contract” and, collectively, the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):), complete and accurate copies of which have been made available to Buyer:
(i) each Contract involving aggregate consideration in excess any lease (whether of real or personal property) providing for annual rentals of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty 25,000 or without more than 90 days’ noticemore;
(ii) all Contracts that require any member agreement for the purchase of materials, supplies, goods, services, development, equipment or other assets providing for annual payments by the Company Group to purchase its total requirements of any product $25,000 or service from a third party or that contain “take or pay” provisionsmore;
(iii) all Contracts that provide any sales, partnering, development or other similar agreement providing for the indemnification sale by any member of the Company Group of any Person or the assumption of any Taxproducts, environmental services or other Liability assets (other than Contracts with the Company’s customers that are not required to be disclosed pursuant to Section 3.11(c)) that provides for either (A) annual payments to the Company of any Person$25,000 or more or (B) aggregate payments to the Company of $25,000 or more;
(iv) all Contracts that relate any partnership, joint venture or other similar agreement or arrangement, other than referral agreements pursuant to which the Company has not made any referral payments since July 31, 2009;
(v) any agreement relating to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property business (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member other than the acquisition or disposition of the Company Group is a partyinventory;
(vi) all employment agreements and Contracts any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party an aggregate outstanding principal amount not exceeding $25,000 and which are may be prepaid on not cancellable without material penalty or without more than 90 thirty (30) calendar days’ noticenotice without the payment of any penalty;
(vii) except for Contracts relating any (A) option, franchise or similar agreement, (B) inbound license of Intellectual Property Rights or Technology to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Groupother than Off-the-Shelf Software or (C) outbound license of Intellectual Property Rights, Company Software or other Company Intellectual Property or sublicense of Licensed Intellectual Property by the Company, other than any non-exclusive outbound license of Company Software entered into in the ordinary course of business consistent with past practice;
(viii) all Contracts with any Governmental Authority agency, dealer, sales representative, distribution, marketing or other similar agreement involving $25,000 or more (which, in the case of referral agreements shall only include referral agreements pursuant to which any member payments received by the Company or paid by the Company for referral fees are equal to $25,000 or more), other than instances wherein an employee of the Company Group is acts as a party (“Government Contracts”)sales representative;
(ix) all Contracts any agreement that limit or purport to limit (A) limits the ability of any member freedom of the Company Group to compete in any line of business or with against any Person or in any geographic area or during any period which would so limit the freedom of timethe Company after the Closing Date or (B) provides for pricing or other contract terms on a “most favored nations” or similar basis;
(x) any Contracts agreement with (A) any Seller or the Company, (B) any Person directly or indirectly owning, controlling or holding with power to which vote, 5% or more of the outstanding voting securities of the Company, (C) any member Person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by any Seller or the Company or (D) any director or officer of the Company Group is a party that provide for or any joint venture, partnership “associates” or similar arrangement by any member members of the Company Group“immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such director or officer;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (indemnification agreements, other than any member in connection with commercial transactions or indemnification provisions in outbound licenses, in each case in the ordinary course of the Company Group) on the other handbusiness;
(xii) all collective bargaining agreements or Contracts any contract with any Union to which any member of the Company Group is a party; andGovernmental Authority;
(xiii) powers of attorney from the Company;
(xiv) confidentiality and non-disclosure agreements (whether the Company is the beneficiary or the obligated party thereunder), other than those related to commercial transactions in the ordinary course of business consistent with past practice; or
(xv) any other Contract not made in the ordinary course of business that is material to the Company Group and not previously disclosed pursuant to this Section 3.10involving payment over the life of such Contract in excess of $50,000.
(bi) Each Material Contract is a valid and binding on agreement of the Company Group member party thereto in accordance with its terms except as limited by (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Applicable Laws affecting the enforcement of creditors’ rights and (B) general rules of equity, and is in full force and effect. None , (ii) none of the Company Group member or, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto thereto, is in default or breach of or default in any material respect under (or is alleged to be in breach of or default under), or has provided or received any notice the terms of any intention such Material Contract and (iii) to terminatethe Knowledge of the Company, any Material Contract. No no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an any event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunderContract. Complete and correct accurate copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.
(c) Schedule 3.11(c) sets forth the names of each customer of the Company that represents greater than 1.0% of the revenues of the Company during the year ended December 31, 2010 and during the seven-months ended July 31, 2011. Since December 31, 2010, none of the customers listed in Schedule 3.11(c) has notified the Company in writing that it is canceling, materially reducing or otherwise terminating its business with the Company or that it intends to cancel, reduce or otherwise terminate its relationship with the Company. All agreements between the Company and each such customer set forth in Schedule 3.11(c) shall, for all purposes pursuant to this Agreement, be deemed to be a “Material Contract.”
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Ellie Mae Inc)
Material Contracts. (a) Except as set forth on Section 3.10(a) 3.22 of the Disclosure Schedules lists each Schedule, or part of day to day Business of the following Contracts of Company, neither the Company or Oceanic nor any member Subsidiary is a party to, nor are any of the Company Group Company’s, Oceanic’s or any Subsidiary’s assets bound by, any executory agreements, purchase orders (other than purchase commitments for raw materials and supplies in the ordinary course of business), bailment agreements, equipment leases, commitments, contracts, employment agreements, warranties, guarantees, understandings or other agreement (such Contractsagreements, together with all Contracts concerning any Leases, collectively the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract involving aggregate consideration which involve or may involve a payment, or delivery of assets or services, in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice50,000.00 Dollars per year;
(ii) all Contracts that require any member which are of a duration in excess of twelve (12) months from the Company Group to purchase its total requirements date of any product or service from a third party or that contain “take or pay” provisionsexecution thereof;
(iii) all Contracts that provide for to which any direct or indirect stockholder, officer, director or employee of the indemnification by Company and/or its Subsidiary or any member of the Company Group of such Person’s immediate family, or any business entity in which such Person is a partner, investor, officer or the assumption of director is a party in any Tax, environmental or other Liability of any Personcapacity;
(iv) all Contracts that relate with another Person materially limiting or restricting the ability of the Company and/or any Subsidiary to the acquisition enter into or disposition engage in any market or line 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);
(v) all brokerwhich relate to the incurrence, distributorassumption, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which surety or guarantee of any member of the Company Group is a partyIndebtedness;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) which relates to which the sale of any member of the assets of the Company Group is a party and which are not cancellable without material penalty and/or any Subsidiary other than in the ordinary course of business consistent with past practices or without more than 90 days’ notice;for the grant to any person of any preferential rights to purchase any of its assets; or
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of which creates or evidence an Encumbrance upon any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller Company’s or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements Subsidiary’s assets or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10properties.
(b) True, correct and complete copies of each of the Material Contracts (including all amendments thereto) have been delivered, or made available to Buyer. Each Material Contract is valid and binding of the Contracts set forth on Section 3.22 of the Company Group member party thereto in accordance with its terms and Disclosure Schedule is in full force and effect. None , is the legal, valid and binding obligation of the Company, Oceanic and/or any Subsidiary, enforceable against them in accordance with its terms, except as such enforceability may be limited by general enforceability exceptions, is between the Company Group member orand the counterparty named on Section 3.22 of the Disclosure Schedule, has not been amended or modified except as set forth on Section 3.22 of the Disclosure Schedule, and constitutes the entire agreement between the parties thereto with respect to Seller’s Knowledge, the subject matter thereof. Neither the Company or Oceanic nor any Subsidiary is and no other party thereto to any of the Material Contracts is in breach of or default under (or thereunder, nor is alleged to be in breach of or default under), or has provided or received there any notice of any intention to terminate, any Material Contract. No event fact or circumstance has occurred that, with respect to any of the Material Contracts which upon notice or lapse of time or both, would constitute an event of could give rise to a default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Umami Sustainable Seafood Inc.), Stock Purchase Agreement (Lions Gate Lighting Corp.)
Material Contracts. Except for the contracts, agreements and ------------------ other arrangements listed in Schedule 2.17 and contracts, agreements, or other -------- ---- arrangements that have been fully performed and with respect to which the Company has no further obligations or liabilities, the Company is not a party to or otherwise bound by (i) any agreement, instrument, or commitment that may affect its ability to consummate the transactions contemplated hereby, or (ii) any other material agreement, instrument, or commitment; including without limitation any:
(a) Section 3.10(a) agreement for the purchase, sale, lease, or license by or from it of the Disclosure Schedules lists each of the following Contracts of any member of the Company Group (such Contractsservices, together with all Contracts concerning the occupancyproducts, management or operation of any Real Property (including without limitationassets, brokerage contracts) listed requiring total payments by or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract involving aggregate consideration to it in excess of $100,000 and which50,000 in any instance, or entered into other than in each case, cannot be cancelled by the member ordinary course of the Company Group without penalty or without more than 90 days’ noticebusiness;
(iib) all Contracts that require any member of the Company Group agreement requiring it to purchase all or substantially all of its total requirements of any for a particular product or service from a third party particular supplier or that contain “take suppliers, or pay” provisionsrequiring it to supply all of a particular customer's or customers' requirements for a certain service or product;
(iiic) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental agreement or other Liability of commitment pursuant to which it has agreed to indemnify or hold harmless any Personother person;
(ivd) all Contracts that relate to the acquisition (i) employment agreement, (ii) consulting agreement, or disposition of any business, a material amount of stock (iii) agreement providing for severance payments or assets of any other Person additional rights or any real property benefits (whether by merger, or not optional) in the event of the sale or other change in control of stock, sale of assets or otherwise)it;
(ve) all brokeragreement with any current or former affiliate, distributorstockholder, dealerofficer, manufacturer’s representativedirector, franchiseor strategic partner of the Company, agency, sales promotion, market research, marketing consulting and advertising Contracts to or with any person in which any member of such affiliate is known by the Company Group is a partyto have an interest;
(vif) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by teaming agreement;
(g) agreement with any member domestic or foreign government or agency or executive office thereof or any subcontract between it and any third party relating to a contract between such third party and any domestic or foreign government or agency or executive office thereof;
(h) agreement imposing non-competition or exclusive dealing obligations on it;
(i) agreement with respect to the confidentiality of the Company's Proprietary Information (as described in Section 2.20 hereof), and the ------------ assignment to the Company of any and all rights employees of the Company Group;
(xi) all Contracts between or among any member of might have to acquire with respect to technology, inventions, developments, etc., developed in connection with this employment with the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partyCompany; and
(xiiij) any other Contract that agreement the performance of which is material reasonably likely to result in a loss to it. The Company has delivered or caused to be delivered to AC correct and complete copies of each agreement, instrument, and commitment listed in Schedule -------- 2.17, each as amended to date. Each such agreement, instrument, and commitment ---- is a valid, binding and enforceable obligation of the Company and, to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on Company's knowledge, of the Company Group member other party thereto in accordance with its terms or parties thereto, and is in full force and effect. None of The Company is not nor, to the Company's knowledge, is any other party thereto, (nor to the Company's knowledge is the Company Group member or, to Seller’s Knowledge, considered by any other party thereto is to be) in breach of or default under noncompliance with any term of any such agreement, instrument, or commitment (or nor is alleged to be in breach there any basis for any of or default underthe foregoing), except for any breach or has provided non-compliance that singly or received in the aggregate would not have a Material Adverse Effect. No claim, change order, request for equitable adjustment, or request for contract price or schedule adjustment, between the Company and any notice client, supplier or customer, relating to any agreement, instrument, or commitment listed in Schedule 2.17 is pending ------------- or, to the Company's knowledge, threatened, nor to the Company's knowledge is there any basis for any of the foregoing. No agreement, instrument, or commitment listed in Schedule 2.17 includes or incorporates any intention provision, the ------------- effect of which may be to enlarge or accelerate any of the obligations of the Company or to give additional rights to any other party thereto, or will terminate, lapse, or in any Material Contract. No event or circumstance has occurred thatother material way be affected, with notice or lapse by reason of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyertransactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Common Stock and Warrant Purchase Agreement (Prime Response Inc/De), Common Stock and Warrant Purchase Agreement (Prime Response Group Inc/De)
Material Contracts. (a) Section 3.10(aSchedule 3.17(a) of the Disclosure Schedules lists each of the following Contracts of any member of the Contract that is material to such Company Group (such Contracts, together with all Contracts concerning the occupancy, management management, or operation of any Company Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) Benefit Plans of the Disclosure Schedulessuch Company or any of its Company Subsidiaries, being the “Company Material Contracts”):), including the following Contracts with respect to such Company or any of its Company Subsidiaries:
(i) each Contract all Contracts of such Company or Company Subsidiary involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled by the member of the such Company Group or Company Subsidiary without penalty or without more than 90 30 days’ notice;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the such Company Group or Company Subsidiary of any Person or the assumption of any Tax, environmental environmental, or other Liability liability of any Person, in each case outside the ordinary course of business;
(iii) all Contracts relating to Company Intellectual Property (other than “shrink-wrap” and other generally-available end-user licenses or permissions);
(iv) all Contracts that relate relating to the acquisition or disposition Indebtedness in excess 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)$100,000;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of such Company or Company Subsidiary or any member of the Company Group their officers, managers or directors to compete in any line of business or with any Person or in any geographic area or during any period of time;
(vi) any Contract that grants any “most-favored nation” or other preferential pricing in relation to any services, products or territory or that requires such Company or Company Subsidiary to purchase a minimum quantity of goods or services or contains a right of first refusal option or similar right;
(vii) any Contract whereby such Company or Company Subsidiary grants exclusivity (limited or otherwise) to another Person, including with respect to products, markets, territories, or customers;
(viii) any Contract with an operating partner or concerning a partnership or joint venture, or any other Contract that involves a sharing of revenues, profits, losses, costs, Taxes or liabilities by or of such Company or Company Subsidiary with any other Person;
(ix) all employment-related Contracts, all consulting agreements and all Contracts for the payment of commissions or bonuses to any Person, in each case involving aggregate compensation or other payments in excess of $100,000;
(x) any Contracts to which any member consignment, distributor, dealer, manufacturer’s representative, and sales agency Contracts, in each case involving aggregate compensation or other payments in excess of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group$100,000;
(xi) all Contracts between any written or among any member unwritten communications or projections made with dispensaries or other potential customers for future supply of the Company Group on the one hand cannabis and Seller related products, in each case which contemplates aggregate revenues or any Affiliate expenditures in excess of Seller (other than any member of the Company Group) on the other hand$100,000;
(xii) all collective bargaining agreements any Contract whereby any Company provides or Contracts with any Union to which any member receives management, consulting or similar administrative services that involves aggregate compensation or other payments in excess of the Company Group is a party$100,000; and
(xiii) any settlement agreement or other Contract that is material to similar agreement in respect of any past or present proceeding during the Company Group and not previously disclosed pursuant to this Section 3.10Compliance Period involving payments in excess of $100,000.
(b) Each Company Material Contract is valid and binding on the such Company Group member party thereto or Company Subsidiary, as applicable, in accordance with its terms and is in full force and effect. None of the Neither such Company Group member ornor such Company Subsidiary, as applicable, nor, to Sellersuch Company’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Company Material Contract. No event or circumstance has occurred thatduring the Compliance Period or, to such Company’s Knowledge, is threatened, which, after the giving of notice, with notice or lapse of time time, or bothotherwise, would constitute an event of any such breach or default by such Company or Company Subsidiary or any other party under any such Company Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunderContract. Complete and correct copies of each Company Material Contract (including all modifications, amendments amendments, and supplements thereto and waivers thereunder) have been made available to BuyerVerano.
Appears in 2 contracts
Sources: Merger Agreement (Verano Holdings Corp.), Merger Agreement (Verano Holdings Corp.)
Material Contracts. (a) Section 3.10(a) The Company has delivered or otherwise made available to Newco true, correct and complete copies of all contracts and agreements in effect on the Disclosure Schedules lists each of date hereof (and all amendments, modifications and supplements thereto and all related letter agreements to which the following Contracts Company is a party affecting the obligations of any member party thereunder) to which the Company or any Company Subsidiaries is a party or by which any of its properties or assets are bound that are material to the financial condition, results of operations, business, properties, prospects or assets of the Company Group and the Company Subsidiaries taken as whole (such Contractscollectively, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all "Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
"). The Company Material Contracts shall be deemed to include all: (i) each Contract involving aggregate consideration in excess of $100,000 and whichemployment, in each caseconsulting, cannot be cancelled by the member of the Company Group without penalty non-competition, severance, golden parachute or without more than 90 days’ notice;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness contracts (including, without limitation, guaranteesany contract to which the Company is a party involving employees of the Company); (ii) licensing, merchandising or distribution agreements; (iii) contracts granting a right of any member first refusal or first negotiation; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease of material properties or assets of the Company Group;
(by merger, purchase or sale of assets or stock or otherwise) entered into since May 26, 1993 (other than the acquisition of the Brentwood, Tennessee property, which has been disposed of by the Company); (vi) contracts or agreements with any Governmental Entity; (vii) all material agreements relating to indebtedness of the Company or any Company Subsidiary or guarantees of indebtedness by the Company or any Company Subsidiary; (viii) all Contracts with any Governmental Authority to which any member noncompetition, exclusivity or other agreements restricting the ability of the Company Group is a party (“Government Contracts”);
or any Company Subsidiary to operate its business as now, or contemplated to be, conducted; (ix) all Contracts that limit agreements between the Company and any of its officers, its directors, holders of 5% of the outstanding Shares or purport to limit the ability of any member other affiliates of the Company Group to compete or any Company Subsidiary (all of which agreements are also listed in any line Section 3.15(a)(ix) of business or with any Person or in any geographic area or during any period of time;
the Company Disclosure Schedule); and (x) all commitments and agreements to enter into any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10foregoing.
(b) Each Material Contract is valid and binding on the Company Group member party thereto Except as set forth in accordance with its terms and is in full force and effect. None Section 3.15(b) of the Company Group member Disclosure Schedule:
(i) There is no default under any Company Material Contract either by the Company or, to Seller’s Knowledgethe knowledge of the Company, by any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)thereto, or has provided or received any notice of any intention to terminate, any Material Contract. No and no event or circumstance has occurred that, that with notice or the lapse of time or both, the giving of notice or both would constitute an a default thereunder by the Company or, to the knowledge of the Company, any other party, in any such case in which such default or event of default under could reasonably be expected to have a Company Material Adverse Effect.
(ii) No party to any such Company Material Contract has given notice to the Company of or result made a claim against the Company with respect to any breach or default thereunder, in any such case in which such breach or default could reasonably be expected to have a termination thereof or 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 Company Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerAdverse Effect.
Appears in 2 contracts
Sources: Transaction Agreement (Progressive Food Concepts Inc), Transaction Agreement (Harrys Farmers Market Inc)
Material Contracts. (a) Section 3.10(a) Schedule 4.19 of the Company Disclosure Schedules lists Schedule sets forth a true and complete list, as of the date hereof, of each of the following Company’s Material Contracts (true, correct and complete copies of any member which have been made available to Parent prior to the date of this Agreement, subject to the redaction of certain price, term and termination provisions of, and certain clearly marked exhibits and schedules to, such Contracts). As used in this Agreement, “Material Contract” means each Contract, written or oral, to which the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation its Subsidiaries is a party or by which any of any Real Property (including without limitation, brokerage contracts) listed their respective properties or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):assets are bound,
(i) each Contract involving aggregate consideration that is a “material contract” (as such term is defined in excess Item 601(b)(10) of $100,000 and which, in each case, cannot be cancelled by the member Regulation S-K of the Company Group without penalty or without more than 90 days’ noticeSEC);
(ii) all Contracts that require any member of involves required payments or receipts by or to the Company Group and/or its Subsidiaries in an amount in excess of $250,000, except for any such Contract that may be canceled, without material penalty or other liability to purchase the Company or any of its total requirements Subsidiaries, upon notice of any product thirty calendar days or service from a third party or that contain “take or pay” provisionsless;
(iii) all Contracts that provide for grants exclusivity, any right of first refusal or right of first offer or that limits or purports to limit the indemnification by any member ability of the Company Group or any Subsidiary of the Company to compete with or obtain products or services from any Person or the assumption own, operate, sell, transfer or otherwise dispose of any Tax, environmental material amount of assets or other Liability of any Personbusinesses or imposes similar restrictions;
(iv) all Contracts that relate to restricts the acquisition payment of dividends or disposition distributions in respect of any businesscapital stock of the Company or its Subsidiaries, a material amount or the purchase, redemption or other acquisition of stock or assets of any other Person or any real property (whether by merger, sale of such capital stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting that relates to any acquisition or divestiture by the Company or any of its Subsidiaries of a business or any assets or capital stock of a Person and advertising Contracts pursuant to which the Company or any member Subsidiary of the Company Group is a partyhas any material continuing obligation (including any material indemnification obligation or any material obligation relating to an earn-out or other similar payments);
(vi) all employment agreements and Contracts with independent contractors that (A) purports to limit in any material respect either the type of business in which the Company or consultants (or similar arrangements) to which any member Subsidiary of the Company Group is a party and (or, after the Effective Time, Parent or its Affiliates) may engage or the manner or locations in which are not cancellable without any of them may so engage in any business; (B) could require the disposition of any material penalty assets or without more than 90 days’ noticeline of business of the Company or any Subsidiary of the Company (or, after the Effective Time, Parent or its Affiliates); (C) grants “most favored nation” status that, following the Merger, would apply to Parent and/or its Affiliates; or (D) materially prohibits or limits the right of the Company or any Subsidiary of the Company (or, after the Effective Time, Parent or its Affiliates) to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property Rights;
(vii) except for Contracts relating to trade receivables, all Contracts relating that relates to indebtedness for borrowed money (including, without limitation, guarantees) including the issuance of any member debt security), any capital lease obligations, any guarantee of the Company Groupsuch indebtedness or debt securities of any other Person, or any “keep well” or other agreement to maintain any financial statement condition of another Person;
(viii) all Contracts with any Governmental Authority that would prevent or materially impair the Company’s ability to which any member of consummate the Company Group is a party (“Government Contracts”)Merger or other transactions contemplated hereby;
(ix) all Contracts that limit is any joint venture or purport partnership agreement or other similar agreement or arrangement entered into with another Person relating to limit the ability formation, creation, operation, management or control of any member of the Company Group to compete in any line of business partnership or with any Person or in any geographic area or during any period of timejoint venture;
(x) that relates to an investment in any Contracts other Person that either requires payments over the term of the investment in excess of $1,000,000 in value, whether in cash or assets, or pursuant to which any member of the Company Group is a party that provide for any joint venture, partnership or its applicable Subsidiary has the right to designate one or more members to the board of directors or similar arrangement by any member governing body of the Company Group;such Person (or its Affiliates) or other governance rights with respect to such Person (or its Affiliates); or
(xi) all Contracts between that is listed (or among any member required to be listed) in Schedule 4.15(b) of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10Disclosure Schedule.
(b) Each Except as would not reasonably be expected to have, individually or in the aggregate, a Material Contract Adverse Effect: (i) each of the Material Contracts is valid and binding on the Company Group member or its Subsidiaries, as the case may be, and, to the knowledge of the Company, each other party thereto in accordance with its terms thereto, and is in full force and effect. None of , (ii) no event has occurred with respect to the Company Group member oror any of its Subsidiaries, and neither the Company nor any of its Subsidiaries, nor to Sellerthe Company’s Knowledge, knowledge any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)a Material Contract, has violated any provision of, or has provided taken or received failed to take any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred thatact which, with notice or without notice, lapse of time time, or both, would constitute an event a default under the provisions of default such Material Contract and (iii) neither the Company nor any of its Subsidiaries has received notice from any other party to a Material Contract that it has breached, violated or defaulted under any Material Contract or result that any such party intends to terminate, or not to renew, any such Material Contract. Neither the Company nor any of its Subsidiaries is party to any Contract containing any provision or covenant limiting in a termination thereof any material respect the ability of the Company or would cause any of its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Corporation or permit any of their respective Subsidiaries) to (i) sell any products or services of or to any other Person or in any geographic region, (ii) engage in any line of business or (iii) compete with or to obtain products or services from any Person or limiting the acceleration or other changes ability of any right Person to provide products or obligation services to the Company or any of its Subsidiaries (or, after the loss consummation of the Merger, Parent, the Surviving Corporation or any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyertheir respective Subsidiaries).
Appears in 2 contracts
Sources: Merger Agreement (LoopNet, Inc.), Merger Agreement (Costar Group Inc)
Material Contracts. (a) Section 3.10(a7.12(a) of the Company Disclosure Schedules lists sets forth a true, correct and complete list of, and the Company has made available to SPAC (including written summaries of oral Contracts), true, correct and complete copies of, each Contract to which any Target Company is a party or by which any Target Company, or any of the following Contracts of any member its properties or assets, are bound (each Contract required to be set forth on Section 7.12(a) of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being a “Company Material ContractsContract”):) that:
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts contains covenants that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Target Company Group (A) to compete in any line of business or with any Person or in any geographic area or during to sell, or provide any period service or product or solicit any Person, including any non-competition covenants, employee and customer non-solicit covenants, exclusivity restrictions, rights of timefirst refusal or first offer or most-favored pricing clauses (in each case other than pursuant to confidentiality arrangements entered into in the ordinary course of business) or (B) to purchase or acquire an interest in any other Person;
(ii) relates to the formation, creation, operation, management or control of any joint venture, profit-sharing, partnership, limited liability company or other similar agreement or arrangement;
(iii) evidences Indebtedness of the type referred to in clauses (a) through (e) of the definition thereof of any Target Company having an outstanding principal amount in excess of $500,000;
(iv) involves any exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices other than those entered into in the ordinary course of business of the Target Companies on behalf of a customers or any ordinary course transactions that are settled on a daily basis;
(v) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or shares or other equity interests of any Target Company or another Person in each case with an aggregate value in excess of $1,000,000;
(vi) relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of any Target Company, its business or material assets;
(vii) by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Target Companies under such Contract or set of related Contracts of at least $3,000,000 per year or $5,000,000 over the life of such Contracts (excluding any Company Benefit Plans);
(viii) pursuant to which any Target Company has been granted from a third party any exclusive or otherwise material license, right, immunity or authorization to use or otherwise exploit any material Intellectual Property, excluding (A) Incidental Licenses, and (B) licenses for “shrink wrap”, “click wrap”, and “off the shelf” software, and (C) licenses for uncustomized software that is commercially available to the public generally on standard terms with one-time or annual license, maintenance, support and other fees of less than $100,000;
(ix) pursuant to which any Target Company has (A) acquired from any third party any ownership right to any material Intellectual Property, excluding Contributor Agreements in substantially the same form made available to SPAC without any material deviations or exclusions or (B) transferred to any third party any ownership right to any material Intellectual Property;
(x) any Contracts pursuant to which any member of the Target Company Group (A) has granted to any third party any exclusive or otherwise material license, right, immunity or authorization to use or otherwise exploit any Company Owned IP, excluding Incidental Licenses or (B) is a party that provide for restricted from using any joint venture, partnership or similar arrangement by any member of the Company GroupOwned IP;
(xi) all Contracts between obligates the Target Companies to provide continuing indemnification or among any member a guarantee of obligations of a third party after the date hereof in excess of $300,000 other than indemnities or warranties provided in the ordinary course in connection with sales of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other handCompany’s products;
(xii) all collective bargaining each employment, severance, retention, change in control or other Contract (excluding customary form offer letters and other standard form agreements or Contracts entered into in the ordinary course of business) with any Union to which any member employee or other individual independent contractor of the Company Group is a party; andor any Target Company who receives annual base cash salary of $200,000 or more;
(xiii) is a labor agreement, collective bargaining agreement, or other labor-related agreement or arrangement with any labor union, labor organization, works council or other employee-representative body;
(xiv) other than under its Organizational Documents, is between any (A) Target Company and (B) any Company Shareholder or any directors, officers or employees of a Target Company (other than any agreement described in Section 7.12(a)(xii) or any other Contract at-will employment, assignment of Intellectual Property or confidentiality arrangements entered into in the ordinary course of business) or any of their respective Affiliates or other Related Person, including all indemnification agreements;
(xv) obligates the Target Companies to make any capital commitment or expenditure in excess of $1,000,000 (including pursuant to any joint venture);
(xvi) relates to a settlement of any Action requiring payments in excess of $200,000 or under which any Target Company has outstanding obligations (other than customary confidentiality or non-disparagement obligations);
(xvii) provides another Person (other than another Target Company or any manager, director or officer of any Target Company) with a power of attorney;
(xviii) is with a Material Customer or Material Supplier; or
(xix) that is material will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company Group and not previously disclosed as an exhibit for a Form F-1 pursuant to this Section 3.10Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Each Except where the failure, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, with respect to each Company Material Contract: (i) such Company Material Contract is valid and binding on and enforceable against the Target Company Group member party thereto in accordance with its terms and, to the Knowledge of the Company, each other party thereto, and is in full force and effect. None effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions), (ii) the consummation of the Transactions will not affect the validity or enforceability of any Company Group member Material Contract, (iii) no Target Company is in breach or default, and to the Company’s Knowledge, no event has occurred that with the passage of time or giving of notice or both would constitute a breach or default by any Target Company, or permit termination or acceleration by the other party thereto, under such Company Material Contract, (iv) to the Knowledge of the Company, no other party to such Company Material Contract is in breach or default, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default by such other party, or permit termination or acceleration by any Target Company, under such Company Material Contract, (v) no Target Company has received or served written or, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any oral notice of an intention by any intention party to terminate, any such Company Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Contract to terminate such Company Material Contract or result amend the terms thereof, other than modifications in a termination thereof or would cause or permit the acceleration or other changes ordinary course of business that do not adversely affect the Target Companies and (vi) no Target Company has waived any right or obligation or the loss of rights under any benefit thereunder. Complete and correct copies of each such Company Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 2 contracts
Sources: Business Combination Agreement (Maywood Acquisition Corp.), Business Combination Agreement (Maywood Acquisition Corp.)
Material Contracts. (a) Section 3.10(a) Except for this Agreement, as of the Disclosure Schedules lists each date of the following Contracts of any member of this Agreement, neither the Company Group (such Contractsnor any of its Subsidiaries is a party to or bound by, together with all Contracts concerning the occupancyin each case other than any Company Benefit Plan, management any Contract, obligation, judgment, injunction, order or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):decree:
(i) each Contract involving aggregate consideration that would be required to be filed by the Company as a “material contract” under Section 12.2 of National Instrument 51-102 – Continuous Disclosure Obligations;
(ii) that contains any provision that materially limits or restricts (or purports to materially limit or restrict) the ability of the Company or any of its Subsidiaries to make distributions or declare or pay dividends in excess respect of $100,000 and whichtheir capital stock, partnership interests, membership interests or other equity interests, as the case may be, in each case, other than the Organizational Documents of the Company and its Subsidiaries;
(iii) other than solely among direct or indirect wholly-owned Subsidiaries of the Company, relating to the creation, incurrence, assumption or guarantee of Indebtedness of the Company and its Subsidiaries in a principal amount that exceeds $2,500,000;
(iv) that is a settlement or similar agreement with any Governmental Authority or order or consent of a Governmental Authority to which the Company or any of its Subsidiaries is subject involving future performance by the Company, its Subsidiaries or their respective Affiliates, in each case that is material to the Company and its Subsidiaries, taken as a whole;
(v) that (A) limits in any material respect either the type of business in which the Company, its Subsidiaries and their respective Affiliates may engage or the manner or locations in which any of them may so engage in any business, or (B) grants “most favoured nation” status in a manner that would materially restrict or affect the future business activity of the Company and its Subsidiaries and their respective Affiliates, in each case that is material to the Company and its Subsidiaries, taken as a whole;
(vi) that grants any rights of first refusal, rights of first negotiation or other similar rights to any person with respect to the sale of any ownership interest of the Company or its Subsidiaries or any business or assets of the Company and its Subsidiaries, taken as a whole, in each case that is material to the Company and its Subsidiaries, taken as a whole;
(vii) that obligates the Company or any of its Subsidiaries to make any (or any series of related) capital commitment or capital expenditure (excluding capitalized salaries) in excess of $2,500,000 individually after the date hereof through September 1, 2022 or $2,500,000 individually thereafter;
(viii) that requires by its terms or is reasonably likely to require the payment or delivery of cash or other consideration by or to the Company and/or its Subsidiaries in an amount having an expected value in excess of $2,500,000 in the fiscal year ending August 31, 2021 or in any fiscal year thereafter and cannot be cancelled by the member of the Company Group and/or its Subsidiaries without penalty or further payment without more than 90 180 days’ notice;
(iiix) all Contracts that require any member relates to the formation, creation, governance or control of, or the economic rights or obligations of the Company Group to purchase or any of its total requirements of Subsidiaries in, any product material joint venture, limited liability company, partnership or service from a third party or that contain “take or pay” provisionsother similar arrangement;
(iiix) all Contracts that provide for is a “market access”, “skin” or similar Contract relating to the indemnification by any member operation or allocation of the Company Group of any Person or the assumption of any Tax, environmental revenue with respect to online sports betting or other Liability of any Person;gaming; and
(ivxi) all Contracts that relate (A) relates to the acquisition acquisition, disposition or disposition similar business combination transaction of any business, assets or properties (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which (x) any material earn-out or deferred or contingent payment obligations remain outstanding or (y) a material amount of stock or assets of any other Person claim for indemnification may still be made against the Company or any real property of its Subsidiaries (excluding for breaches of representations and warranties), or (B) relates to any pending acquisition, disposition or similar business combination transaction (whether by merger, sale of stock, sale of assets or otherwise);
, in each case where the consideration is in excess of $2,500,000. Each Contract constituting any of the foregoing types of Contract (v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member whether or not listed on Section 3.26 of the Company Group Disclosure Letter) is referred to as a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government ContractsMaterial Contract”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each A true and complete copy of each Material Contract has been made available to Purchaser. Except for expirations in the ordinary course and in accordance with the terms of such Material Contract, each Material Contract is valid and binding on the Company Group member or its Subsidiaries, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with its terms thereto, and is in full force and effect, except as would not have, or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. None To the Knowledge of the Company, each Material Contract is enforceable by the Company Group member or its Subsidiaries, as applicable, in accordance with its terms, except as may be limited by the Enforceability Exceptions and except where the failure of such Material Contract to be enforceable would not have, or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There is no default under any such Material Contracts by the Company or its Subsidiaries, or, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)thereto, or has provided or received any notice of any intention to terminate, any Material Contract. No and no event or circumstance has occurred that, that with notice or the lapse of time or both, the giving of notice or both would constitute an event a default thereunder by the Company or its Subsidiaries, or, to the Knowledge of default under the Company, any other party thereto, in each case, except as would not have, or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any written notice challenging the validity or enforceability of any Material Contract or result in a termination thereof or would cause or permit except where the acceleration or other changes failure of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each such Material Contract (including all modificationsto be valid or enforceable would not have, amendments and supplements thereto and waivers thereunder) have been made available or reasonably be expected to Buyerhave, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Arrangement Agreement (Score Media & Gaming Inc.), Arrangement Agreement (Penn National Gaming Inc)
Material Contracts. (a) Section 3.10(a) 2.10 of the Company Disclosure Schedules lists each Schedule is a correct and complete list of the following currently effective Company Contracts of any member of the (each, a “Company Group (such ContractsMaterial Contract” and, together with all Contracts concerning the occupancycollectively, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all “Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(a) each Company Contract that constitutes the Company Leases and the Company Ancillary Lease Documents;
(b) each Company Contract for the purchase of materials, supplies, goods, services, equipment or other assets for annual payments by the Company or any of its Subsidiaries of, or pursuant to which in the last year the Company or any of its Subsidiaries paid, in the aggregate, $500,000 or more;
(c) each Company Contract for the sale of materials, supplies, goods, services, equipment or other assets for annual payments to the Company of, or pursuant to which in the last year the Company or any of its Subsidiaries received, in the aggregate, $500,000 or more;
(d) each Company Contract that relates to any partnership, joint venture, strategic alliance or other similar Contract;
(e) each Company Contract relating to Indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset), except for Contracts relating to Indebtedness in an amount not exceeding $500,000 in the aggregate;
(f) each Company Contract that provides for any employment, severance, retention, transaction bonus, change in control, consulting or other similar agreement between: (i) each the Company or any of its Subsidiaries, on the one hand, and (ii) any employee, director or other individual service provider of the Company or its Subsidiaries, on the other hand, other than any such Contract involving aggregate consideration that is terminable “at will” or without any obligation in excess of $100,000 and which, in each case, cannot be cancelled by on the member part of the Company Group without penalty or without more any of its Subsidiaries to make any severance, bonus, termination, change in control or similar payment or to provide any other benefit with a value in excess of $100,000 (other than 90 days’ noticebenefits required to be provided by applicable Law);
(iig) each Company Contract which by its terms limits in any respect (i) the localities in which all Contracts that require or any member significant portion of the business and operations of the Company Group to purchase its total requirements of or any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member Affiliate of the Company Group (which will include Parent after the Effective Time), or (ii) the right of the Company or any Person or Affiliate of the assumption of any Tax, environmental or other Liability of Company (which will include Parent after the Effective Time) to compete with any Person;
(ivh) all Contracts each Company Contract in respect of any Company Intellectual Property that relate provides for annual payments of, or pursuant to which in the last year the Company or any of its Subsidiaries paid or received, in the aggregate, $500,000 or more;
(i) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries;
(j) each Company Contract with any Governmental Authority;
(k) each Company Contract with (a) an executive officer or director of the Company or any of its Subsidiaries or any of such executive officer’s or director’s immediate family members, (b) an owner of more than five percent (5%) of the voting power of the outstanding capital stock of the Company, or (c) to the Knowledge of the Company, any “related person” (within the meaning of Item 404 of Regulation S-K under the Securities Act) of any such officer, director or owner (other than the Company or any of its Subsidiaries);
(l) each Company Contract that gives rise to any material payment or benefit as a result of the performance of this Agreement or any of the other Contemplated Transactions;
(m) each Company Contract relating to the acquisition or disposition of any businessmaterial interest in, a or any material amount of stock of, property or assets of the Company or any of its Subsidiaries or for the grant to any Person of any preferential rights to purchase any of its assets, other than in the Ordinary Course of Business; or
(n) any other Person each Company Contract (or group of related agreements) the performance of which requires aggregate payments to or from the Company or any real property of its Subsidiaries in excess of $500,000. The Company has delivered or made available to Parent accurate and complete (whether by mergerexcept for applicable redactions thereto) copies of all Company Material Contracts, sale of stock, sale of assets or otherwise);
(v) including all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising amendments thereto. There are no Company Material Contracts to which any member that are not in written form. Except as set forth on Section 2.10 of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) Disclosure Schedule, neither the Company nor any Subsidiary of Parent has, nor, to which any member the Knowledge of the Company, any other party to a Company Group is a party and which are not cancellable without Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material penalty terms or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) conditions of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete Material Contract in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) such manner as would permit any other Contract that is material party to cancel or terminate any such Company Material Contract, which has had or would reasonably be expected to have a Company Material Adverse Effect. As to the Company Group and not previously disclosed pursuant to its Subsidiaries, as of the date of this Section 3.10.
(b) Each Agreement, each Company Material Contract is valid valid, binding, enforceable and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect, subject to: (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies. None The consummation of the Contemplated Transactions will not (either alone or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from the Company Group member or, or the Surviving Corporation to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default Person under any Company Material Contract or result in a termination thereof give any Person the right to terminate or would cause or permit materially alter the acceleration or other changes provisions of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Company Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 2 contracts
Sources: Merger Agreement (Emmaus Life Sciences, Inc.), Merger Agreement (MYnd Analytics, Inc.)
Material Contracts. (a) Section 3.10(aExcept as set forth on Schedule 4.1(r) of the Company Disclosure Schedules lists each of the following Contracts of any member of or as disclosed in the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property Reports (including without limitationall exhibits thereto (including exhibits incorporated by reference therein)), brokerage contracts) listed neither the Company nor any of its Subsidiaries is a party to or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):bound by:
(i) each Contract involving aggregate consideration in excess any lease of personal property providing for annual rental payments of $100,000 and which, in each case, cannot be cancelled by the member 1,000,000 or more or any lease of the Company Group without penalty or without more than 90 days’ noticeany material real property;
(ii) all Contracts that require any member agreement (other than purchase orders entered into in the ordinary course of business) for the purchase of materials, supplies, goods, services, equipment or other assets (including specifically-manufactured or unique parts) the terms of which provide for aggregate payments by the Company Group to purchase and its total requirements Subsidiaries of any product $1,000,000 or service from a third party or that contain “take or pay” provisionsmore;
(iii) all Contracts that provide any sales, distribution or other similar agreement (other than purchase orders entered into in the ordinary course of business) providing for the indemnification sale by any member of the Company Group or any of any Person or the assumption its Subsidiaries of any Taxmaterials, environmental supplies, goods, services, equipment or other Liability assets that provides for aggregate payments to the Company and its Subsidiaries of any Person$1,000,000 or more;
(iv) all Contracts that relate any partnership, joint venture or other similar agreement or arrangement;
(v) any agreement relating to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property business (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors any agreement relating to indebtedness for borrowed money or consultants the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or similar arrangements) to which secured by any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeasset);
(vii) except for Contracts relating to trade receivablesany license, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of franchise or similar agreement that is not terminable by the Company Groupwithout material penalty upon ninety (90) days or less notice to the other party thereto;
(viii) all Contracts with any Governmental Authority agreement (or provision in an agreement) whose purpose is to which any member limit the freedom of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability any of any member of the Company Group its Subsidiaries to compete in any line of business or with any Person or in any geographic area and which limitation is material or during which would so limit the freedom of the Company or any period of timeits Subsidiaries after the Closing Date;
(ix) any agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of the Company or any of its Subsidiaries, (B) any Person (other than the Company and its Subsidiaries) 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by the Company or any of its Subsidiaries or (C) any director or officer of the Company or any of its Subsidiaries or any “associates” or members of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such director or officer;
(x) any Contracts material agreement to which indemnify a third party other than any member agreement entered into in the ordinary course of business consistent with past practices or any other agreement listed in any sub-section of Schedule 4.1(r) of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;Disclosure Schedules; or
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract not made in the ordinary course of business that is material to the Company Group and not previously its Subsidiaries, taken as a whole. Each agreement, contract, plan, lease, arrangement or commitment disclosed pursuant or required to this Section 3.10.
be disclosed on Schedule 4.1(r) of the Company Disclosure Schedules (beach, a “Material Contract”) Each Material Contract is a valid and binding on agreement of the Company Group member party thereto in accordance with its terms or a Subsidiary of the Company, as the case may be, and is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete True and correct complete copies of each Material Contract (including all modifications, any material modifications and amendments and supplements thereto and material waivers thereunder) have been made available to BuyerParent. Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party thereto, is in material violation of, or in material default under, nor does there exist any condition that with notice or lapse of time, or both, would cause such a material violation of or material default under, any Material Contract to which it is a party or by which it, or any of its properties or assets, is otherwise bound.
Appears in 2 contracts
Sources: Merger Agreement (Artesyn Technologies Inc), Merger Agreement (Emerson Electric Co)
Material Contracts. (a) On the date hereof, except for Contracts relating to entities, including without limitation partnership, joint venture, limited liability company, invested by but not Controlled by the Group Companies or as set forth in Section 3.10(a4.12(a) of the Disclosure Schedules lists each Schedule, none of the following Contracts of any member of the Group Company Group (such Contracts, together with all Contracts concerning the occupancy, management is a party to or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):bound by:
(i) each any Contract involving aggregate consideration in excess relating to the formation, creation, operation, management or Control of $100,000 and whicha partnership, in each casejoint venture, cannot be cancelled by the member of the Company Group without penalty limited liability company or without more than 90 days’ noticesimilar arrangement;
(ii) all Contracts that require any member Contract involving a loan (other than accounts receivable from trade debtors in the ordinary course of business) or advance to (other than travel and entertainment allowances to the Company Group to purchase its total requirements employees of any product Group Company extended in the ordinary course of business), or service from a third party or that contain “take or pay” provisionsinvestment in, any Person, of more than RMB15,000,000 in any calendar year on its face;
(iii) all Contracts that provide for the indemnification by any member of the Company Group Contract involving indebtedness or obligation (contingent or otherwise) of any Person or the assumption Group Company of any Tax, environmental or other Liability of any Personmore than RMB15,000,000;
(iv) all Contracts any Contract that relate involves, or contains restrictions with respect to, (A) payment of dividends or other distributions with respect to equity interests of any Group Company, (B) pledging of share capital of any Group Company, or (C) the issuance of a guaranty by any Group Company;
(v) any Contract that contains a put, call or similar right pursuant to which any Group Company could be required to purchase or sell, as applicable, any equity interests of any Person or material assets;
(vi) any non-competition Contract or other Contract that purports to limit, curtail or restrict the ability of any Group Company to compete in any geographic area, industry or line of business or grants exclusive rights to the counterparty thereto;
(vii) any Contract involving copyright, or any other Intellectual Property that is material to any Group Company other than those in the ordinary course of business;
(viii) any Contract that contains provisions on “most favored nations”, or rights of first refusal or similar rights over any of the Ordinary Shares, the Series A Preferred Shares and the Series B Preferred Shares;
(ix) any Contract that involves the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any Equity Securities of any Group Company, or the acquisition or disposition of any business, a material assets or business by any Group Company involving an amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more less than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of timeRMB15,000,000;
(x) any Contracts Contract pursuant to which any member Person obtains Control of the Company any Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company GroupCompany;
(xi) all Contracts between any Contract involving the waiver, compromise, or among settlement of any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;Action over RMB15,000,000; or
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is otherwise material to a Group Company. Each such Contract described above is referred to herein as a “Material Contract”, which shall include, inter alia, all of the Control Documents. Section 4.12(a) of the Disclosure Schedule contains a true, correct and complete list of all Material Contracts, and a copy of each Material Contract has been provided by the Company Group and not previously disclosed pursuant to this Section 3.10the Purchaser.
(bi) Each Material Contract is a legal, valid and binding on the obligation of each Group Company Group member that is a party thereto and, to the best knowledge of any Group Company, the other parties thereto, enforceable against them in accordance with its terms terms, in each case subject, as to enforcement of remedies, to the Bankruptcy and is in full force and effect. None Equity Exception, (ii) none of the Company Group member orCompanies nor, to Seller’s Knowledgethe best knowledge of any Group Company, any other party thereto is in material breach of or default under (or is alleged to be in breach of violation of, or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No Contract and no event or circumstance has occurred or not occurred through any Group Company’s action or inaction or, to the best knowledge of any Group Company, the action or inaction of any third party, that, with or without due notice or lapse of time or both, would constitute an event a material breach or violation of, or default under, any Material Contract, and (iii) the Group Companies have not received any written claim or notice of default default, termination or cancellation under any such Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 2 contracts
Sources: Share Subscription Agreement (9F Inc.), Share Subscription Agreement (9F Inc.)
Material Contracts. (a) Section 3.10(a) 4.15 of the Company Disclosure Schedules lists each Schedule sets forth all of the following Contracts to which the Company, the Purchased Companies or any of any member of their Subsidiaries is a party or by which it is bound under which there are continuing obligations (other than confidentiality restrictions) and other than the Company Group Plans and Contracts made after the date hereof as permitted by or in compliance with Section 6.2 (such Contractscollectively, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “"Material Contracts”):
"): (i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled by the member Contracts with any current officer or director of the Company Group without penalty Company, the Purchased Companies or without more than 90 days’ notice;
any of their Subsidiaries; (ii) all Contracts that require with any member labor union or association representing any employee of the Company Group to purchase its total requirements Company, the Purchased Companies or any of any product or service from a third party or that contain “take or pay” provisions;
their Subsidiaries; (iii) all Contracts that provide for the indemnification by pursuant to which any member party is required to purchase or sell a stated portion of the Company Group of any Person its requirements or the assumption of any Tax, environmental output from or other Liability of any Person;
to another party; (iv) all Contracts that relate to for the acquisition or disposition sale of any business, a material amount of stock or the assets of any other Person the Company, the Purchased Companies or any real property (whether by merger, sale of stock, sale their Subsidiaries other than in the Ordinary Course of assets Business or otherwise);
for the grant to any person of any preferential rights to purchase any of its assets; (v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
joint venture agreements; (vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member containing covenants of the Company Group is a party and which are Company, the Purchased Companies or any of their Subsidiaries not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person person in any geographical area or covenants of any other person not to compete with the Company, the Purchased Companies or any of their Subsidiaries in any line of business or in any geographic area geographical area; (vii) Contracts relating to the acquisition by the Company, the Purchased Companies or during any period of time;
their Subsidiaries of any operating business or the capital stock of any other person; (viii) Contracts relating to the borrowing of money; (ix) any distributor, supplier (as such term is used in the Company SEC Documents), advertising, agency or manufacturer's representative Contract; (x) agreement of guarantee, support, assumption or endorsement of, or any Contracts similar commitment with respect to which the Liability or Indebtedness of any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
other Person; (xi) all Contracts between trust indenture, mortgage, promissory note, loan agreement or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements other Contracts, other than Real Property Leases, which involve the expenditure by the Company, the Purchased Companies or Contracts with any Union to which of their Subsidiaries of more than $150,000 in the aggregate or $25,000 annually or require performance by any member of party more than one year from the Company Group is a party; and
(xiii) any other Contract that is date hereof or are otherwise material to the Company Group Company, the Purchased Companies and not previously disclosed pursuant any of their Subsidiaries taken as a whole. The Company, the Purchased Companies and their Subsidiaries have provided or made available to this Section 3.10.
(b) Each the Purchaser true and complete copies of all of the written Material Contract is valid Contracts and binding on written summaries of the Company Group member party thereto in accordance with its material terms of all of the oral Material Contracts. All of the Material Contracts and is other agreements are in full force and effecteffect and are the legal, valid and binding obligation of the Company, the Purchased Companies and/or any of their Subsidiaries, enforceable against them in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and 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). None of the Company Group member orCompany, the Purchased Companies or any of their Subsidiaries is in default in any material respect under any Material Contract, nor, to Seller’s Knowledgethe Knowledge of the Company, the Purchased Companies or any of their Subsidiaries, is any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of default thereunder in any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyermaterial respect.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Metron Technology N V), Stock and Asset Purchase Agreement (Fsi International Inc)
Material Contracts. (a) Section 3.10(a3.12(a) of the Company’s Disclosure Schedules lists each Letter sets forth a list of the following Contracts of any member of (including every amendment, modification or supplement thereto), other than the Contracts with the Major Customers, to which the Company Group (such Contracts, together with all Contracts concerning or any of its Subsidiaries is a party or by which the occupancy, management Company or operation any of its Subsidiaries or any Real Property (including without limitation, brokerage contracts) listed of their respective properties or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):assets are bound or affected:
(i) each any Contract involving aggregate consideration which materially limits or restricts or purports to materially limit or restrict the Company, any of its Subsidiaries or any of their respective Affiliates from engaging in excess any line of $100,000 and which, in each case, cannot be cancelled business operated by the member Company or any of its Subsidiaries in any jurisdiction or materially limit the freedom of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require Company, any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person Subsidiaries or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group their respective Affiliates to compete in any line of business operated by the Company or with any Person or of its Subsidiaries in any geographic area or during requiring the Company, any period of timeits Subsidiaries (other than with the Company) or any of their respective Affiliates to share any profits derived from the business of the Company or any of its Subsidiaries;
(ii) any bonds, debentures, notes, loans, credit or loan agreements or commitments, mortgages, indentures, credit facilities, or guarantees or other Contracts relating to Indebtedness involving remaining principal amounts in excess of Five Million Dollars ($5,000,000.00) in the aggregate, other than any Indebtedness in connection with the operation of the AFC Business Unit;
(iii) any independent contractor Contracts or leased or temporary employee Contracts involving in each case current or currently committed aggregate annual payments of more than Two Million Dollars ($2,000,000.00);
(iv) leases of personal property involving current or currently committed aggregate annual rent of Two Million Dollars ($2,000,000.00) or more;
(v) Contracts with a supplier or other service partner, in each case involving current or currently committed aggregate annual payments made by the Company or any of its Subsidiaries of more than Two Million Dollars ($2,000,000.00);
(vi) any Contract for capital expenditures or the acquisition of fixed assets involving current or currently committed monetary obligations in excess of Two Million Dollars ($2,000,000.00);
(vii) any Contract relating to the acquisition or disposition, directly or indirectly, of any assets (other than those fixed assets set forth in subsection (vi) above), real property or capital stock or other equity interests of another Person involving continuing obligations or liabilities of the Company or any of its Subsidiaries in excess of Two Million Dollars ($2,000,000.00);
(viii) any Contracts filed or required to be filed with the SEC pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act not otherwise disclosed pursuant to this Section 3.12;
(ix) any acquisition Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification, “earn out” or other contingent payment obligations, in each case, that would reasonably be expected to result in payments in excess of Two Million Dollars ($2,000,000.00);
(x) any Contract that (x) contains most favored customer pricing provisions (other than Contracts entered into in the ordinary course of business consistent with past practice) or (y) grants any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any Third Party, in each case under this clause (y) in a manner which any member is material to the businesses of the Company Group is a party that provide for or any joint venture, partnership or similar arrangement by any member of the Company Groupits Material Subsidiaries;
(xi) all Contracts between any Contract that creates (or among governs the operation of) a partnership, joint venture, limited liability company or other similar agreement with respect to any member material business of the Company Group on the one hand and Seller or any Affiliate of Seller (its Subsidiaries, taken as a whole, other than any member such limited liability company, partnership or joint venture that is a Subsidiary of the Company Group) on the other hand;Company; and
(xii) all collective bargaining agreements or other Contracts with any Union to which any member (not of the Company Group is a party; and
type described in subsections (xiiii) any other Contract that is material through (xi) above) individually involving in each case payments made by or to the Company Group or any of its Subsidiaries of Two Million Dollars ($2,000,000.00) or more over the remaining term of such Contract, other than any Contracts entered into in connection with the operation of the AFC Business Unit. Each Contract of the type described in subsections (i) through (xii) above, whether or not set forth in Section 3.12(a) of the Company’s Disclosure Letter, is referred to herein individually as a “Material Contract” and collectively as the “Material Contracts.” Notwithstanding anything above, the Company shall not previously disclosed pursuant be required to this set forth in Section 3.103.12(a) of the Company’s Disclosure Letter and, a “Material Contract” shall not include, any Contract that (1) is terminable upon thirty (30) days’ notice without penalty or premium, or (2) will be fully performed or satisfied at or prior to the Closing without any continuing obligations or liabilities thereunder. The Company has made available to Buyer a true, correct and complete copy of all written Material Contracts prior to the date hereof.
(b) Each Material Contract is valid and binding on (i) Neither the Company Group member party thereto in accordance with nor any of its terms and Subsidiaries has breached or is in full force and effect. None default under, or has received written notice of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided received written notice of, or received any notice to the Knowledge of the Company, knows of, the existence of any intention to terminate, any Material Contract. No event or circumstance has occurred thatcondition which constitutes, with or, after notice or lapse of time or both, would constitute an event will constitute, a breach of or default under under, any Material Contract Contract; (ii) to the Knowledge of the Company, no other party to any of the Material Contracts has breached or result is in a termination thereof or would cause or permit the acceleration or other changes default of any right of its obligations thereunder; and (iii) each of the Material Contracts is in full force and effect and is valid and binding on the Company and its Subsidiaries as a party thereto and, to the Knowledge of the Company, the other parties thereto, except in any such case for breaches, defaults or obligation failures to be in full force that have not had, and would not reasonably be expected to have, individually or in the loss of any benefit thereunder. Complete and correct copies of each aggregate, a Company Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Adesa California, LLC), Merger Agreement (Adesa Inc)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management Except for this Agreement or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements as set forth in Section 3.12(b) 3.16 of the Company Disclosure Schedules, being as of the Agreement Date, none of the Company or any of the Company Subsidiaries is a party to or bound by (each a “Company Material ContractsContract”):
(i) each any Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the Company Group without penalty or without more SEC, other than 90 days’ noticethose agreements and arrangements described in Item 601(b)(10)(iii);
(ii) all Contracts that require any member Contract with a related person (as defined in Item 404 of Regulation S-K of the Securities Act) that would be required to be disclosed in the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisionsSEC Reports but has not been disclosed;
(iii) all Contracts any Contract that provide for the indemnification by any member contains a put, call, right of first refusal or similar right pursuant to which the Company Group of or any Person Company Subsidiary could be required to purchase or the assumption of any Taxsell, environmental or other Liability of any Person;
(iv) all Contracts that relate to the acquisition offer for purchase or disposition sale 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 $1,000,000;
(iv) any Contract relating to the borrowing or lending of Indebtedness in a principal amount in excess of $500,000 (whether incurred, assumed, guaranteed or secured by any asset);
(v) all brokerany Contract that is a settlement, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting conciliation or similar agreement between the Company or any Company Subsidiary and advertising Contracts any Governmental Authority pursuant to which any member of the Company Group is or a party;Company Subsidiary will be required after the date of this Agreement to pay any material monetary obligations;
(vi) all employment agreements any Contract between the Company or any Company Subsidiary, on the one hand, and Contracts with independent contractors any third Person, on the other hand (A) materially limiting the freedom or consultants (or similar arrangements) to which any member right of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
any Company Subsidiary (viior, following the Closing, Parent or any of its Affiliates) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete engage in any line of business or to compete with any other Person or in any geographic area location or during line of business, (B) containing any period “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of time;the Company or any Company Subsidiary (or, following the Closing, Parent or any of its Affiliates) to solicit, sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person;
(vii) any Contract that requires by its terms or is reasonably expected to require the payment or delivery by the counterparty thereto of cash or other consideration to the Company or any Company Subsidiary in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024 or by the Company or any Company Subsidiary in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024 and, in each case, (A) which cannot be cancelled by the Company or such Company Subsidiary without penalty or further payment without more than sixty (60) days’ notice and (B) excluding commercially available off-the-shelf software licenses and software-as-a-service offerings, in each case entered into in the ordinary course of business consistent with past practice;
(viii) any Contract between the Company or any Company Subsidiary and a third Person (A) relating to the disposition of any assets or business of the Company and the Company Subsidiaries with a fair market value in excess of $2,000,000 or (B) relating to the acquisition of any assets or business of, or ownership interests in, any third Person with a fair market value in excess of $2,000,000, in each case of clauses (A) and (B), whether by merger, sale of stock or assets or otherwise, and that contains continuing indemnities or other material obligations or any continuing “earn-out” or other contingent payment obligation on the part of the Company or any Company Subsidiary;
(ix) any Contract between the Company or any Company Subsidiary and any third Person that establishes a joint venture, partnership or limited liability company;
(x) any Contracts Contract that by its express terms requires the Company or any Company Subsidiary, or any successor to, or acquirer of, the Company or any Company Subsidiary, to which make any member material payment to another Person as a result of a change of control of the Company Group is or any such Company Subsidiary (a party that provide for any joint venture, partnership “Change of Control Payment“) or similar arrangement by any member gives another Person a right to receive or elect to receive a Change of the Company Group;Control Payment;
(xi) all Contracts between any Contract that prohibits the declaration or among any member payment of dividends or distributions in respect of the capital stock of the Company Group on the one hand and Seller or any Affiliate Company Subsidiary, the pledging of Seller (the capital stock or other than any member equity interests of the Company Group) on or any Company Subsidiary or the other hand;issuance of any guaranty by the Company or any Company Subsidiary;
(xii) all collective bargaining agreements or any Contract (excluding in each case Contracts entered into in the ordinary course of business consistent with any Union past practice) pursuant to which any member of (a) both (i) the Company Group or any Company Subsidiary is granted a party; andlicense to, including any covenant not to sue under, any material Intellectual Property Right owned by any third party that is necessary for or used by the Company or any Company Subsidiary in their respective businesses as currently conducted, and (ii) that requires by its terms or is reasonably expected to require the payment or delivery by the Company or any Company Subsidiary in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024, or (b) both (i) the Company or any Company Subsidiary grants a third party a license to, including any covenant not to sue under, any material Company Intellectual Property and (ii) that requires by its terms or is reasonably expected to require the payment or delivery by the counterparty thereto of cash or other consideration to the Company or any Company Subsidiary in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024;
(xiii) any CBA;
(xiv) any Contract with any supplier that involved the payment of more than $1,000,000 in the Company’s last fiscal year;
(xv) any material Contract with any university or other academic institution, research center, international organization or Governmental Authority having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024, or in any single fiscal year thereafter, other than any sponsored research agreements, clinical trial site agreements, material transfer agreements, sponsorship agreements or grant agreements entered into in the ordinary course of business;
(xvi) any Contract that is material to indemnifies any director or executive officer of the Company Group and not or any Company Subsidiary (other than any indemnification provisions set forth in the certificate of incorporation or bylaws or comparable governing documents of the Company or any Company Subsidiary or Contracts entered into on substantially the same form as the Company’s standard forms previously disclosed pursuant made available to this Section 3.10Parent) or
(xvii) any Contract that requires any capital commitment or capital expenditure (or series of capital expenditures) by the Company or any Company Subsidiary after the date hereof in an amount in excess of $2,000,000 in the aggregate.
(b) Each Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Contract is valid and binding on Adverse Effect, each of the Contracts to which the Company Group member or any of the Company Subsidiaries is a party thereto in accordance with its terms and is in full force and effect. None , and represents a valid and binding obligation of the Company Group member oror a Company Subsidiary, enforceable in accordance with its terms against the Company or the Company Subsidiary (as the case may be) and, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto thereto, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity). Neither the Company nor any Company Subsidiary is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred thatdefault, with notice or without notice, lapse of time or both, would constitute an event of default under any Material Contract to which the Company or result in any of the Company Subsidiaries is a termination thereof party, nor, to the Company’s Knowledge, is any other party to any such Contract, excluding, however, any breach or default which has not had or would cause not reasonably be expected to have, individually or permit in the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each aggregate, a Company Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Alimera Sciences Inc), Merger Agreement (Ani Pharmaceuticals Inc)
Material Contracts. (a) Section 3.10(a3.13(a) of the Company Disclosure Schedules lists each Letter sets forth a list of all Material Contracts as of the following Contracts date of this Agreement. For purposes of this Agreement, “Material Contract” means any member of Contract to which the Company Group or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound (such Contracts, together with all Contracts concerning other than this Agreement and the occupancy, management or operation of any Real Property (including without limitation, brokerage contractsCompany Benefit Plans) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):that:
(i) each Contract involving aggregate consideration in excess of $100,000 and whichrelates to the formation, in each casecreation, cannot be cancelled by governance or control of, or the member economic rights or obligations of the Company Group without penalty or without more than 90 days’ noticeany of its Subsidiaries in, any joint venture, partnership or other similar arrangement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(ii) all Contracts that require any member provides for Indebtedness of the Company Group to purchase or any of its total requirements Subsidiaries having an outstanding or committed amount in excess of $ 750,000, other than (A) Indebtedness solely between or among any product or service from a third party or that contain “take or pay” provisionsof the Company and any of its Subsidiaries and (B) letters of credit;
(iii) all Contracts that provide for relates to the employment, severance, retention or indemnification by of any member employee of the Company Group or any of any Person or the assumption its Subsidiaries that receives compensation in an amount in excess of any Tax, environmental or other Liability of any Person$250,000 per annum;
(iv) all Contracts that relate relates to the acquisition or disposition of any business, a material amount of stock assets or assets of any other Person or any real property properties (whether by merger, sale of stock, sale of assets or otherwise)) for aggregate consideration under such Contract in excess of $ 750,000 (A) that was entered into after January 1, 2013, or (B) pursuant to which any earn-out, indemnification or deferred or contingent payment obligations remain outstanding that would reasonably be expected to involve payments by the Company or any of its Subsidiaries of more than $250,000;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member prohibits the payment of dividends or distributions in respect of the capital stock of the Company Group is a partyor any of its Subsidiaries, prohibits the pledging of the capital stock of the Company or any of its Subsidiaries or prohibits the issuance of any guarantee by the Company or any of its Subsidiaries;
(vi) all employment agreements and Contracts with independent contractors or consultants is (or similar arrangementscontains provisions described in this clause (vi) that are or would reasonably be expected to which any member be) material to the business of the Company Group is and its Subsidiaries, taken as a party whole, and which are not cancellable without material penalty contains provisions that prohibit the Company or without more any of its Subsidiaries from competing in or conducting any line of business or grants a right of exclusivity or “most favored nation” right to any person that prevents the Company or any of its Subsidiaries from entering any territory, market or field or freely engaging in business anywhere in the world, other than 90 days’ noticeContracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries upon notice of ninety (90) days or less;
(vii) except for Contracts relating relates to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of real property owned or leased by the Company Groupor its Subsidiaries;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group Card Network, Regions Bank or any other BIN sponsor bank is a party (“Government Contracts”)party;
(ix) all Contracts that limit relates to an agreement with (a) Emdeon Business Services LLC or purport to limit the ability of any member its Affiliates, (b) one of the Company Group to compete in any line top ten (10) resellers (based on revenues derived from such resellers during the twelve-month period ending on December 31, 2013), or (c) one of business or with any Person or in any geographic area or the top ten (10) fuel merchants (based on revenues derived from such fuel merchants during any the twelve-month period of time;ending on December 31, 2013); or
(x) any Contracts (A) is not otherwise covered by clauses (i) through (ix) of this Section 3.13(a) and (B) either (x) is with a vendor or supplier pursuant to which any member the Company and its Subsidiaries made payments of $1 million or more in the twelve-month period ending on May 31, 2014, or (y) is with a top ten (10) customer of the Company Group is a party that provide and its Subsidiaries (based on revenues derived from such customers during the twelve-month period ending on December 31, 2013) for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10each Business Line.
(b) Each All of the Material Contract is Contracts are valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effecteffect (except those that terminate or are terminated after the date of this Agreement in accordance with their respective terms). None To the Knowledge of the Company, no Person is challenging the validity or enforceability of any Material Contract. Neither the Company Group member ornor any of its Subsidiaries, nor to Seller’s Knowledgethe Knowledge of the Company, any of the other party thereto is in breach parties thereto, has violated any provision of, or committed or failed to perform any act which (with or without notice, lapse of time or both) would constitute a material default under (any provision of, and neither the Company nor any of its Subsidiaries has received written notice that it has violated or is alleged to be in breach of or default defaulted under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance Company has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in delivered to Parent a termination thereof or 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 complete copy of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Fleetcor Technologies Inc)
Material Contracts. (ai) Section 3.10(a) As of the Disclosure Schedules lists each date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
: (i) each any Contract involving aggregate consideration with respect to indebtedness for borrowed money or any financial guaranty thereof in excess of $100,000 1,000,000, other than (A) indebtedness between and which, in each case, cannot be cancelled among the Company and its Subsidiaries and (B) financial guaranties by the member Company of the Company Group without penalty or without more than 90 days’ notice;
indebtedness owed by its Subsidiaries to third parties; (ii) all Contracts any Contract that require any member of is not terminable at will by the Company Group without penalty that purports to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of prohibit the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete its Subsidiaries from competing in any line of material respect in any business or line, with any Person or in any geographic area or during any period (provided that in the case of time;
(x) any Contracts that did not involve the receipt by the Company of at least $1,000,000 in payments in 2014 and are not expected to which any member involve the receipt of payments by the Company in 2015 of at least $1,000,000, this list is to the Knowledge of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member as of the Company Group;
date of this Agreement); (xiiii) all Contracts between any Contract that involves any exchange-traded, over-the-counter or among other swap, cap, floor, collar, futures contract, forward contract, option or any member other derivative financial instrument with a fair market value in excess of $1,000,000; (iv) any Contract that involved expenditures or guaranteed receipts by the Company Group on the one hand and Seller or any Affiliate of Seller its Subsidiaries of more than $10,000,000 in 2014 or by its terms requires expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $10,000,000 in 2015; (v) any Contract that involved, since January 1, 2013, the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets composing a business or capital stock or other equity interests of another Person (other than acquisitions or dispositions of assets, capital stock and other equity interests by and among the Company and its Subsidiaries); (vi) any member Contract (other than this Agreement) that is not terminable on 90 days or less notice and by its terms limits the payment of dividends or other distributions by the Company or any of its Subsidiaries; (vii) any joint venture or partnership Contract material to the Company and its Subsidiaries, taken as a whole; (viii) any Contract for the lease of real property material to the operation of the Company Group) on the other hand;
Company’s and its Subsidiaries’ business, taken as a whole; (xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiiiix) any other Contract that contains a put, call, right of first refusal or right of first negotiation, right of first offer, redemption, repurchase or similar right that is material to the Company Group and not previously disclosed its Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries would be required to, or have the option or right to, purchase or sell, as applicable, any equity interests, businesses, lines of business, divisions, joint ventures, partnerships or other assets of any Person; (x) any settlement agreement or similar Contract with a Governmental Entity or order to which the Company or any of its Subsidiaries is a party involving future performance by the Company or any of its Subsidiaries in any such case that is material to the Company and its Subsidiaries, taken as a whole; (xi) any Contract for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $3,000,000; (xii) any Contract containing covenants of the Company or any of its Subsidiaries to indemnify or hold harmless another Person or make any “earn-out” or other contingent payment to another Person, unless such obligation to such Person contained in such Contract would not reasonably be expected to exceed a maximum of $1,000,000; (xiii) any Contract that (A) grants to any third Person any material exclusive license or supply or distribution agreement or other similar material exclusive rights or (B) grants to any third Person any “most favored nation” rights and is expected to result in aggregate future payments to the Company or any of its Subsidiaries in excess of $5,000,000 per annum or, to the Knowledge of the Company as of the date hereof, in excess of $2,000,000 per annum; and (xiv) any Contract deemed to be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (all contracts of the type described in this Section 3.103.1(p)(i) being referred to in this Agreement as “Company Material Contracts”).
(bii) Each Except as would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, (A) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party, is in material breach of or material default under the terms of any Company Material Contract; (B) each Company Material Contract is a valid and binding on obligation of the Company Group member or its Subsidiaries which is party thereto in accordance with its terms and, to the Knowledge of the Company, of each other party thereto, and is in full force and effect. None of , except that such enforcement may be subject to the Bankruptcy and Equity Exception; and (C) neither the Company Group member nor any of its Subsidiaries has received any written, or, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)oral, or has provided or received any notice of any intention termination or breach with respect to, and, to the Knowledge of the Company, no party has threatened to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (XPO Logistics, Inc.), Merger Agreement (Con-Way Inc.)
Material Contracts. (a) Except for Company Material Contracts filed as exhibits to the Company Reports prior to the date of this Agreement or, as listed in Section 3.10(a3.14(a) of the Company Disclosure Schedules lists each Letter, as of the following Contracts date of this Agreement, neither the Company nor any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management Subsidiaries is a party to or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
bound by (i) each any “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC) or (ii) any Contract involving aggregate consideration that:
(A) is a “non-compete,” or similar agreement that restricts or purports to restrict the geographic area in which the Company or any of the Company Subsidiaries may conduct any line of business, or that requires the referral of business opportunities by the Company or any of the Company Subsidiaries that could reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole;
(B) relates to partnerships, joint ventures or similar arrangements pursuant to which the Company or any of the Company Subsidiaries invests in any other Person that could reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole;
(C) relates to indebtedness of the Company or any of the Company Subsidiaries in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice1,000,000;
(iiD) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide provides for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person by the Company or any real property (whether by merger, sale of stock, sale the Company Subsidiaries with a purchase price therefor in excess of assets or otherwise)$500,000;
(vE) all brokerexcept for as required pursuant to the terms of any Company Benefit Plan, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which provides for transactions or arrangements between the Company or any member of the Company Group is a party;
Subsidiaries, on the one hand, and (viI) all employment agreements and Contracts with independent contractors any director or consultants (or similar arrangements) to which any member officer of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
Subsidiaries, (viiiII) all Contracts with any Governmental Authority to which any member record or beneficial owner of 5% or more of the voting securities of the Company Group is a party or (“Government Contracts”);
(ixIII) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) such director, officer or record or beneficial owner, on the other hand;
(xiiF) all collective bargaining agreements is with on-air talent or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material employees providing services to the Company Group or Company Subsidiaries and not previously disclosed involves a commitment for annual consideration in excess of $300,000;
(G) except for as required pursuant to the terms of any Company Benefit Plan, provides for annual payments in excess of $300,000 by, or $500,000 to, the Company or Company Subsidiaries; or
(H) is a local marketing agreement, joint sales agreement or similar agreement; (all contracts of the type described in this Section 3.103.14(a), being referred to herein as a “Company Material Contract”).
(b) Each Material Contract is valid and binding on Neither the Company Group member party thereto in accordance with its terms and is in full force and effect. None nor any of the Company Group member or, to Seller’s Knowledge, any other party thereto Subsidiaries is in breach of or default under (or the terms of any Company Material Contract in any material respect. To the knowledge of the Company, no other party to any Company Material Contract is alleged to be in any material respect in breach of or default under), or has provided or received any notice under the terms of any intention to terminate, any Company Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Each Company Material Contract is a valid and binding obligation of the Company or result any Company Subsidiary which is a party thereto and, to the knowledge of the Company, is in a termination thereof or would cause or permit the acceleration full force and effect; provided, however, that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other changes similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any right or obligation or the loss of any benefit thereunderproceeding therefor may be brought. Complete True, correct and correct copies complete copies, in all material respects, of each Company Material Contract (including all modifications, modifications and amendments and supplements thereto and waivers thereunder) have been made available to BuyerParent.
Appears in 2 contracts
Sources: Merger Agreement (Citadel Broadcasting Corp), Merger Agreement (Cumulus Media Inc)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Except for Contracts of any member of or commitments disclosed in Schedule 3.12, the Company Group (such Contracts, together with all Contracts concerning the occupancy, management is not a party to or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):subject to:
(i) each any lease, rental, conditional sale or similar Contract involving aggregate consideration in excess providing for annual rentals of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty 10,000 or without more than 90 days’ noticemore;
(ii) all any Contract relating to indebtedness, guarantee, capital lease, credit or financing or other Contract for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset) or any other Liability, except Contracts that require any member relating to indebtedness or Liabilities incurred in the ordinary course of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisionsbusiness consistent with past practices in an amount not exceeding $10,000;
(iii) all Contracts that provide any Contract for the indemnification purchase of materials, supplies, goods, services, equipment or other assets providing for annual payments by any member of the Company Group of any Person $10,000 or the assumption of any Tax, environmental or other Liability of any Personmore;
(iv) all Contracts that relate any sales, distribution or other similar Contract providing for the sale by the Company of materials, supplies, goods, services, equipment or other assets providing for annual payments to the acquisition Company of $10,000 or disposition 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)more;
(v) all broker, distributorany agency, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a partyrepresentative or other similar Contract;
(vi) all any employment agreements or consulting Contract, and Contracts any Contract with independent contractors any officer, director, employee or consultants (or similar arrangements) to which any member 10% stockholder of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeCompany;
(vii) except for Contracts relating to trade receivablesany partnership, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Groupjoint venture or other similar Contract;
(viii) all Contracts with any Governmental Authority license, franchise agreement or Contract in respect of similar rights granted to which any member of or held by the Company Group is a party (“Government Contracts”)Company;
(ix) all Contracts any Contract or other document that limit or purport to limit limits the ability of any member freedom of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period which would so limit the freedom of timethe Company after the Closing Date;
(x) any Contracts to which Contract for the acquisition of any member Person or business thereof or the disposition of any material assets of the Company Group is a party that provide for any joint ventureCompany, partnership other than in the ordinary course of business consistent with past practices, in each case involving payments in excess of $10,000 or similar arrangement as contemplated by any member of the Company Groupthis Agreement;
(xi) all Contracts between or among any member Contract requiring capital expenditures after the date hereof in an amount in excess of the Company Group on the one hand and Seller or $10,000 in any Affiliate of Seller (other than any member of the Company Group) on the other handcalendar year;
(xii) all collective bargaining agreements any Contract relating to the Company’s Proprietary Rights or Contracts with any Union to which any member the use by the Company of the Company Group is a partyProprietary Rights of any other Person; andor
(xiii) any other Contract or commitment not made in the ordinary course of business that is material to the Company Group and not previously disclosed pursuant to this Section 3.10Company.
(b) Each Material Contract and commitment required to be disclosed in Schedule 3.12 is a valid and binding on agreement of the Company Group member party thereto in accordance with its terms and Company, is in full force and effect. None , and is enforceable against the Company, and to the Knowledge of the Company, the other parties thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors’ rights generally and to the general principles of equity. Except as disclosed on Schedule 3.12, neither the Company Group member ornor, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto is in breach of or default in any material respect under (the terms of any such Contract or is alleged to be in breach of or default under), or commitment. The Company has provided or not received any notice of any intention to terminatebreach or violation of, or default under, any Contract or commitment required to be disclosed in Schedule 3.12 that could reasonably be expected to result, individually or in the aggregate, in a Material Contract. No Adverse Effect, and there has not occurred any event or circumstance has occurred that, with notice or the lapse of time or giving of notice or both, would constitute an event of default under any Material Contract such a breach or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyerdefault.
Appears in 2 contracts
Sources: Stock Purchase Agreement (World Surveillance Group Inc.), Stock Purchase Agreement (World Surveillance Group Inc.)
Material Contracts. (a) Section 3.10(a) of Except for the Disclosure Schedules lists each of the following Contracts of any member of contracts described in or filed as an exhibit to the Company Group (such Contracts, together with all Contracts concerning the occupancy, management SEC Documents or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) 3.13 or Section 3.18 of the Company Disclosure SchedulesSchedule (collectively, being the “Material Contracts”):), neither Company nor any of its Subsidiaries is a party to or is bound by any of the following:
(i) each Contract involving aggregate consideration any contract or agreement entered into other than in the ordinary course of business consistent with past practice for the acquisition of the securities of or any material portion of the assets of any other Person or entity;
(ii) any contract or agreement for the purchase of services in excess of $100,000 and which, in each case, which cannot be cancelled by the member Company or any of the Company Group its Subsidiaries without penalty or further payment or without more than 90 45 days’ notice;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts any contract, agreement or instrument in excess of $100,000 that provide for expires or may be renewed at the indemnification by any member of the Company Group option of any Person other than Company or any of its Subsidiaries so as to expire more than one year after the assumption date of any Tax, environmental or other Liability of any Personthis Agreement;
(iv) all Contracts that relate to the acquisition any material contract with any independent contractor or disposition of any business, a material amount of stock consultant (or assets of any other Person or any real property similar arrangement) which is not cancelable without penalty and without more than thirty (whether by merger, sale of stock, sale of assets or otherwise)30) days’ notice;
(v) all any trust indenture, mortgage, promissory note, loan agreement or other contract, agreement or instrument for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP, in each case, where Company or any of its Subsidiaries is a lender, borrower or guarantor;
(vi) any contract or agreement limiting the freedom of Company or any of its Subsidiaries or any of their respective employees to engage in any line of business or to compete with any other Person;
(vii) any contract or agreement with any Affiliate of Company;
(viii) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person other than those entered into in the ordinary course of business;
(ix) any material agreement which would be terminable other than by Company or its Subsidiaries or under which a payment obligation would arise or be accelerated, in each case as a result of the consummation of the transactions contemplated by this Agreement;
(x) any material alliance, cooperation, joint venture, stockholders’ partnership or similar agreement;
(xi) any broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing market consulting and or advertising Contracts to which any member agreement involving in excess of $100,000 (other than software licenses entered into in the Company Group is a partyordinary course of business);
(vixii) all employment agreements and Contracts with independent contractors any material research, development, sales representative, marketing or consultants (reseller agreement, or similar arrangements) any service, support or maintenance agreement related to which the business or technology of Company or any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeits respective Subsidiaries;
(viixiii) except for Contracts relating any material agreement, option or commitment or right with, or held by, any Third Party to trade receivablesacquire, all Contracts relating use or have access to indebtedness any assets or properties, or any interest therein, of Company or any of its Subsidiaries (other than software licenses entered into in the ordinary course of business);
(xiv) any material agreement that affects or relates to Company IP, including, without limitation, guarantees) of any member of the material agreement pursuant to which any person or entity is authorized to use or has an ownership or security interest in any Company GroupIP;
(viiixv) all Contracts with any Governmental Authority to material contract or agreement which would require any member consent or approval of a counterparty as a result of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member consummation of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement transactions contemplated by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partythis Agreement; and
(xiiixvi) any other Contract that is material to contract the loss of which would have a Company Group and not previously disclosed pursuant to this Section 3.10Material Adverse Effect.
(b) Each Company and each of its Subsidiaries have performed all of the obligations required to be performed by them and are entitled to all accrued benefits under, and are not alleged to be in default in respect of, each Material Contract to which Company or any Subsidiary is valid and binding on a party or by which Company or any Subsidiary is bound, except as would not, individually or in the aggregate, have a Company Group member party thereto in accordance with its terms and Material Adverse Effect. Each of the Material Contracts is in full force and effect. None , without amendment (other than as disclosed in Section 3.13 of the Company Group member Disclosure Schedule), and there exists no default or event of default or event, occurrence, condition or act, with respect to Company or any of its Subsidiaries or, to Seller’s Knowledgethe knowledge of Company, with respect to any other party thereto is in breach contracting party, which, with the giving of notice, the lapse of the time or default under (or is alleged to be in breach of or default under), or has provided or received any notice the happening of any intention to terminate, any Material Contract. No other event or circumstance has occurred that, with notice or lapse of time or bothcondition, would constitute an become a default or event of default under any Material Contract Contract, except, as would not, individually or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunderaggregate, be material to Company. Complete True, correct and correct complete copies of each all Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) Contracts have been furnished or made available to BuyerParent or filed as exhibits to the Company SEC Documents.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Palmsource Inc)
Material Contracts. (a) Section 3.10(a) As of the Disclosure Schedules lists each date of the following Contracts of any member of this Agreement, except for this Agreement or the Company Group Benefit Plans, neither the Company nor any of its Subsidiaries is a party to or bound by: (such Contracts, together with all Contracts concerning the occupancy, management A) any Contract relating to indebtedness for borrowed money or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract involving aggregate consideration financial guaranty in excess of $100,000 and which, in each case, cannot be cancelled by 100,000; (B) any Contract that limits the member ability of the Company Group without penalty or without any of its Subsidiaries to compete in any business line or in any geographic area; (C) any Contract that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument; (D) any Contract that involved expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than 90 days’ notice;
$2 million in the last fiscal year or is expected to involve expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $2 million in the next fiscal year; (iiE) all Contracts any Contract that require involved, since January 1, 2004, the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another person (other than acquisitions or dispositions of assets in the ordinary course of business, including acquisitions and dispositions of inventory); (F) any member Contract that by its terms limits the payment of dividends or other distributions by the Company or any of its Subsidiaries; (G) any material joint venture or partnership Contract; (H) any Contract that purports to limit the ability of the Company Group or any of its Subsidiaries to purchase its total requirements own, operate, sell, transfer, pledge or otherwise dispose of any product material amount of assets or service from business; and (I) any Contract deemed to be a third party or that contain “take or paymaterial contract” provisions;(as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC (all contracts of the type described in this Section 4.19(a) (being referred to herein as “Company Material Contracts”).
(iiib) all Contracts that provide for the indemnification by any member Section 4.19(b) of the Company Group Disclosure Schedule sets forth a true and complete list of any Person or the assumption Company Material Contracts. True, correct and complete copies have been made available to Parent of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Company Material Contracts to which any member of the Company Group or any of its Subsidiaries is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of ; provided, however, that the Company Group is a party and which need not provide to Parent any Company Material Contracts or portions thereof that contain confidentiality provisions or are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating otherwise subject to trade receivables, all Contracts relating to indebtedness (restrictions on disclosure including, without limitation, guaranteesrestrictions relating to security clearance.
(c) of Neither the Company nor any member Subsidiary of the Company Group;
nor, to the knowledge of the Company, any other party, is in material breach of or material default under the terms of any Contract that would qualify as a Company Material Contract pursuant to Section 4.19(a)(A), (viiiC), (D), (G) all Contracts with or (I) (each, a “Specified Contract”). Except as would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any Governmental Authority to which any member Subsidiary of the Company Group nor, to the knowledge of the Company, any other party, is a party (“Government Contracts”);
(ix) all Contracts that limit in material breach of or purport to limit material default under the ability terms of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Material Contract that is not a Specified Contract. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company Group and its Subsidiaries, taken as a whole, each Specified Contract, and, except as would not previously disclosed pursuant reasonably be expected to this Section 3.10.
(b) Each have a Company Material Adverse Effect, each Company Material Contract that is not a Specified Contract or a Contract of the type referred to in Section 4.19(a)(B) or (H), is a valid and binding on obligation of the Company Group member or the Subsidiary of the Company which is party thereto in accordance with its terms and, to the knowledge of the Company, of each other party thereto, and is in full force and effect. None , except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the Company Group member or, to Seller’s Knowledge, court before which any other party thereto is in breach of or default under (or is alleged to proceeding therefor may be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyerbrought.
Appears in 2 contracts
Sources: Merger Agreement (Stealth Acquisition Corp.), Merger Agreement (Safenet Inc)
Material Contracts. (a) Section 3.10(a) 4.15 of the Company Disclosure Schedules lists each Schedule sets forth all of the following Contracts to which the Company, the Purchased Companies or any of any member of their Subsidiaries is a party or by which it is bound under which there are continuing obligations (other than confidentiality restrictions) and other than the Company Group Plans and Contracts made after the date hereof as permitted by or in compliance with Section 6.2 (such Contractscollectively, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
): (i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled by the member Contracts with any current officer or director of the Company Group without penalty Company, the Purchased Companies or without more than 90 days’ notice;
any of their Subsidiaries; (ii) all Contracts that require with any member labor union or association representing any employee of the Company Group to purchase its total requirements Company, the Purchased Companies or any of any product or service from a third party or that contain “take or pay” provisions;
their Subsidiaries; (iii) all Contracts that provide for the indemnification by pursuant to which any member party is required to purchase or sell a stated portion of the Company Group of any Person its requirements or the assumption of any Tax, environmental output from or other Liability of any Person;
to another party; (iv) all Contracts that relate to for the acquisition or disposition sale of any business, a material amount of stock or the assets of any other Person the Company, the Purchased Companies or any real property (whether by merger, sale of stock, sale their Subsidiaries other than in the Ordinary Course of assets Business or otherwise);
for the grant to any person of any preferential rights to purchase any of its assets; (v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
joint venture agreements; (vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member containing covenants of the Company Group is a party and which are Company, the Purchased Companies or any of their Subsidiaries not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person person in any geographical area or covenants of any other person not to compete with the Company, the Purchased Companies or any of their Subsidiaries in any line of business or in any geographic area geographical area; (vii) Contracts relating to the acquisition by the Company, the Purchased Companies or during any period of time;
their Subsidiaries of any operating business or the capital stock of any other person; (viii) Contracts relating to the borrowing of money; (ix) any distributor, supplier (as such term is used in the Company SEC Documents), advertising, agency or manufacturer’s representative Contract; (x) agreement of guarantee, support, assumption or endorsement of, or any Contracts similar commitment with respect to which the Liability or Indebtedness of any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
other Person; (xi) all Contracts between trust indenture, mortgage, promissory note, loan agreement or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements other Contracts, other than Real Property Leases, which involve the expenditure by the Company, the Purchased Companies or Contracts with any Union to which of their Subsidiaries of more than $150,000 in the aggregate or $25,000 annually or require performance by any member of party more than one year from the Company Group is a party; and
(xiii) any other Contract that is date hereof or are otherwise material to the Company Group Company, the Purchased Companies and not previously disclosed pursuant any of their Subsidiaries taken as a whole. The Company, the Purchased Companies and their Subsidiaries have provided or made available to this Section 3.10.
(b) Each the Purchaser true and complete copies of all of the written Material Contract is valid Contracts and binding on written summaries of the Company Group member party thereto in accordance with its material terms of all of the oral Material Contracts. All of the Material Contracts and is other agreements are in full force and effecteffect and are the legal, valid and binding obligation of the Company, the Purchased Companies and/or any of their Subsidiaries, enforceable against them in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and 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). None of the Company Group member orCompany, the Purchased Companies or any of their Subsidiaries is in default in any material respect under any Material Contract, nor, to Seller’s Knowledgethe Knowledge of the Company, the Purchased Companies or any of their Subsidiaries, is any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of default thereunder in any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyermaterial respect.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Applied Materials Inc /De), Stock and Asset Purchase Agreement (Segal Edward D)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member of Neither the Company Group (such Contracts, together with all Contracts concerning the occupancy, management nor any of its Subsidiary is a party to or operation of bound by any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):Contract:
(i) each Contract involving aggregate consideration in excess of $100,000 and which, as of the date hereof, and except as filed with the Company SEC Documents, is a “material contract” (as such term is defined in each case, cannot be cancelled Item 601(b)(10) of Regulation S-K promulgated by the member of the Company Group without penalty or without more than 90 days’ noticeSEC);
(ii) all Contracts that is reasonably expected to require any member of the payment by the Company Group to purchase its total requirements of a dollar amount in excess of $500,000 or extends for a period of 12 months or more (other than any product contract or service from a third party commitment that is terminable on 90 days or that contain “take less notice without penalty or pay” provisionsany confidentiality or non disclosure agreement);
(iii) all Contracts that provide for the indemnification with employees and contracts with other consultants, which are reasonably expected to involve payments by any member of the Company Group or any Subsidiary of any Person or the assumption more than annual compensation of any Tax, environmental or other Liability of any Person$150,000;
(iv) all Contracts that relate with respect to any joint venture or partnership arrangements, or with respect to any license or distribution agreement involving a sharing of profits, losses, costs or liabilities by the acquisition or disposition of any business, a material amount of stock or assets of any other Person Company or any real property (whether by merger, sale Subsidiary with any Third Party and relating to any product or planned product of stock, sale of assets or otherwise)the Company;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts pursuant to which any member Indebtedness of the Company Group or any of its Subsidiaries greater than $25,000 is a partyor may be incurred other than the Loan Documents and any Contract between or among the Company and/or wholly-owned Subsidiaries of the Company, or pursuant to which the Company guarantees the performance of the obligations of any Third Party;
(vi) all employment agreements and Contracts with independent contractors relating to any pending acquisition or consultants (or similar arrangements) to which any member of disposition by the Company Group is a party or any of its Subsidiaries of properties or assets, except for acquisitions and which are not cancellable without material penalty or without more than 90 days’ noticedispositions of properties, assets and inventory in the ordinary course of business;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member limiting the ability of the Company Group;
(viii) all Contracts with or any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit its Subsidiaries or purport to limit the ability of any member of the Company Group their respective successors and assigns to compete in any line of business or with any Person or in any geographic area area, or during restricting the right of the Company and its Subsidiaries or their respective successors and assignes from selling or purchasing from any period Person or hiring any Person or that provides for any standstill or similar obligations restricting the ability of timethe Company to purchase securities of any other entity;
(viii) for the sale of goods or services to any Governmental Authority;
(ix) providing for any contingent payments by the Company or any of its Subsidiaries exceeding $250,000 in any one case;
(x) not entered into in the ordinary course of business between the Company or any Contracts to which of its Subsidiaries, on the one hand, and any member Affiliate thereof other than any Subsidiary of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;Company; or
(xi) all Contracts between requiring a consent to, or among any member otherwise containing a provision restricting a “change of control,” or that would reasonably be expected to prevent, delay or impair the consummation of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to transactions contemplated by this Section 3.10Agreement.
(b) Each Contract of the type described in Section 4.14(a), whether or not set forth in Section 4.14(a) of the Company Disclosure Schedule (including Contracts which would be required to be set forth in Section 4.14(a) of the Company Disclosure Schedule if such Contracts were not filed as exhibits to the Company SEC Documents), is referred to herein as a “Material Contract.”
(c) Except for matters that would not have a Company Material Adverse Effect, (i) each Material Contract is a valid and binding on obligation of the Company Group member party thereto or a Subsidiary of the Company, as applicable, in full force and effect and enforceable against the Company or such Subsidiary in accordance with its terms terms, subject to the Bankruptcy and Equity Exceptions, and there is in full force and effect. None no breach, violation or default by the Company or any of its Subsidiaries under any of the Company Group member orMaterial Contracts, to Seller’s Knowledge, (ii) no Material Contract has been canceled by any other party thereto thereto, (iii) to the knowledge of the Company, no other party is in breach of or default under (or is alleged to be in breach of violation of, or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No Contract and (iv) neither the Company nor any of its Subsidiaries has received written notice of a default under any Material Contract or of any event or circumstance has occurred thatcondition which, with after notice or lapse of time or both, would will constitute an event a default on the part of default the Company or any of its Subsidiaries under any Material Contract or result in a termination thereof or would cause or permit Contract. As of the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete date hereof, true and correct copies of each all Material Contract Contracts (including all modifications, amendments and supplements thereto and waivers thereunderas amended or modified) have been are either publicly filed with the SEC or the Company has made available to BuyerParent copies of such Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Thoratec Corp), Merger Agreement (HeartWare International, Inc.)
Material Contracts. (a) Except for the contracts listed in Section 3.10(a) 3.13 of the Seller Disclosure Schedules lists each of (the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):), the Real Property Leases, Plans and any contracts entered into following the Execution Date in accordance with Section 5.2, none of the Partnership or any Partnership Subsidiary is a party to or bound by any of the following:
(ia) each Contract involving aggregate consideration in excess any contract for the storage of $100,000 and whichfuel or refined products that will not be terminated prior to the Closing, in each case, or that cannot be cancelled terminated on ninety (90) or fewer days notice, and that provides for the future payment by or to the member Partnership or a Partnership Subsidiary of the Company Group without penalty or without more than 90 days’ notice$250,000 per annum;
(iib) all Contracts any contract for the supply of goods or services to the Partnership or a Partnership Subsidiary that require any member of will not be terminated prior to the Company Group to purchase its total requirements of any product or service from a third party Closing, or that contain “take cannot be terminated on ninety (90) or pay” provisionsfewer days notice, and that provides for future payments by or to the Partnership or a Partnership Subsidiary of more than $250,000 per annum;
(iiic) all Contracts that provide any contract for the indemnification by any member of the Company Group sale or purchase of any Person material asset that cannot be terminated on ninety (90) or fewer days notice, and that provides for the assumption future payment by the Partnership or a Partnership Subsidiary of any Tax, environmental or other Liability of any Personmore than $250,000 per annum;
(ivd) all Contracts any contract that relate grants to the acquisition or disposition of any business, Person a right to purchase any material amount of stock or assets of any other Person the Partnership or any real property (whether by merger, sale of stock, sale of assets or otherwise)the Partnership Subsidiaries;
(ve) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member contract that contains covenants of any of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors Partnership or consultants (the Partnership Subsidiaries that materially limits or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport purports to limit the ability of the Partnership or any member of the Company Group Partnership Subsidiary to compete in any line of business or with any Person or in any geographic area or during any period of timearea;
(xf) any Contracts commitment to which make any member capital expenditure or to purchase a capital asset in excess of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group$250,000 per annum;
(xig) all Contracts between or among any member of the Company Group on the one hand and agreement with Seller or any Affiliate Affiliates of Seller (other than any member of the Company Group) on Partnership or the other handPartnership Subsidiaries);
(xiih) all collective bargaining agreements any contract entered into or Contracts with assumed by the Partnership or any Union to which any member of the Company Group is a party; andPartnership Subsidiaries providing for indemnification of any Person, other than entered into or assumed in the ordinary course of business consistent with past practice;
(xiiii) any contract which relates to Indebtedness under which the Partnership or any Partnership Subsidiaries has outstanding obligations in excess of $250,000;
(j) any contract under which the Partnership or any of the Partnership Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of a third party in excess of $250,000; or
(k) any other Contract that contract not otherwise described in clauses (a) through (j) above which is material to the Company Group Partnership, the Partnership Subsidiaries or the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each Material Contract, as of the Execution Date, is in full force and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is effect and constitutes a legal, valid and binding on agreement of the Company Group member party thereto Partnership or the applicable Partnership Subsidiary, enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws affecting the enforcement of creditors’ rights generally or by general equitable principles). Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, none of the Partnership or any Partnership Subsidiary has received written notification that any Material Contract is not in full force and effect. None of , or that the Company Group member or, to Seller’s Knowledge, Partnership or the Partnership Subsidiary or any other party thereto is in breach has breached its obligations thereunder, and, to the Knowledge of or default under (or is alleged to be in breach of or default under)Seller, or has provided or received any notice of any intention to terminate, any Material Contract. No no event or circumstance has occurred that, that (with or without notice or lapse of time time) would reasonably be expected to result in a breach or bothviolation of, would constitute an event or a default under, the terms of default under any Material Contract by the Partnership or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerPartnership Subsidiary.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Buckeye Partners, L.P.), Sale and Purchase Agreement (Buckeye Partners, L.P.)
Material Contracts. (a) Except as set forth on Section 3.10(a3.14(a) of the Company Disclosure Schedules lists each Schedules, neither the Company nor any of its Subsidiaries is a party to or bound by, as of the date hereof, any of the following Contracts of any member (each Contract of the Company Group (such Contractstype described in this Section 3.14(a), together with all Contracts concerning the occupancy, management whether written or operation of any Real Property (including without limitation, brokerage contracts) listed oral and whether or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements not set forth in Section 3.12(b) of the Company Disclosure Schedules, being is referred to as a “Material ContractsContract”):
(i) each any Contract involving aggregate consideration that constitutes a “material contract” (as such term is defined in excess item 601(b)(10) of $100,000 and which, in each case, cannot be cancelled by the member Regulation S-K of the Company Group without penalty or without more than 90 days’ noticeSEC);
(ii) all Contracts any Contract entered into since January 1, 2016 (and any Contract entered into at any time to the extent that require any member material obligations remain as of the Company Group to purchase its total requirements date hereof), other than in the ordinary course of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide business consistent with past practice, for the indemnification by any member acquisition of the Company Group securities of or any Person or material portion of the assumption of any Tax, environmental or other Liability of any Person;
(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 entity;
(iii) any real property trust indenture, mortgage, promissory note, loan agreement or other Contract or instrument for the borrowing of money, any currency exchange, commodities or other hedging Contracts or any leasing transaction of the type required to be capitalized in accordance with GAAP, in each case, where the Company or any of its Subsidiaries is a lender, borrower or guarantor, other than Contracts evidencing deposit liabilities, endorsements and guarantees in connection with the presentation of items for collection (e.g., personal or business checks) in the ordinary course of business consistent with past practice, trade payables and Contracts relating to borrowings entered into in the ordinary course of business;
(iv) any Contract limiting (or purporting to limit) the freedom of the Company or any of its Subsidiaries or other Affiliates to engage in any line of business or to compete with any other Person or prohibiting the Company or any of its Subsidiaries or other Affiliates from soliciting customers, clients or employees, in each case, whether by mergerin any specified geographic region or business or generally (in each case, sale of stock, sale of assets or otherwiseother than to a de minimis extent);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member Contract with any Affiliate of the Company Group is a partyor any of its Subsidiaries;
(vi) all employment agreements and Contracts with independent contractors any agreement of guarantee, support or consultants (or similar arrangements) to which any member of indemnification by the Company Group is a party and which are not cancellable without material penalty or without more any of its Subsidiaries, assumption or endorsement by the Company or any of its Subsidiaries of or any similar commitment by the Company or any of its Subsidiaries with respect to the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person other than 90 days’ noticethose entered into in the ordinary course of business;
(vii) except for Contracts relating to trade receivablesany Contract that would be terminable other than by the Company or any of its Subsidiaries or any Contract under which a material payment obligation would arise or be accelerated, all Contracts relating to indebtedness in each case, as a result of the announcement or consummation of this Agreement or the transactions contemplated herein (including, without limitation, guarantees) either alone or upon the occurrence of any member of the Company Groupadditional acts or events);
(viii) all Contracts with any Governmental Authority alliance, cooperation, joint venture, shareholders’ partnership or similar Contract involving a sharing of profits or losses relating to which any member of the Company Group is a party (“Government Contracts”)or any of its Subsidiaries;
(ix) all Contracts that limit any employment Contract with any employee or purport to limit the ability of any member officer of the Company Group to compete in or any line of business or with any Person or in any geographic area or during any period of timeits Subsidiaries;
(x) any Contracts Contract, option or commitment or right with, or held by, any third party to which acquire, use or have access to any member assets or properties, or any interest therein, of the Company Group is a party that provide for or any joint ventureof its Subsidiaries, partnership other than in connection with the sale of Loans, Loan participations or similar arrangement by any member investment securities in the ordinary course of business consistent with past practice to third parties who are not Affiliates of the Company GroupCompany;
(xi) all Contracts between any Contract that contains any (A) exclusive dealing obligation, (B) “clawback” or among similar undertaking requiring the reimbursement or refund of any member fees, (C) “most favored nation” or similar provision granted by the Company or any of its Subsidiaries or (D) provision that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company Group on the one hand and Seller or any Affiliate of Seller (other than its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any member of the Company Group) on the other handassets or business;
(xii) all collective bargaining agreements any lease or Contracts with any Union other Contract (whether real, personal or mixed, tangible or intangible) pursuant to which any member the annualized rent or lease payments are, or are reasonably expected to be, in excess of the Company Group is a party; and$100,000;
(xiii) any Contract for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $100,000 per year; and
(xiv) any Contract not listed above that is material to the financial condition, results of operations or business of the Company Group and not previously disclosed pursuant to this Section 3.10or any of its Subsidiaries.
(b) Each The Company and each of its Subsidiaries have performed in all material respects all of the obligations required to be performed by them and are entitled to all accrued benefits under each, and are not alleged to be and are not, in default in respect of, any Material Contract to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound, except as would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect on the Company and its Subsidiaries. Each of the Material Contracts is valid and binding on the Company Group member party thereto in accordance with or its terms applicable Subsidiary and is in full force and effect. None , without amendment, and there exists no default or event of default or event, occurrence, condition or act, with respect to the Company Group member or any of its Subsidiaries or, to Seller’s Knowledgethe Knowledge of the Company, with respect to any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)contracting party, or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred thatwhich, with notice or the giving of notice, the lapse of time or boththe happening of any other event or condition, would constitute an become a default or event of default under any Material Contract Contract, except, as would not, individually or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or aggregate, be material to the loss of any benefit thereunderCompany and its Subsidiaries. Complete True, correct and correct complete copies of each all Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) Contracts have been furnished or made available to BuyerParent.
Appears in 2 contracts
Sources: Merger Agreement (S&t Bancorp Inc), Merger Agreement (DNB Financial Corp /Pa/)
Material Contracts. (a) Except for Contracts that are filed as an exhibit to a Company SEC Report, Section 3.10(a5.18(a) of the Company Disclosure Schedules lists each Letter contains an accurate and complete list of the following Contracts to which the Company or the Company Subsidiary is a party or by which it is bound as of any member the date hereof (each such Contract, whether or not set forth in such section of the Company Group (such ContractsDisclosure Letter, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being a “Material ContractsContract”):
(i) each Contract (A) relating to the employment of, or the performance of services by, any director, officer, employee or individual Contractor, requiring or otherwise involving aggregate consideration the payment by the Company or the Company Subsidiary in excess of $100,000 250,000 in the fiscal year ended December 31, 2012, (B) the terms of which obligate or may in the future obligate the Company or the Company Subsidiary to make any severance, termination or similar payment to any current or former employee in excess of $250,000, or (C) pursuant to which the Company or the Company Subsidiary may be obligated to make any bonus or similar payment to any current or former employee or director in excess of $250,000;
(ii) each Contract (A) materially limiting the freedom or right of the Company or the Company Subsidiary (or, after the Acceptance Time, Parent or any of its Affiliates) to engage in any line of business, including the research, development and whichcommercialization of the Company Products, to make use of any material Company Intellectual Property or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) or exclusivity obligations, (C) granting any right of first refusal, right of first offer or similar right or (D) containing any other term, condition or clause that, individually or in the aggregate, limits or purports to limit in any material respect the ability of the Company or the Company Subsidiary to own, operate, manufacture, sell, distribute, transfer, pledge or otherwise dispose of any material assets or business of the Company or the Company Subsidiary (or, after the Acceptance Time, Parent or its Affiliates);
(iii) each Related Party Transaction;
(iv) each Contract that provides for indemnification (or reimbursement or advancement of legal fees or expenses) of any current or former officer, director or employee of the Company or the Company Subsidiary;
(v) each Lease under which the Company or the Company Subsidiary leases, subleases or licenses any real property;
(vi) each Contract requiring or otherwise involving the potential payment by or to the Company or the Company Subsidiary of more than (A) $500,000 in any fiscal year or (B) $1,000,000 in the aggregate, in each case, cannot be cancelled except for those that are terminable by the member of Company or the Company Group Subsidiary, without penalty cost or without more than penalty, on 90 days’ or less notice;
(iivii) all Contracts that require each Contract (A) in which the Company or the Company Subsidiary have agreed to purchase a minimum quantity of goods relating to any member product or product candidate or (B) pursuant to which the Company or the Company Subsidiary has continuing obligations or interests involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company Group to purchase its total requirements of any product or service from a third party the Company Subsidiary, in each case, except for those that are terminable by the Company or that contain “take the Company Subsidiary, without cost or pay” provisionspenalty, on 90 days’ or less notice;
(iiiviii) all Contracts that provide each Contract for the indemnification by disposition of any member significant portion of the assets or business of the Company Group of any Person or the assumption Company Subsidiary or any agreement for the acquisition, directly or indirectly, of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount portion of stock the assets or assets business of any other Person or any real property (whether by merger, sale of stock, sale of stock or assets or otherwise);
(vix) all brokereach Contract creating or governing any joint venture, distributorpartnership, dealerstrategic alliance, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (collaboration or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of timearrangement;
(x) any Contracts each Contract pursuant to which the Company or the Company Subsidiary has been granted by any member Person any license to any Intellectual Property, or any other option, covenant not to ▇▇▇, non-assertion protection, freedom from suit, release, or settlement in respect of Intellectual Property, in each case if material with respect to any of the Company Group is Products (provided that the foregoing does not include any licenses for off-the-shelf personal computer software that are commercially available under non-discriminatory pricing terms on a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Groupretail basis);
(xi) all Contracts between each Contract that relates to the supply or among manufacturing of any member of Company Product requiring or otherwise involving the potential payment by or to the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company GroupSubsidiary of more than (A) on $100,000 in any fiscal year or (B) $500,000 in the other handaggregate, except for those relating exclusively to routine office and scientific supplies;
(xii) all collective bargaining agreements each Contract (other than trade debt incurred in the ordinary course of business consistent with past practice) related to (A) borrowed money and any guarantees thereof or Contracts with (B) the granting of material Liens over the property or assets of the Company or the Company Subsidiary;
(xiii) each Contract under which the Company or the Company Subsidiary have, directly or indirectly, made any Union advance, loan, extension of credit or capital contribution to, or other investment in, any Person other than the Company Subsidiary, in each case in an amount in excess of $500,000;
(xiv) each Contract containing a standstill or similar obligation (which remains in effect) pursuant to which any member Affiliate of the Company Group is may be prohibited or otherwise restricted from acquiring assets or securities of another party or any of its Affiliates;
(xv) each Contract under which the Company or the Company Subsidiary has expressly agreed to indemnify any Person against any claim of infringement, misappropriation, or violation of the Intellectual Property rights of a partythird person arising from the practice of Company Intellectual Property, other than Contracts entered into in the ordinary course of business consistent with past practice;
(xvi) each Contract that would prohibit or materially delay the consummation of the Transactions or otherwise materially impair the ability of the Company to perform its obligations hereunder; and
(xiiixvii) any other Contract that “material contract” (as such term is material to defined in Item 601(b)(10) of Regulation S-K under the Company Group and not previously disclosed pursuant to this Section 3.10Securities Act).
(b) Each of the Material Contract Contracts is valid valid, binding and binding on the Company Group member party thereto in full force and effect and is enforceable in accordance with its terms by the Company and the Company Subsidiary party thereto, subject to the Bankruptcy and Equity Exception. Neither the Company nor the Company Subsidiary is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or material 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. No event or circumstance has occurred , nor, to the knowledge of the Company, does any condition exist that, with notice or lapse of time or both, would constitute an event a material default thereunder by the Company and the Company Subsidiary party thereto. To the knowledge of the Company, no other party to any Material Contract is in material default thereunder, nor does any condition exist that, with notice or lapse of time or both, would constitute a material default thereunder of such other party. Neither the Company nor the Company Subsidiary has received any written notice of termination or cancellation under any Material Contract or result received any written notice of breach or default under any Material Contract, which breach or default has not been cured, except for such terminations, cancellations, breaches or defaults that would not reasonably be expected to have, individually or in the aggregate, a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunderCompany Material Adverse Effect. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been The Company has made available to BuyerParent or its Representatives accurate and complete copies of all of the Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Salix Pharmaceuticals LTD)
Material Contracts. (ai) Except for this Agreement, Section 3.10(a3.01(o) of the Company Disclosure Schedules lists each Letter sets forth a true and complete list, as of the following Contracts date of the Original Agreement, and the Company has made available to Parent true and complete copies of:
(A) each contract, lease, license, note, bond or other agreement (each, a “Contract”) that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(B) each employment, consulting, severance, termination and indemnification Contract between the Company or any member of its Subsidiaries and director or officer of the Company Group (or any such Contracts, together with all Contracts concerning the occupancy, management Subsidiary or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract involving aggregate consideration other employee earning cash compensation in excess of $100,000 and which, in per year;
(C) each case, cannot be cancelled by Contract to which the member Company or any of its Subsidiaries is a party that (I) materially restricts the ability of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets its Subsidiaries to compete in any business or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete person in any line of business or with to offer, sell, license, supply or distribute any Person service or in product, or (II) grants exclusive rights to any geographic area person, except for any such Contract that may be canceled, without material penalty or during other liability to the Company or any period of timeits Subsidiaries, upon notice of 90 days or less;
(xD) any Contracts each Contract to which any member of the Company Group or any of its Subsidiaries is a party that provide may call for aggregate payments by the Company or any of its Subsidiaries of more than $500,000, except for any joint venturesuch Contract that may be canceled, partnership without material penalty or similar arrangement by any member of other liability to the Company Groupor any of its Subsidiaries, upon notice of 90 days or less;
(xiE) all Contracts between or among any member of each Contract to which the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of its Subsidiaries is a party that calls for aggregate payments to the Company Groupor any of its Subsidiaries of more than $500,000, provided, that if a Contract does not specify an aggregate amount to be paid to the Company, then such Contract shall be disclosed pursuant to this subparagraph (E) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union if aggregate payments to which any member of the Company Group is a partypursuant to such Contract over the last 12 months shall have exceeded $500,000; and
(xiiiF) each loan and credit agreement, letter of credit, note, debenture, bond, indenture and other similar Contract pursuant to which any other Contract that is material to indebtedness of the Company Group or any of its Subsidiaries, in each case in excess of $100,000, is outstanding or may be incurred, other than any such Contract between or among the Company and not previously disclosed pursuant any of its Subsidiaries. Each Contract of the type described in clause (A) through (F) above is referred to this Section 3.10herein as a “Material Contract”.
(bii) Each All Material Contract is valid Contracts are valid, binding and binding on the Company Group member party thereto in accordance with its terms and is in full force and effecteffect in all material respects. None of the The Company Group member oris not, to Seller’s Knowledge, and has not received any written notice or has any Knowledge that any other party thereto is is, in breach of or material 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 such Material Contract. No , and there has not occurred any event or circumstance has occurred that, with notice or the lapse of time or the giving of notice or both, would constitute an event of default under any Material Contract or result in such a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyermaterial default.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (BTP Acquisition Company, LLC), Agreement and Plan of Merger (Image Entertainment Inc)
Material Contracts. (a) Except for the Original Merger Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xxi) of Section 3.10(a3.16(a) of the Company Disclosure Schedules lists each Schedule, as of the following Contracts of any member Original Execution Date, none of the Company Group (such or any of its Subsidiaries is a party to or bound by the following Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”)::
(i) each any Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company pursuant to Item 4 of the Company Group without penalty or without more than 90 days’ noticeInstructions to Exhibits of Form 20-F under the Exchange Act;
(ii) all Contracts that require any member Contract relating to the formation, creation, operation, management or control of any Subsidiary of the Company Group to purchase its total requirements of or any product other partnership, joint venture, strategic collaboration, global affiliation or service from a third party business cooperation, limited liability company or that contain “take or pay” provisionssimilar arrangement;
(iii) all Contracts that provide for any Contract involving a loan (other than accounts receivable from trade debtors in the indemnification by any member ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company Group and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person or any Contract relating to the making of any Person such loan, advance or the assumption of any Tax, environmental or other Liability of any Personinvestment for more than US$5,000,000;
(iv) all Contracts that relate to any Contract involving Indebtedness of the acquisition or disposition of any business, a material amount of stock or assets of any other Person Company or any real property (whether by merger, sale of stock, sale its Subsidiaries of assets or otherwise)more than US$5,000,000;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to any Contract (including so called take-or-pay or keep-well agreements) under which any member person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company Group is a partyor any of its Subsidiaries of more than US$5,000,000;
(vi) all employment agreements and Contracts with independent contractors any Contract granting or consultants (evidencing a Lien on any properties or similar arrangements) to which any member assets of the Company Group is a party and which are not cancellable without material penalty or without any of its Subsidiaries with value of more than 90 days’ noticeUS$5,000,000, other than a Permitted Encumbrances;
(vii) except for Contracts relating to trade receivablesany management service, consulting, financial advisory or any other similar type Contract and all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Groupwith investment or commercial banks;
(viii) all Contracts any Contract for the acquisition, disposition, sale, transfer or lease (including leases in connection with any Governmental Authority to which any member financing transactions) of properties or assets of the Company Group is or any of its Subsidiaries that have a party fair market value or purchase price of more than US$5,000,000 (“Government Contracts”)by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as to which claims are pending;
(ix) all any Contracts that limit involving any resolution or purport to limit the ability settlement of any member of the Company Group to compete actual or threatened litigation, arbitration, claim or other dispute with amount in any line of business or with any Person or in any geographic area or during any period of timecontroversy greater than US$5,000,000;
(x) any Contracts to which any member of the Company Group is Contract involving a party that provide for any joint venture, partnership standstill or similar arrangement by any member of the Company Grouparrangement;
(xi) all Contracts between any non-competition Contract or among other Contract that purports to limit, curtail or restrict in any member material respect the ability of the Company Group on the one hand and Seller or any Affiliate of Seller (other than its Subsidiaries to compete in any member geographic area, industry or line of the Company Group) on the other handbusiness;
(xii) all collective bargaining agreements or Contracts with any Union to which Contract for the employment of any member of the Company Group is a party; andsenior executive officer;
(xiii) any other Contract that is material contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than US$5,000,000;
(xiv) any Contract (other than Contracts granting Company Options, or Company RSs) giving the other party the right to terminate such Contract as a result of the Original Merger Agreement, this Agreement or the consummation of the Transactions, including the Merger, where (A) such Contract requires any payment in excess of US$5,000,000 to be made by the Company or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) 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, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the Company or any of its Subsidiaries;
(xvi) any Contract providing for (A) a license, covenant not to s▇▇ or other right granted by any Third Party under any Intellectual Property to the Company or any of its Subsidiaries, (B) a license, covenant not to s▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (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 of clauses (A) through (D), other than agreements for off-the-shelf Software and such Contracts that are not material to business of the Group Companies, taken as a whole, and not previously in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the ordinary course of business;
(xvii) any Contract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments of more than US$5,000,000 in any one year;
(xix) each Control Agreement and any other any Contract which (A) provides 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) provides the Company or any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (C) transfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Company;
(xx) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to this Section 3.10Item 7B or Item 19 of Form 20-F under the Exchange Act (including those that would be required to be disclosed if the Form 20-F were filed as of the Original Execution Date); or
(xxi) any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract described in clauses (i) to (xxi) and each such Contract that would be a Material Contract if it had not been filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract.”
(b) Each Except as would not have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Material Contract is a legal, valid and binding on the obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company Group member party thereto 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. None effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company and, to the knowledge of the Company Group member orCompany, to Seller’s Knowledgeno counterparty, any other party thereto is in breach of or default under (or is alleged to be in breach of or violation of, or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event ; (iv) to the knowledge of the Company, no person intends to terminate any Material Contract; and (v) none of the execution of the Original Merger Agreement, the execution of this Agreement or circumstance has occurred thatthe consummation of any Transaction shall constitute a default under, with notice give rise to cancellation rights under, or lapse otherwise adversely affect any of time or both, would constitute an event the rights of default any Group Company under any Material Contract Contract. The Company has furnished or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerParent true and complete copies of all Material Contracts, including any amendments thereto.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Zhang Ray Ruiping), Agreement and Plan of Merger (eHi Car Services LTD)
Material Contracts. Section 4.11 of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of all Contracts of the following types to which the Company or any Company Subsidiary is a party or to which any of their respective assets or property are bound:
(a) Section 3.10(aany Contract pursuant to which the Company or any Company Subsidiary has provided funds to or made any loan, capital contribution or other investment in, or assumed any liability or obligation of, any Person, including take-or-pay contracts or keepwell agreements;
(b) any Contract with any Governmental Authority (other than any Statutory Plans) that involves an aggregate future or potential liability or payable, as the case may be, in excess of $350,000 or is otherwise material;
(c) any Contract with any Related Person of the Company (other than any Company Plans or Statutory Plans);
(d) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” that the Company would reasonably expect to prevent or delay the consummation of the transactions contemplated by this Agreement;
(e) any Contract pursuant to which the Company is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company), (i) any real property, or (ii) any tangible personal property and, in the case of clause (ii) that involves an aggregate future or potential liability or receivable, as the case may be, in excess of $100,000;
(f) any Contract providing for indemnification or any guaranty by the Company or any Subsidiary thereof, in each case that is material to the Company and its Subsidiaries, taken as a whole, other than (A) any guaranty by the Company or a Subsidiary thereof of any of the obligations of (1) the Company or another wholly owned Subsidiary thereof or (2) any Subsidiary (other than a wholly owned Subsidiary) of the Disclosure Schedules lists each Company that was entered into in the Ordinary Course of Business pursuant to or in connection with a customer Contract, or (B) any Contract providing for indemnification of customers or other Persons pursuant to Contracts entered into in the Ordinary Course of Business;
(g) any Contract that contains any provision that requires the purchase of all or a majority of the following Contracts Company’s or any of its Subsidiaries’ requirements for a given product or service from a given third party, which product or service is material to the Company and its Subsidiaries, taken as a whole;
(h) any Contract relating to settlement or other final disposition of any member of the Company Group (such ContractsAction since January 1, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):2020;
(i) any Contract that results in any Person holding a power of attorney from the Company or any of its Subsidiaries that relates to the Company, any of its Subsidiaries or their respective business other than in the Ordinary Course of Business;
(j) any Contract for the purchase of any debt or equity security or other ownership interest of any Person, or for the issuance of any debt or equity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other ownership interests of, the Company or any Company Subsidiary;
(k) any hedging, futures, options or other derivative Contract;
(l) any mortgages, indentures, guarantees, loans, or credit agreements, security agreements, or other Contracts, in each case evidencing Indebtedness of the Company or any Company Subsidiary (other than any Company Plans or Statutory Plans, in each case, that provide severance or other termination-related payments);
(m) any partnership, joint venture, limited liability company agreement or similar Contract involving aggregate consideration relating to the formation, creation, operation, management, or control of any material joint venture, partnership, or limited liability company (other than any Organizational Documents of the Company or the Company Subsidiaries);
(n) any Contract that purports to materially limit or restrict the rights of the Company or any of its Subsidiaries (or, at any time after the consummation of the First Merger or Second Merger, Parent or any of its Subsidiaries) (A) to engage in any line of business, (B) compete with any Person or solicit any client or customer, or (C) operate in any geographical location;
(o) any Contract that grants any right of first refusal, right of first offer, or similar right with respect to any material assets, rights, or properties of the Company or any of its Subsidiaries;
(p) any Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party or upon consummation of the First Merger or Second Merger will obligate Parent or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party;
(q) any Contract that obligates the Company or any of its Subsidiaries to make any capital expenditures in any twelve month period in an amount in excess of $100,000 and which, (other than purchasing activities in each case, cannot be cancelled by the member Ordinary Course of the Company Group without penalty or without more than 90 days’ noticeBusiness);
(iir) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate Contract relating to the future acquisition or disposition of any businessdisposition, a material amount of stock directly or assets of any other Person or any real property indirectly (whether by merger, sale of stock, sale of assets assets, or otherwise), by the Company or any of its Subsidiaries of material operating assets (other than purchasing activities or inventory sales in the Ordinary Course of Business) or capital stock or other equity interest of another Person (other than the Company or a Company Subsidiary), other than (i) acquisitions pursuant to budgeted capital expenditures in the Ordinary Course of Business or (ii) acquisitions or dispositions that do not individually have a value in excess of $500,000;
(s) any Collective Bargaining Agreement;
(t) any employment, severance, retention, change in control, bonus or other Contract with any current or former Service Provider (1) that provides for payment of any cash or other compensation or benefits in connection with the consummation of the transactions contemplated by this Agreement, other than any severance or termination payments and benefits, or (2) that expressly provides for the payment of severance or termination payments (other than (x) statutory severance benefits or termination payments or (y) only with respect to international offer letters or employment contracts, payments or benefits in lieu of notice) upon a termination of the applicable Service Provider’s employment;
(u) any IP Licenses; or
(v) all brokerany other Contract, distributorother than purchase orders entered into in the Ordinary Course of Business, dealerCompany Plans and Statutory Plans, manufacturer’s representativethat by its terms calls for aggregate payments or receipts by the Company and its Subsidiaries under such Contract of more than $100,000 over any twelve month period. Collectively, franchise, agency, sales promotion, market research, marketing consulting and advertising the Contracts that are required to which any member be listed on Section 4.11 of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) Disclosure Letter are referred to which any member herein as the “Material Contracts”. Except as set forth on Section 4.11 of the Company Group is a party Disclosure Letter, the Company and which its Subsidiaries are not cancellable without material penalty party to or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement bound by any member Material Contracts. The Company has made available to Parent correct and complete copies of the all Company Group;
(xi) all Contracts between or among Material Contracts, including any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) amendments thereto. Each Material Contract is is, subject to the Equitable Exceptions, valid and binding on the Company Group member and/or its Subsidiaries, as applicable, and to the Company’s Knowledge, each other party thereto in accordance with its terms and is in full force and effecteffect and will continue to be in full force and effect on identical terms immediately following the Closing Date. None Neither the Company, any Company Subsidiary nor, to the Knowledge of the Company Group member or, to Seller’s KnowledgeCompany, any other party thereto to any Material Contract is in breach of or default under (or is alleged to be in breach of violation of, or default under), and there does not exist any event which, with the giving of notice or has provided the lapse of time, would constitute a breach or received default by the Company, any notice Company Subsidiary or, to the Knowledge of the Company, any intention to terminateother party under, any Material Contract. No event , in each case except for such breaches, defaults and events as to which requisite waivers or circumstance consents have been obtained or which would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, nor has occurred that, with notice the Company or lapse any of time or both, would constitute an event of default under its Subsidiaries received any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes claim of any right such breach, violation or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyerdefault.
Appears in 2 contracts
Sources: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Patterson Uti Energy Inc)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists Seller has provided to Buyer each of the following Contracts of any member to which, as of the date of this Agreement, the Company Group or any of its Subsidiaries, if any, is a party (such Contractseach, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all a “Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material ContractsContract”):
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, can(A) not be cancelled by to (or otherwise restricting or limiting the member ability of the Company Group without penalty or without more than 90 days’ noticeany of its Subsidiaries, if any, to) compete in any line of business or geographic area or (B) to restrict the ability of the Company or any of its Subsidiaries, if any, to conduct business in any geographic area;
(ii) all Contracts that require each Contract (other than any member benefit plans of the Company) that is reasonably likely to require, during the remaining term of such Contract, annual payments by the Company Group to purchase or any of its total requirements of any product or service from a third party or Subsidiaries that contain “take or pay” provisionsexceed $50,000;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of granting to any Person an option or the assumption of a first refusal, first offer or similar preferential right to purchase or acquire any Tax, environmental or other Liability of any Personmaterial Company Assets;
(iv) all Contracts that relate material contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment (other than agreements with employees, non-exclusive licenses granted to the acquisition Company’s or disposition of any businessits Subsidiaries’ customers, a material amount of stock or assets of any other Person or any real property (whether by mergerand non-exclusive licenses to commercially available, sale of stockoff-the-shelf Software that have been granted on standardized, sale of assets or otherwisegenerally available terms);
(v) all brokerpartnership, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a partyjoint venture or other similar agreements or arrangements;
(vi) all employment agreements and Contracts with independent contractors any agreement relating to indebtedness for borrowed money or consultants the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or similar arrangementsa series of related agreements) to which any member of the Company Group is a party and which are with an aggregate outstanding principal amount not cancellable without material penalty or without more than 90 days’ noticeexceeding $100,000;
(vii) except any agreement for Contracts relating to trade receivablesthe disposition or acquisition by the Company or any of its Subsidiaries, all Contracts relating to indebtedness (includingif any, without limitation, guarantees) of any member with material obligations of the Company Groupor any of its Subsidiaries, if any, (other than confidentiality obligations) remaining to be performed or material Liabilities of the Company or any of its Subsidiaries, if any, continuing after the date of this Agreement, of any material business or any material amount of assets other than in the ordinary course of business;
(viii) all Contracts any agreement with any Governmental Authority to which any member (A) the top 10 customers of the Company Group is and its Subsidiaries, if any, taken as a party whole, as applicable, and (“Government Contracts”)B) the top 10 suppliers of the Company and its Subsidiaries, if any, taken as a whole, as applicable, in each case, for the 2023 fiscal year measured by the aggregate obligations paid or agreed to pay to or by the Company, as applicable;
(ix) all Contracts that limit any agreement restricting or purport limiting the payment of dividends or the making of distributions to limit the ability of any member of the Company Group to compete in any line of business stockholders, including intercompany dividends or with any Person distributions other than such restrictions or in any geographic area or during any period of timelimitations as are required by applicable Law;
(x) any Contracts to which any member Contract for the development of Intellectual Property, other than those entered into in the ordinary course of business with Company Group is a party that provide employees and contractors on the Company’s standard form for any joint venture, partnership or similar arrangement by any member of the Company Group;such Contracts; and
(xi) to the extent not provided pursuant to another subsection of this Section 3.12(a), all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining material agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10Governmental Authority.
(b) A true and complete copy of each Company Material Contract (including any amendments thereto) entered into prior to the date of this Agreement has been made available to Buyer prior to the date of this Agreement. Each Company Material Contract is a valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect. None agreement of the Company Group member oror its applicable Subsidiary, except where the failure to be valid and binding would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company or such Subsidiary nor, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto thereto, is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any such Company Material Contract. No event or circumstance has occurred thatAs of the date of this Agreement, there are no material disputes in connection with notice or lapse any such Company Material Contract. As of time or boththe date of this Agreement, would constitute an event of default no party under any Company Material Contract has given written notice of its intent to terminate or result in otherwise seek a termination thereof or 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 amendment to such Company Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 2 contracts
Sources: Share Purchase Agreement (Connexa Sports Technologies Inc.), Share Exchange Agreement (Connexa Sports Technologies Inc.)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member Other than this Agreement or as made available to Purchaser, none of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
Subsidiaries is a party to or bound by: (i) each any Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC; (ii) any Contract containing covenants binding upon the Company or any Company Subsidiary that materially restricts the ability of the Company Group without penalty or without more than 90 days’ notice;
any Company Subsidiary (ii) all Contracts that require any member or which, following the consummation of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit Transactions could materially restrict the ability of any member of the Company Group Company) to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on the Company Group member party thereto Subsidiaries, taken as a whole, as of the date of this Agreement, or with any person or in accordance any geographic area, except for any such Contract that may be cancelled without penalty by the Company or any Company Subsidiary upon notice of 60 days or less; (iii) any Contract with its terms and is in full force and effect. None respect to a material joint venture or material partnership agreement (excluding information technology Contracts); (iv) any Contract with any director, officer or Affiliate of the Company Group member oror any Company Subsidiary (other than any Company Employee Benefit Plan); (v) any Contract for the acquisition, to Seller’s Knowledgedisposition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise); (vi) any employment, deferred compensation, severance, bonus, retirement or other similar agreement entered into by the Company or any Company Subsidiary, on the one hand, and any director or officer of the Company or any other party thereto is employee of the Company or any Company Subsidiary receiving annual cash compensation of $150,000 or more, on the other hand; (vii) any Contract, other than Leases, contemplating payments by the Company or any Subsidiary of more than $250,000 in breach of any calendar year; and (viii) each amendment, supplement or default under (or is alleged to be modification in breach of or default under), or has provided or received any notice respect of any intention of the foregoing Contracts or any commitment or agreement to terminate, enter into any of the foregoing contracts. Each such Contract described in clauses (i) through (viii) is referred to herein as a “Company Material Contract. No event or circumstance has occurred that.” “Contract” means any agreement, with notice or lapse of time or bothcontract, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration obligation, arrangement, undertaking or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyercommitment that is legally binding.
Appears in 2 contracts
Sources: Stock Purchase and Sale Agreement (Steel Excel Inc.), Stock Purchase and Sale Agreement (iGo, Inc.)
Material Contracts. (a) Section 3.10(a3.21(a) of the Disclosure Schedules lists each Company Letter contains a true, complete and correct list of the following Contracts to which the Company or any of its Subsidiaries is a party or by which any member property or asset of the Company Group (such Contractsor any of its Subsidiaries is bound, together with all Contracts concerning in each case as of the occupancydate of this Agreement, management or operation of any Real Property (including without limitation, brokerage contracts) other than Company Plans listed or otherwise disclosed in on Section 3.11(b3.18(a) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of Letter (collectively, the Disclosure Schedules, being “Material Contracts”):
(i) (A) each Contract involving aggregate consideration that limits the freedom of the Company, any of its Subsidiaries or any of its Affiliates to compete or engage in excess any line of $100,000 business or geographic region or with any Person, sell, supply or distribute any product or service or that otherwise has the effect of restricting in any material respect the Company, its Subsidiaries or Affiliates, taken as a whole, from the development, marketing or distribution of products and whichservices, in each case, cannot be cancelled by the member in any geographic area or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company Group without penalty or without more than 90 days’ noticeand its Subsidiaries) after the Acceptance Time;
(ii) all Contracts that require each partnership, joint venture or limited liability company agreement (other than any member of such agreement solely between or among the Company Group and its wholly owned Subsidiaries) or similar Contract that is material to purchase the Company and its total requirements of any product or service from Subsidiaries, taken as a third party or that contain “take or pay” provisionswhole;
(iii) all each Contract entered into since January 1, 2014: (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries of any business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer, or similar transaction), or (B) pursuant to which the Company or any of its Subsidiaries will acquire or is obligated to acquire any interest or make an investment (other than the Company or any of its Subsidiaries), in each case, other than such Contracts that provide for the indemnification by any member of are immaterial to the Company Group of any Person or the assumption of any Taxand its Subsidiaries, environmental or other Liability of any Persontaken as a whole;
(iv) all Contracts that relate each Contract with respect to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stockamalgamation, consolidation or other business combination, sale of assets assets, sale of shares in the share capital or otherwiseother voting securities, tender offer, exchange offer, or similar transaction) pursuant to which the Company or any of its Subsidiaries has (A) material continuing indemnification obligations (other than in the ordinary course in connection with the development, sale or licensing of Company Products), or (B) any “earn-out” or similar contingent payment obligations, in each case, (x) other than any such obligations that are immaterial to the Company and its Subsidiaries, taken as a whole, or (y) other than any Contract that provides solely for the acquisition of inventory, raw materials or equipment in the ordinary course;
(v) any and all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts required to which any member be listed on (x) Section 3.16(e) or (y) Section 3.16(f) of the Company Group is a partyLetter;
(vi) all employment agreements and Contracts with independent contractors (A) each Contract that grants any right of first refusal or consultants (right of first offer in favor of a Third Party or similar arrangements) to which any member that materially limits the ability of the Company, any of its Subsidiaries or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or material assets or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeits Subsidiaries) after the Acceptance Time;
(vii) except (A) each supply Contract that contains any exclusivity rights (other than customization work for Contracts customers relating to trade receivablesCompany Products) or “most favored nations” provisions or minimum use, all supply or display requirements that is binding on the Company or its Affiliates or (B) Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company Groupand its Subsidiaries) after the Acceptance Time;
(viii) all Contracts with other than instruments providing for indebtedness that would not, in the aggregate, exceed $50,000,000, each Contract that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indebtedness (including obligations under any Governmental Authority to which capitalized leases but excluding agreements between the Company and any member wholly owned Subsidiary of the Company Group is a party (“Government Contracts”);
(ixor between wholly owned Subsidiaries of the Company) all Contracts that limit or purport pursuant to limit which the ability Company or any of its Subsidiaries guarantees any such indebtedness of any member other Person (other than the Company or another wholly owned Subsidiary of the Company), (B) materially restricts the Company’s and its Subsidiaries’ (taken as a whole) ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract its Subsidiaries that is material to the Company Group and its Subsidiaries, taken as a whole, or (D) is an interest rate derivative, currency derivative, forward purchasing, swap or other hedging contract;
(ix) each collective bargaining agreement and each Contract with any labor union, works council or similar organization;
(x) each Contract that provides for a settlement or conciliation (A) with any Governmental Authority that materially (x) restricts or imposes material obligations upon the Company or its Subsidiaries (taken as a whole) or (y) materially disrupts the business of the Company and its Subsidiaries (taken as a whole) as currently conducted, or (B) that would require the Company or any of its Subsidiaries to pay consideration of more than $10,000,000 after the date of this Agreement; and
(xi) each Contract not previously disclosed pursuant to otherwise described in any other subsection of this Section 3.103.21(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company.
(b) Each A true, correct and complete copy of each Material Contract in effect as of the date of this Agreement has been made available to Buyer or publicly filed with the SEC prior to the date of this Agreement. Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is valid a valid, binding and binding enforceable obligation of the Company or one of its Subsidiaries, on the Company Group member one hand, and, to the knowledge of the Company, of the other party thereto or parties thereto, on the other hand, in accordance with its terms terms, subject to the Enforceability Exceptions, and each Material Contract is in full force and effect. None , (ii) the Company and each of its Subsidiaries has performed all obligations required to be performed by it under each Material Contract to date and, to the knowledge of the Company, each other party to each Material Contract has performed all obligations required to be performed by it under such Material Contract to date, (iii) none of the Company Group member oror any of its Subsidiaries has received written notice of any, and, to Seller’s Knowledgethe knowledge of the Company, none of the Company or any of its Subsidiaries is in, default or material breach under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a default or material breach under) any Material Contract and (iv) neither the Company nor any of its Subsidiaries has received any written notice from any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention such Material Contract that such party intends to terminate, or not renew, any such Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.
Appears in 2 contracts
Sources: Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
Material Contracts. (a) Section 3.10(a6.12(a) of the Company Disclosure Schedules lists sets forth a true, correct and complete list of, and the Company has made available to SPAC (including written summaries of oral Contracts), true, correct and complete copies of, each Contract to which any Target Company is a party or by which any Target Company, or any of the following Contracts of any member its properties or assets, are bound (each Contract required to be set forth on Section 6.12(a) of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being a “Company Material ContractsContract”):) that:
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts contains covenants that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Target Company Group (A) to compete in any line of business or with any Person or in any geographic area or during to sell, or provide any period service or product or solicit any Person, including any non-competition covenants, employee and customer non-solicit covenants, exclusivity restrictions, rights of timefirst refusal or first offer or most-favored pricing clauses (in each case other than pursuant to confidentiality arrangements entered into in the ordinary course of business) or (B) to purchase or acquire an interest in any other Person;
(ii) relates to the formation, creation, operation, management or control of any joint venture, profit-sharing, partnership, limited liability company or other similar agreement or arrangement;
(iii) evidences Indebtedness of the type referred to in clauses (a) through (e) of the definition thereof of any Target Company having an outstanding principal amount in excess of $300,000;
(iv) involves any exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices other than those entered into in the ordinary course of business of the Target Companies on behalf of a customers or any ordinary course transactions that are settled on a daily basis;
(v) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or shares or other equity interests of any Target Company or another Person in each case with an aggregate value in excess of $300,000;
(vi) relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of any Target Company, its business or material assets;
(vii) by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Target Companies under such Contract or set of related Contracts of at least $150,000 per year or $250,000 over the life of such Contracts;
(viii) pursuant to which any Target Company has been granted from a third party any license, right, immunity or authorization to use or otherwise exploit any Intellectual Property, excluding (A) Incidental Licenses, and (B) licenses for “shrink wrap”, “click wrap”, and “off the shelf” software, and (C) licenses for uncustomized software that is commercially available to the public generally with one-time or annual license, maintenance, support and other fees of less than $100,000;
(ix) pursuant to which any Target Company has (A) acquired from any third party any ownership right to any material Intellectual Property, excluding Contributor Agreements, or (B) transferred to any third party any ownership right to any material Intellectual Property;
(x) any Contracts pursuant to which any member of the Target Company Group is a has granted to any third party that provide for any joint venturelicense, partnership right, immunity or similar arrangement by authorization to use or otherwise exploit any member of the Company GroupOwned IP, excluding Incidental Licenses;
(xi) all Contracts between obligates the Target Companies to provide continuing indemnification or among any member a guarantee of obligations of a third party after the Company Group on the one hand and Seller or any Affiliate date hereof in excess of Seller (other than any member of the Company Group) on the other hand$100,000;
(xii) all collective bargaining each employment, severance, retention, change in control or other Contract (excluding customary form offer letters and other standard form agreements or Contracts entered into in the ordinary course of business) with any Union to which any member employee or other individual independent contractor of the Company Group is a party; andor any Target Company who receives annual base cash salary of $500,000 or more;
(xiii) is a labor agreement, collective bargaining agreement, or other labor-related agreement or arrangement with any labor union, labor organization, works council or other Contract employee-representative body;
(xiv) other than under its Organizational Documents, is between any (A) Target Company and (B) any Company Shareholder or any directors, officers or employees of a Target Company (other than at-will employment, assignment of Intellectual Property or confidentiality arrangements entered into in the ordinary course of business) or any of their respective Affiliates or other Related Person, including all non-competition, severance and indemnification agreements;
(xv) obligates the Target Companies to make any capital commitment or expenditure in excess of $500,000 (including pursuant to any joint venture);
(xvi) relates to a settlement of any Action requiring payments in excess of $500,000 or under which any Target Company has outstanding obligations (other than customary confidentiality or non-disparagement obligations);
(xvii) provides another Person (other than another Target Company or any manager, director or officer of any Target Company) with a power of attorney;
(xviii) is with a Material Merchant, Material Supplier or Material Vessel Owner; or
(xix) that is material will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company Group and not previously disclosed as an exhibit for a Form F-1 pursuant to this Section 3.10Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Each Except where the failure, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company, with respect to each Company Material Contract: (i) such Company Material Contract is valid and binding on and enforceable against the Target Company Group member party thereto in accordance with its terms and, to the Knowledge of the Company, each other party thereto, and is in full force and effect. None effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions), (ii) the consummation of the Transactions will not affect the validity or enforceability of any Company Group member Material Contract, (iii) no Target Company is in breach or default, and to the Company’s Knowledge, no event has occurred that with the passage of time or giving of notice or both would constitute a breach or default by any Target Company, or permit termination or acceleration by the other party thereto, under such Company Material Contract, (iv) to the Knowledge of the Company, no other party to such Company Material Contract is in breach or default, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default by such other party, or permit termination or acceleration by any Target Company, under such Company Material Contract, (v) no Target Company has received or served written or, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any oral notice of an intention by any intention party to terminate, any such Company Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Contract to terminate such Company Material Contract or result amend the terms thereof, other than modifications in a termination thereof or would cause or permit the acceleration or other changes ordinary course of business that do not adversely affect the Target Companies and (vi) no Target Company has waived any right or obligation or the loss of rights under any benefit thereunder. Complete and correct copies of each such Company Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 2 contracts
Sources: Business Combination Agreement (Home Plate Acquisition Corp), Business Combination Agreement (Home Plate Acquisition Corp)
Material Contracts. (a) Except for the Original Merger Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xxi) of Section 3.10(a3.16(a) of the Company Disclosure Schedules lists each Schedule, as of the following Contracts of any member Original Execution Date, none of the Company Group (such or any of its Subsidiaries is a party to or bound by the following Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”)::
(i) each any Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company pursuant to Item 4 of the Company Group without penalty or without more than 90 days’ noticeInstructions to Exhibits of Form 20-F under the Exchange Act;
(ii) all Contracts that require any member Contract relating to the formation, creation, operation, management or control of any Subsidiary of the Company Group to purchase its total requirements of or any product other partnership, joint venture, strategic collaboration, global affiliation or service from a third party business cooperation, limited liability company or that contain “take or pay” provisionssimilar arrangement;
(iii) all Contracts that provide for any Contract involving a loan (other than accounts receivable from trade debtors in the indemnification by any member ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company Group and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person or any Contract relating to the making of any Person such loan, advance or the assumption of any Tax, environmental or other Liability of any Personinvestment for more than US$5,000,000;
(iv) all Contracts that relate to any Contract involving Indebtedness of the acquisition or disposition of any business, a material amount of stock or assets of any other Person Company or any real property (whether by merger, sale of stock, sale its Subsidiaries of assets or otherwise)more than US$5,000,000;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to any Contract (including so called take-or-pay or keep-well agreements) under which any member person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company Group is a partyor any of its Subsidiaries of more than US$5,000,000;
(vi) all employment agreements and Contracts with independent contractors any Contract granting or consultants (evidencing a Lien on any properties or similar arrangements) to which any member assets of the Company Group is a party and which are not cancellable without material penalty or without any of its Subsidiaries with value of more than 90 days’ noticeUS$5,000,000, other than a Permitted Encumbrances;
(vii) except for Contracts relating to trade receivablesany management service, consulting, financial advisory or any other similar type Contract and all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Groupwith investment or commercial banks;
(viii) all Contracts any Contract for the acquisition, disposition, sale, transfer or lease (including leases in connection with any Governmental Authority to which any member financing transactions) of properties or assets of the Company Group is or any of its Subsidiaries that have a party fair market value or purchase price of more than US$5,000,000 (“Government Contracts”)by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as to which claims are pending;
(ix) all any Contracts that limit involving any resolution or purport to limit the ability settlement of any member of the Company Group to compete actual or threatened litigation, arbitration, claim or other dispute with amount in any line of business or with any Person or in any geographic area or during any period of timecontroversy greater than US$5,000,000;
(x) any Contracts to which any member of the Company Group is Contract involving a party that provide for any joint venture, partnership standstill or similar arrangement by any member of the Company Grouparrangement;
(xi) all Contracts between any non-competition Contract or among other Contract that purports to limit, curtail or restrict in any member material respect the ability of the Company Group on the one hand and Seller or any Affiliate of Seller (other than its Subsidiaries to compete in any member geographic area, industry or line of the Company Group) on the other handbusiness;
(xii) all collective bargaining agreements or Contracts with any Union to which Contract for the employment of any member of the Company Group is a party; andsenior executive officer;
(xiii) any other Contract that is material contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than US$5,000,000;
(xiv) any Contract (other than Contracts granting Company Options, or Company RSs) giving the other party the right to terminate such Contract as a result of the Original Merger Agreement, this Agreement or the consummation of the Transactions, including the Merger, where (A) such Contract requires any payment in excess of US$5,000,000 to be made by the Company or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) 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, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the Company or any of its Subsidiaries;
(xvi) any Contract providing for (A) a license, covenant not to ▇▇▇ or other right granted by any Third Party under any Intellectual Property to the Company or any of its Subsidiaries, (B) a license, covenant not to ▇▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (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 of clauses (A) through (D), other than agreements for off-the-shelf Software and such Contracts that are not material to business of the Group Companies, taken as a whole, and not previously in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the ordinary course of business;
(xvii) any Contract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments of more than US$5,000,000 in any one year;
(xix) each Control Agreement and any other any Contract which (A) provides 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) provides the Company or any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (C) transfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Company;
(xx) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to this Section 3.10Item 7B or Item 19 of Form 20-F under the Exchange Act (including those that would be required to be disclosed if the Form 20-F were filed as of the Original Execution Date); or
(xxi) any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract described in clauses (i) to (xxi) and each such Contract that would be a Material Contract if it had not been filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract.”
(b) Each Except as would not have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Material Contract is a legal, valid and binding on the obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company Group member party thereto 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. None effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company and, to the knowledge of the Company Group member orCompany, to Seller’s Knowledgeno counterparty, any other party thereto is in breach of or default under (or is alleged to be in breach of or violation of, or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event ; (iv) to the knowledge of the Company, no person intends to terminate any Material Contract; and (v) none of the execution of the Original Merger Agreement, the execution of this Agreement or circumstance has occurred thatthe consummation of any Transaction shall constitute a default under, with notice give rise to cancellation rights under, or lapse otherwise adversely affect any of time or both, would constitute an event the rights of default any Group Company under any Material Contract Contract. The Company has furnished or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerParent true and complete copies of all Material Contracts, including any amendments thereto.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ocean Imagination L.P.), Agreement and Plan of Merger (Ctrip Investment Holding Ltd.)
Material Contracts. (a) Section 3.10(a) For all purposes of the Disclosure Schedules lists each and under this Agreement, a “Material Contract” shall mean any of the following Contracts to which the Company or any of its Subsidiaries is a party or by which any member assets of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation any of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) its Subsidiaries are bound as of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) date of the Disclosure Schedules, being “Material Contracts”):this Agreement:
(i) each any Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Company Group without penalty or without more than 90 days’ noticeSecurities Act;
(ii) all any Contract (or group of related Contracts with the same Person or its Affiliates), other than any Lessor Lease and any other lease, license or development, redevelopment or construction Contract, involving (A) the payment or receipt of amounts by the Company or any of its Subsidiaries of more than $1,000,000 in any calendar year or more than $5,000,000 in the aggregate or (B) future payments (including by way of acceleration) of more than $1,000,000 in any calendar year that require are conditioned on, in whole or in part, or required in connection with, the consummation of any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisionsTransactions;
(iii) all Contracts that provide for any Contract relating to Indebtedness in excess of $3,000,000 or mortgaging, pledging or otherwise placing a Lien on any of the indemnification by any member assets of the Company Group or its Subsidiaries with a value in excess of $3,000,000, restricting the payment of dividends or other distributions of assets by any of the Company or its Subsidiaries or providing for the guaranty of Indebtedness of any Person in excess of $3,000,000;
(iv) any Contract that contains a put, call, right of first refusal or similar right pursuant to which the assumption Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any Tax, environmental equity interests or other Liability assets of any Person;
(ivv) all Contracts that relate other than with respect to any wholly-owned Subsidiary of the Company, any partnership, limited liability company, joint venture, strategic alliance or other similar agreement or arrangement relating to the acquisition formation, creation, operation, management or disposition control of any businesspartnership, a limited liability company, joint venture or strategic alliance that is material amount of stock or assets of any other Person to the Company or any real property (whether by mergerof its Subsidiaries, sale of stockor in which the Company, sale of assets directly or otherwise);
(v) all brokerindirectly, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is owns more than a partytwo percent voting or economic interest;
(vi) all except for indemnification, compensation, employment agreements or other similar arrangements between the Company or any of its Subsidiaries, on the one hand, and Contracts with independent contractors any current or consultants (former director or similar arrangements) officer thereof, on the other hand, any Contract to which any member of the Company Group or any of its Subsidiaries is a party and which are not cancellable without material penalty that would be required to be disclosed pursuant to Item 404 of Regulation S-K under the Securities Act in the Company’s Form 10-K or without more than 90 days’ noticeproxy statement pertaining to an annual meeting of stockholders;
(vii) except for Contracts relating any Contract containing a standstill or similar agreement pursuant to trade receivables, all Contracts relating which the Company or any of its Subsidiaries’ has ongoing obligations to indebtedness (including, without limitation, guarantees) not acquire assets or securities of any member other party and, to the extent not entered into in the ordinary course of business or in connection with any Lessor Lease or other lease, license, development, redevelopment, construction or other commercial Contract, any Contract under which the Company Groupor any of its Subsidiaries has material ongoing indemnification obligations;
(viii) all Contracts with any Governmental Authority Contract (A) that would or would be reasonably expected to prevent or materially impede or delay the Company’s ability to consummate the Transactions or (B) under which any member a sale of a majority of the consolidated assets of the Company Group is and its Subsidiaries, taken as a party (“Government Contracts”)whole, would require a payment by, result in a breach or constitute a default by, or result in the termination, acceleration or loss of any benefit of, the Company or any of its Subsidiaries;
(ix) all Contracts any non-competition Contract or other Contract that limit (A) limits or purport purports to limit in any material respect the ability type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Affiliates) may engage, or the manner or locations in which any of them may so engage in any business, (B) could require the disposition of any member material assets or line of business of the Company Group or its Subsidiaries or, after the Effective Time, Parent or its Affiliates or (C) prohibits or limits the right of the Company or any of its Subsidiaries to compete use, transfer, license, distribute or enforce any of their respective Company Intellectual Property, other than limitations on enforcement arising from non-exclusive licenses of Company Intellectual Property entered into in any line the ordinary course of business or with any Person or in any geographic area or during any period of timebusiness;
(x) any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial instrument, contract or arrangement, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, other than (i) Contracts related to which any member the purchase of raw materials or inventory in the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member ordinary course of business (ii) Contracts relating to the Company Grouphedging of utility expenses;
(xi) all Contracts between or among any member of Contract pursuant to which the Company Group on the one hand and Seller or any Affiliate of Seller its Subsidiaries is a party under which any third Person has granted to the Company or any of its Subsidiaries, or the Company or any of its Subsidiaries has granted to any third Person, any license, covenant or other rights to or under Intellectual Property (other than software license agreements for any member third-party off-the-shelf generally commercially available software for no fee or an aggregate license fee of the Company Group) on the other handless than $500,000 per year);
(xii) all collective bargaining agreements any Contract that provides for the acquisition or Contracts with any Union disposition, directly or indirectly (by merger or otherwise) of assets or capital stock (A) for aggregate consideration under such Contract in excess of $1,000,000 or (B) pursuant to which any member of the Company Group is a party; andor its Subsidiaries has continuing “earn-out” or other contingent payment obligations;
(xiii) any other Contract that is material relating to settlement of any administrative or judicial proceedings, in each case, individually in excess of $1,000,000 or which otherwise provides for equitable relief, under which there are outstanding obligations (including settlement agreements) of the Company or any of its Subsidiaries;
(xiv) any Lessor Lease providing for annual payments to the Company Group or any of its Subsidiaries in excess of $2,000,000 in aggregate annual base rent for calendar year 2015 and any Lessee Leases; and
(xv) any Contract, or group of related Contracts with the same Person or its Affiliates, the termination or breach of which would reasonably be expected to have a Company Material Adverse Effect and is not previously disclosed pursuant to this Section 3.10clauses “(i)” through “(xiv)”above or any commitment or agreement to enter into any of the foregoing.
(b) Section 3.12(b) of the Company Disclosure Letter sets forth a complete and accurate list of all Material Contracts to which the Company or any of its Subsidiaries is a party as of the date of this Agreement. True and complete copies of all such Material Contracts (including all exhibits and schedules thereto) have been (i) publicly filed with the SEC and are publicly available as of the date hereof or (ii) made available to Parent.
(c) Each Material Contract is valid and binding on the Company Group member (and/or each such Subsidiary of the Company party thereto in accordance with its terms thereto) and, to the Knowledge of the Company, each other party thereto, and is in full force and effect. None , enforceable against the Company or each such Subsidiary of the Company Group member orparty thereto, as the case may be, in accordance with its terms, subject to the Enforceability Limitations, and neither the Company nor any of its Subsidiaries that is a party thereto, nor, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto thereto, is in breach of in any material respect of, or default under (or is alleged to be in breach of or default any material respect under), or has provided or received any notice of any intention to terminate, any such Material Contract. No , and no event or circumstance has occurred that, that with notice or lapse of time or both, both would constitute an event such a breach or default thereunder by the Company or any of default its Subsidiaries, or, to the Knowledge of the Company, any other party thereto, or permit termination, material modification or acceleration by any third party thereunder. As of the date hereof, neither the Company nor any of its Subsidiaries has received any written notice of termination or cancellation under any Material Contract or result received any written notice of breach in a termination thereof any material respect or would cause or permit the acceleration or other changes of any right or obligation or the loss of default in any benefit thereunder. Complete and correct copies of each material respect under any Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have which breach has not been made available to Buyercured.
Appears in 2 contracts
Sources: Merger Agreement (Rouse Properties, Inc.), Merger Agreement (Brookfield Asset Management Inc.)
Material Contracts. (a) Except for any Government Contract or Government Bid that are set forth instead on Section 3.10(a4.16(a) of the Company Disclosure Schedules lists each of the following Contracts of any member Letter, Section 4.15(a) of the Company Group Disclosure Letter sets forth the following (such Contractseach of which, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being each Lease shall constitute a “Material ContractsContract”):
(i) each Contract involving aggregate consideration any “material contract” (as such term is defined in excess Item 601(b)(10) of $100,000 and which, in each case, cannot be cancelled Regulation S-K promulgated by the member of SEC), whether or not filed by the Company Group without penalty or without more than 90 days’ noticewith the SEC;
(ii) all Contracts that require any employment or consulting Contract (in each case with respect to which the Company or a Subsidiary of the Company has continuing obligations as of the date hereof) with any current (A) officer of the Company, (B) member of the Company Group to purchase its total requirements Board, or (C) Company Employee providing for an annual base salary or payment in excess of any product or service from a third party or that contain “take or pay” provisions$100,000;
(iii) all Contracts that provide any Contract providing for the indemnification or any guaranty by any member of the Company Group or any Subsidiary thereof, in each case that is material to the Company and its Subsidiaries, taken as a whole, other than any Contract providing for indemnification of any Person or third party claims under Contracts with customers entered into in the assumption ordinary course of any Tax, environmental or other Liability of any Personbusiness;
(iv) all Contracts any Contract that relate purports to limit in any material respect the right of the Company or any of its Subsidiaries (or, at any time after the consummation of the Merger, Parent or any of its Subsidiaries) to (A) engage in any line of business, (B) compete with any Person or solicit any client or customer, or (C) operate in any geographical location;
(v) any Contract relating to the acquisition disposition or disposition of any businessacquisition, a material amount of stock directly or assets of any other Person or any real property indirectly (whether by merger, sale of stock, sale of assets assets, or otherwise);
, by the Company or any of its Subsidiaries of assets or capital stock or other equity interests of any Person (vA) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, with a fair market research, marketing consulting value or aggregate consideration under such Contract in excess of $1,000,000 and advertising Contracts (B) pursuant to which any member of the Company Group is or any of its Subsidiaries has a partycontinuing material earn-out or other contingent payment obligation or any material indemnification obligation;
(vi) all employment agreements and Contracts with independent contractors or consultants (any Contract that grants any right of first refusal, right of first offer, or similar arrangements) right with respect to which any member material assets, rights, or properties of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeany of its Subsidiaries;
(vii) except for Contracts relating to trade receivables, any Contract that contains any provision that requires the purchase of all Contracts relating to indebtedness (including, without limitation, guarantees) of any member or a material portion of the Company’s or any of its Subsidiaries’ requirements for a given product or service from a given third party, which product or service is material to the Company Groupand its Subsidiaries, taken as a whole;
(viii) all Contracts any Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any Governmental Authority to which any member third party or upon consummation of the Company Group is Merger will obligate Parent, the Surviving Corporation, or any of their respective Subsidiaries to conduct business on an exclusive or preferential basis or that contains a party (“Government Contracts”)most favored nation” or similar covenant with any third party;
(ix) all Contracts that limit any partnership, joint venture, limited liability company agreement, or purport similar Contract relating to limit the ability formation, creation, operation, management, or control of any member of material joint venture, partnership, or limited liability company, other than any such Contract solely between the Company Group to compete in any line of business and its wholly owned Subsidiaries or with any Person or in any geographic area or during any period of timeamong the Company’s wholly owned Subsidiaries;
(x) any Contracts mortgages, indentures, guarantees, loans, or credit agreements, security agreements, or other Contracts, in each case relating to which any member indebtedness for borrowed money, whether as borrower or lender, other than (A) accounts receivables and payables, (B) loans to Subsidiaries of the Company Group is a party that provide Company, or (C) for any joint venture, partnership or similar arrangement by any member of the Company Groupprincipal amounts less than $250,000;
(xi) all Contracts between any employee collective bargaining agreement or among other Contract with any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other handlabor union;
(xii) all collective bargaining agreements any Company IP Agreement, other than licenses for shrinkwrap, clickwrap, or Contracts with any Union to which any member of other similar commercially available off-the-shelf software that has not been modified or customized by a third party for the Company Group is a party; andor any of its Subsidiaries;
(xiii) any other Contract that is a settlement or similar Contract involving payments by the Company or its Subsidiaries after the Closing or any injunctive or similar equitable obligations that impose material restrictions on the Company or any of its Subsidiaries;
(xiv) any Contract providing for (A) payment by any Person to the Company or any of its Subsidiaries in excess of $150,000 annually on account of products or services rendered by the Company or any of its Subsidiaries or (B) the purchase of products or services by the Company or any of its Subsidiaries from any Person in excess of $150,000 annually, in either case, which is not otherwise described in clauses (i)–(xiii) above; provided, that if any such Contract is a purchase order, such purchase order need not be listed on Section 4.15(a) of the Company Disclosure Letter, but shall be deemed to be a Material Contract for purposes of this Agreement; or
(xv) any Contract which is not otherwise described in clauses (i)-(xiv) above that is material to the Company Group and not previously disclosed pursuant to this Section 3.10or any of its Subsidiaries.
(b) Each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (CRAWFORD UNITED Corp), Merger Agreement (CRAWFORD UNITED Corp)
Material Contracts. (a) Except for Financing Contracts, Non-Recourse Notes and Credit Enhancements, Section 3.10(a) 4.13 of the Seller Disclosure Schedules lists each Letter sets forth, as of the following Contracts date hereof, a true, complete and correct list of any member of every contract, agreement, loan, lease, license, guarantee, understanding or commitment (each such item, a "Contract") to which the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed Company Subsidiary is a party or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
by which it is bound that (i) each Contract involving provides for aggregate consideration in excess future payments by the Company or any Company Subsidiary, or to the Company or any Company Subsidiary, of more than $100,000 50,000 and which, in each case, canhas an unexpired term exceeding one year and may not be cancelled by the member of the Company Group canceled upon 60 days' notice without any liability, penalty or without more than 90 days’ notice;
premium (excluding purchase orders and invoices entered into or incurred in the ordinary course of business); (ii) all Contracts that require any member was entered into by the Company or a Company Subsidiary with a stockholder, officer, director or significant employee of the Company, a Company Group to purchase its total requirements Subsidiary or Seller (other than contracts identified in Section 4.9 of any product or service from a third party or that contain “take or pay” provisions;
the Seller Disclosure Letter); (iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person is a collective bargaining or the assumption of any Tax, environmental or other Liability of any Person;
similar agreement; (iv) all Contracts that relate guarantees or indemnifies or otherwise causes the Company or any Company Subsidiary to be liable or otherwise responsible for the acquisition obligations or disposition of any business, a material amount of stock or assets liabilities of any other Person or provides for a charitable contribution by the Company or any real property (whether by merger, sale of stock, sale of assets or otherwise);
Company Subsidiary; (v) all brokerinvolves an agreement with any bank, distributorfinance company or similar organization for borrowed money or indebtedness of the Company or any Company Subsidiary; (vi) materially restricts the Company or any Company Subsidiary from engaging in any business or activity anywhere in the world; (vii) is an employment agreement, dealerconsulting agreement or similar arrangement with any Person who is an employee or former employee of the Company or any Company Subsidiary (each, manufacturer’s representativea "Company Employee"), franchise, agency, sales promotion, market research, marketing consulting and advertising or any other Person (other than Contracts identified in Section 4.9 of the Seller Disclosure Letter); (viii) is an agreement for the purchase or sale of a portfolio of Financing Contracts or Non-Recourse Notes with an aggregate value in excess of $500,000; (ix) is an agreement pursuant to which any member of Person is entitled or obligated to (A) manage, service, administer, enforce or make collections on any Financing Contract or Non-Recourse Note or (B) repossess or otherwise convert the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) ownership of any member Portfolio Property or to sell or otherwise dispose of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
Portfolio Property; (x) any is an agreement with a collection agency for the collection of past-due payments under Financing Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
Non-Recourse Notes; or (xi) all Contracts between is an agreement or among commitment by investors to purchase any member of the Company Group on the one hand and Seller Non-Recourse Notes or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)Financing Contracts, or has provided interests on participations therein, or received an agreement or commitment to sell any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.Non-Recourse
Appears in 2 contracts
Sources: Stock Purchase Agreement (Fidelity Leasing Inc), Stock Purchase Agreement (Resource America Inc)
Material Contracts. (a) On the date hereof, except for Contracts relating to entities, including without limitation partnership, joint venture, limited liability company, invested by but not Controlled by the Group Companies or as set forth in Section 3.10(a4.12(a) of the Disclosure Schedules lists each Schedule, none of the following Contracts of any member of the Group Company Group (such Contracts, together with all Contracts concerning the occupancy, management is a party to or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):bound by:
(i) each any Contract involving aggregate consideration in excess relating to the formation, creation, operation, management or Control of $100,000 and whicha partnership, in each casejoint venture, cannot be cancelled by the member of the Company Group without penalty limited liability company or without more than 90 days’ noticesimilar arrangement;
(ii) all Contracts that require any member Contract involving a loan (other than accounts receivable from trade debtors in the ordinary course of business) or advance to (other than travel and entertainment allowances to the Company Group to purchase its total requirements employees of any product Group Company extended in the ordinary course of business), or service from a third party or that contain “take or pay” provisionsinvestment in, any Person, of more than RMB15,000,000 in any calendar year on its face;
(iii) all Contracts that provide for the indemnification by any member of the Company Group Contract involving indebtedness or obligation (contingent or otherwise) of any Person or the assumption Group Company of any Tax, environmental or other Liability of any Personmore than RMB15,000,000;
(iv) all Contracts any Contract that relate involves, or contains restrictions with respect to, (A) payment of dividends or other distributions with respect to equity interests of any Group Company, (B) pledging of share capital of any Group Company, or (C) the issuance of a guaranty by any Group Company;
(v) any Contract that contains a put, call or similar right pursuant to which any Group Company could be required to purchase or sell, as applicable, any equity interests of any Person or material assets;
(vi) any non-competition Contract or other Contract that purports to limit, curtail or restrict the ability of any Group Company to compete in any geographic area, industry or line of business or grants exclusive rights to the counterparty thereto;
(vii) any Contract involving copyright, or any other Intellectual Property that is material to any Group Company other than those in the ordinary course of business;
(viii) any Contract that contains provisions on “most favored nations”, or rights of first refusal or similar rights over any of the Ordinary Shares, the Series A Preferred Shares, the Series B Preferred Shares and the Series C Preferred Shares;
(ix) any Contract that involves the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any Equity Securities of any Group Company, or the acquisition or disposition of any business, a material assets or business by any Group Company involving an amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more less than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of timeRMB15,000,000;
(x) any Contracts Contract pursuant to which any member Person obtains Control of the Company any Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company GroupCompany;
(xi) all Contracts between any Contract involving the waiver, compromise, or among settlement of any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;Action over RMB15,000,000; or
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is otherwise material to a Group Company. Each such Contract described above is referred to herein as a “Material Contract”, which shall include, inter alia, all of the Control Documents. Section 4.12(a) of the Disclosure Schedule contains a true, correct and complete list of all Material Contracts, and a copy of each Material Contract has been provided by the Company Group and not previously disclosed pursuant to this Section 3.10the Purchaser.
(bi) Each Material Contract is a legal, valid and binding on the obligation of each Group Company Group member that is a party thereto and, to the best knowledge of any Group Company, the other parties thereto, enforceable against them in accordance with its terms terms, in each case subject, as to enforcement of remedies, to the Bankruptcy and is in full force and effect. None Equity Exception, (ii) none of the Company Group member orCompanies nor, to Seller’s Knowledgethe best knowledge of any Group Company, any other party thereto is in material breach of or default under (or is alleged to be in breach of violation of, or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No Contract and no event or circumstance has occurred or not occurred through any Group Company’s action or inaction or, to the best knowledge of any Group Company, the action or inaction of any third party, that, with or without due notice or lapse of time or both, would constitute an event a material breach or violation of, or default under, any Material Contract, and (iii) the Group Companies have not received any written claim or notice of default default, termination or cancellation under any such Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 2 contracts
Sources: Share Subscription Agreement (9F Inc.), Share Subscription Agreement (9F Inc.)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Except for this Agreement and except for Contracts of any member of filed as exhibits to the Company Group (such Contracts, together with all Contracts concerning the occupancy, management SEC Reports or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements as set forth in Section 3.12(b) 3.15 of the Company Disclosure SchedulesSchedule, being “Material Contracts”):as of the date hereof, none of the Company or its Subsidiaries is a party to nor are any of the Company’s or its Subsidiaries’ properties or assets bound by:
(i) each any Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company pursuant to Item 19 and paragraph 4 of the Company Group without penalty or without more than 90 days’ noticeInstructions to Exhibits of Form 20-F under the Exchange Act;
(ii) all Contracts that require any member Contract relating to the formation, creation, operation, management or control of the Company Group to purchase its total requirements of any product a partnership, joint venture, limited liability company or service from a third party or that contain “take or pay” provisionssimilar arrangement;
(iii) all Contracts that provide for any Contract involving the indemnification payment or receipt of amounts by any member of the Company Group or its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, of any Person or the assumption of any Tax, environmental or other Liability of any Personmore than US$10,000,000;
(iv) all Contracts any non-competition Contract or other Contract that relate purports to limit, curtail or restrict in any material respect the acquisition or disposition ability of any business, a material amount of stock or assets of any other Person the Company or any real property (whether by mergerof its Subsidiaries to compete in any geographic area, sale industry or line of stock, sale of assets or otherwise)business;
(v) all brokerany Contract that contains a put, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts call or similar right pursuant to which any member of the Company Group is 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 partyfair market value or purchase price of more than US$10,000,000;
(vi) all employment agreements and Contracts any Contract that contains restrictions with independent contractors respect to (A) payment of dividends or consultants (or similar arrangements) any distribution with respect to which any member equity interests of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeany of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guaranty by the Company or any of its Subsidiaries;
(vii) except any Company IP Agreements other than agreements for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;Off-the-Shelf Software; and
(viii) all Contracts with any Governmental Authority to which Contract between the Company or any member of its Subsidiaries and any director or executive officer of the Company Group is a party or any Person beneficially owning five percent or more of the outstanding Company Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (all such Contracts described in clauses (i) through (viii) collectively, the “Government Material Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each of the Material Contract is Contracts constitutes the valid and legally binding on obligation of the Company Group member party thereto or its Subsidiaries, enforceable in accordance with its terms and is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto There is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of no default under any Material Contract or result in a termination thereof or would cause or permit so listed either by the acceleration or Company or, to the Company’s knowledge, by any other changes party thereto, and no event has occurred that with the lapse of any right or obligation time or the loss giving of notice or both would constitute a default thereunder by the Company or, to the Company’s knowledge, any benefit thereunder. Complete and correct copies of other party, in each case except as would not individually or in the aggregate, have a Company Material Adverse Effect.
(c) No party to any such Material Contract (including all modifications, amendments and supplements thereto and waivers has given notice to the Company of or made a claim against the Company with respect to any material breach or default thereunder) have been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (E-House (China) Holdings LTD), Merger Agreement (China Real Estate Information Corp)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member of the Company Group (such ContractsExcept for this Agreement, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements as set forth in Section 3.12(b) 3.21 of the Company Disclosure SchedulesSchedule and Company Benefit Plans, being “Material Contracts”):as of the date hereof, neither the Company nor any Company Subsidiary is a party to or bound by any Contract that:
(i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC);
(ii) would, after giving effect to the Merger, materially limit or materially restrict the Surviving Corporation or any Company Subsidiary or any successor thereto, from engaging or competing in any line of business that it currently engages in or is a reasonable extension thereof (including with respect to Parent after the Effective Time) or in any geographic area (including through exclusivity, non-solicitation or “most favored nation” provisions with respect to customers);
(iii) limits or otherwise restricts the ability of the Company or any Company Subsidiary to pay dividends or make distributions to its shareholders;
(iv) (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement or commitment that provides for or relates to any Indebtedness of the Company or any Company Subsidiary, including any sale and leaseback transactions or other similar financing arrangements or (B) provides for the guarantee, support, indemnification, assumption or endorsement by the Company or any Company Subsidiary of, or any similar commitment by the Company or any Company Subsidiary with respect to, the obligations, liabilities or Indebtedness of any other Person of the nature described in clause (A), in the case of each Contract involving aggregate consideration of clauses (A) and (B), in excess the principal amount of $100,000 100,000,000 or more;
(v) is a settlement, consent or similar Contract to resolve litigation and whichthat contains any material continuing obligations of the Company or any Company Subsidiary;
(vi) is a collective bargaining agreement, work rules or other agreement with any Union;
(vii) (A) is a 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 of the Company (other than any such Contract solely among any of the Company and the wholly owned Company Subsidiaries), in each case, cannot be cancelled by the member of that is material to the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require any member of and the Company Group to purchase its total requirements of any product Subsidiaries taken as a whole or service from (B) is a third party shareholder or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of stockholder agreement between the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by mergerCompany Subsidiary, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand hand, and Seller or any Affiliate of Seller (other than any member of the Company Group) Person, on the other hand;
(xiiviii) all collective bargaining agreements grants any right of first refusal, right of first offer, or Contracts right of first negotiation with respect to any Union to which any member assets, rights or properties of the Company Group is a party; and
(xiii) any other Contract or the Company Subsidiaries that is are material to the Company Group and not previously disclosed pursuant the Company Subsidiaries taken as a whole; or
(ix) relates to this Section 3.10any past or pending acquisition or disposition of any Person, business or assets constituting a business and under which the Company or the Company Subsidiaries have any material continuing guarantee, “earnout” or other contingent, deferred or fixed payment obligations.
(b) Each Contract of the type described in this Section 3.21, whether or not set forth on Section 3.21 of the Company Disclosure Schedule and whether or not entered into on or prior to the date hereof, is referred to herein as a “Company Material Contract.” The Company has made available to Parent true, correct and complete copies of each Company Material Contract in effect as of the date hereof (other than any Contracts publicly available and filed as exhibits to the Company SEC Documents prior to the date of this Agreement), excluding any schedules, annexes, exhibits, work orders, statements of work or other ancillary documents with respect to any such Company Material Contracts that are no longer in force or effect or do not contain terms that are, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole.
(c) Each Company Material Contract is a valid and binding on obligation of the Company Group member or the Company Subsidiary party thereto enforceable against the Company or such Company Subsidiary in accordance with its terms (except that such enforcement may be subject to the Bankruptcy and Equity Exceptions) and, to the Company’s Knowledge, each other party thereto, and is in full force and effect. None , and each of the Company Group member orand each of the Company 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 Sellerthe Company’s Knowledge, any each other party thereto is to each Company Material Contract has performed in breach all material respects all obligations required to be performed by it under such Company Material Contract, except, in each case, as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has no Knowledge of, and none of the Company or any Company Subsidiary has received notice of, any violation of or default under (or is alleged to be in breach any condition which with the passage of time or the giving of notice would cause such a violation of or default under), or has provided or received ) any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Company Material Contract to which it is a party or result by which it or any of its properties or assets is bound, except for violations or defaults that would not reasonably be expected to have, individually or in the aggregate, a termination thereof or 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 Company Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (American Water Works Company, Inc.), Merger Agreement (Essential Utilities, Inc.)
Material Contracts. (a) Except for (i) this Agreement, (ii) agreements or Contracts contemplated by this Agreement or the Transactions and (iii) the Contracts specifically identified in Schedule 3.10 of the Company Disclosure Letter (with each of such Contracts specifically identified under subsection(s) of such Schedule 3.10 that correspond to the Subsection or Subsections of this Section 3.10(a) of applicable to such Contract), neither the Disclosure Schedules lists each Company nor any Subsidiary is a party to or bound by any of the following Contracts of any member of the Company Group (such Contractseach, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being a “Material ContractsContract”):
(i) each (A) any management service, partnership or joint venture Contract, (B) any Contract involving aggregate consideration in excess that involves a sharing of $100,000 revenues, profits, cash flows, expenses or losses with other Persons and which, in each case, cannot be cancelled by (C) any Contract that involves the member payment of the Company Group without penalty or without more than 90 days’ noticeroyalties to any other Person;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product Contract with a (A) Significant Customer or service from a third party or that contain “take or pay” provisions(B) Significant Supplier;
(iii) all Contracts that provide any continuing Contract for the indemnification by purchase, sale or license of materials, supplies, equipment, services, software, Intellectual Property or other assets involving, in the case of any member of such Contract, payments to the Company Group or any Subsidiary of more than $150,000 per year, or by the Company or any Person or the assumption Subsidiary of any Tax, environmental or other Liability of any Personmore than $150,000 per year;
(iv) all Contracts any Contract that relate to expires or may be renewed at the acquisition or disposition option of any business, a material amount of stock Person other than the Company or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)its Subsidiaries so as to expire more than one year after the Agreement Date;
(v) all broker, any distributor, dealeroriginal equipment manufacturer, reseller, value added reseller, sales, advertising, agency or manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a partyrepresentative Contract;
(vi) all employment agreements and Contracts with independent contractors or consultants any Contract (or similar arrangementsA) pursuant to which any member other party is granted exclusive rights or “most favored party” rights of any type or scope with respect to any of the Company Group is a party and which are not cancellable without material penalty Products or without more than 90 days’ noticeCompany Intellectual Property, (B) containing any non-competition covenants, exclusivity or other similar restrictions relating to the Company Products or Company-Owned Intellectual Property, or (C) that limits or would limit the freedom of the Company or any of its successors, assigns or Affiliates to (1) engage or participate, or compete with any other Person, in any line of business, market or geographic area with respect to the Company Products or the Company Intellectual Property or (2) sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or services;
(vii) all licenses, sublicenses and other Contracts to which the Company or any Subsidiary is a party and pursuant to which the Company or any Subsidiary acquired or is authorized to use any Third-Party Intellectual Property, except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company GroupStandard Inbound IP Licenses;
(viii) all Contracts any license, sublicense or other Contract to which the Company or a Subsidiary is a party and pursuant to which any Person is authorized to use any Company-Owned Intellectual Property Rights except for Standard Outbound IP Licenses in which the aggregate value of such license is less than $150,000;
(ix) any license, sublicense or other Contract pursuant to which the Company or any Subsidiary has agreed to any restriction on the right of the Company to use or enforce any Company-Owned Intellectual Property Rights (excluding nonexclusive rights or licenses) or pursuant to which the Company or any Subsidiary agrees to encumber (other than Permitted Encumbrances), transfer or sell rights in or with respect to any Company-Owned Intellectual Property;
(x) any Contract providing for the development of any software, technology or Intellectual Property Rights, independently or jointly, either by or for the Company or any Subsidiary (other than employee invention assignment agreements and consulting agreements with Authors on the Company’s standard form of agreement, copies of which have been provided to Parent);
(xi) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into by the Company or any Subsidiary in the ordinary course of business consistent with past practice;
(xii) any agreement of indemnification or warranty or any Contract containing any support, maintenance or service obligation or cost on the part of the Company or any Subsidiary (other than under its unmodified form of standard customer or distributor agreement, the form of which has been provided to Parent);
(xiii) any settlement agreement with respect to any Action;
(xiv) any standstill or similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of the Company or assets of the Company or any Subsidiary or otherwise seeking to influence or exercise control over the Company or any Subsidiary;
(xv) any Contract or plan (including any stock option, merger and/or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or any other securities of the Company or any Subsidiary or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor, except for the repurchase rights (if any) disclosed on Schedule 3.5(a), Schedule 3.5(b)-1 and Schedule 3.5(c) of the Company Disclosure Letter;
(xvi) any Contract with any labor union or any collective bargaining agreement or similar Contract with its Employees;
(xvii) any separation agreement, settlement agreement with any Employee, under which the Company or any Subsidiary has any current actual or potential Liability, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Authority Entity;
(xviii) any employment Contract or offer letter with any Employee, or beneficial owner of more than 5% of the total shares of Company Capital Stock that is not immediately terminable at-will by the Company without notice, severance, or other cost or Liability;
(xix) any Contract providing for retention payments, change of control payments, severance, accelerated vesting or any other payment or benefit that may or will become due as a result of the Merger;
(xx) any trust indenture, mortgage, promissory note, loan agreement or other Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(xxi) any Contract of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the Liabilities or indebtedness of any other Person, including any Contract mortgaging, pledging or otherwise placing an Encumbrance (other than Permitted Encumbrances) on any material portion of the assets of the Company;
(xxii) any Contract for capital expenditures in excess of $50,000 in the aggregate;
(xxiii) any Contract pursuant to which the Company or any member Subsidiary is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other tangible personal property involving expenditures in excess of $50,000 per annum;
(xxiv) any Contract with any investment banker, broker, advisor or similar party retained by the Company, in connection with this Agreement and the Transactions;
(xxv) any Contract pursuant to which the Company or any Subsidiary has acquired a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, exclusive license or otherwise, or any Contract pursuant to which it has any material ownership interest in any other Person;
(xxvi) any Contract with any Governmental Entity, any Company Authorization, or any Contract with a government prime contractor, or higher-tier government subcontractor, including any indefinite delivery/indefinite quantity contract, firm-fixed-price contract, schedule contract, blanket purchase agreement, or task or delivery order (each a “Government Contract”); or
(xxvii) any Contract entered into by the Company or any Subsidiary with any customer or reseller of the Company Group is a party or any Subsidiary that provide for obligations by the Parent or its successors that do not terminate within one year following the Closing (“Government Long Term Customer Contracts”);
(ixb) All Material Contracts are in written form. The Company and each Subsidiary have performed all Contracts that limit or purport to limit the ability of any member of the Company Group material obligations required to compete be performed by it and is entitled to all benefits under, and is not alleged to be in default in respect of, any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member Material Contract. Each of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Material Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect, subject only to the effect, if any, of applicable bankruptcy and other similar Law affecting the rights of creditors generally and rules of Law governing specific performance, injunctive relief and other equitable remedies. None There exists no default or event of default or event, occurrence, condition or act, with respect to the Company or any Subsidiary or to the Knowledge of the Company Group member orCompany, with respect to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)contracting party, or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or the giving of notice, the lapse of time or boththe happening of any other event or condition, would constitute an reasonably be expected to (i) become a default or event of default under any Material Contract or result (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in a termination thereof delivery schedule under any Material Contract, (C) the right to accelerate the maturity or would cause performance of any obligation of the Company under any Material Contract, or permit (D) the acceleration right to cancel, terminate or modify any Material Contract. Neither the Company nor any Subsidiary has received any notice or other changes communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Contract. None of the Company or any right or obligation or Subsidiary has any Liability for renegotiation of Government Contracts. The Company has heretofore made available to Parent in the loss of any benefit thereunder. Complete Data Room (1) correct and correct complete copies of each written Material Contract and (including 2) summaries of each oral Material Contract, together with any and all modifications, material amendments and supplements thereto and waivers thereunder) have been made available to Buyer“side letters” and similar documentation relating thereto.
Appears in 2 contracts
Material Contracts. (a) Section 3.10(aExcept for those agreements and other documents filed as exhibits or incorporated by reference to Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011 or filed or incorporated in any of its other Company SEC Reports filed since March 16, 2012 and prior to the date hereof or as Previously Disclosed, neither Company nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (each, whether or not filed with the SEC, a “Material Contract”): (i) that is a “material contract” within the meaning of Item 601(b)(10) of the Disclosure Schedules lists each SEC’s Regulation S-K; (ii) that contains a non-compete or client or customer non-solicit requirement or any other provisions that restricts the conduct of, or the manner of conducting, any line of business of Company or any of its affiliates (or, upon consummation of the following Contracts Merger, of Purchaser or any member of its affiliates); (iii) that obligates Company or any of its affiliates (or, upon consummation of the Merger, Purchaser or any of its affiliates) to conduct business with any third party on an exclusive or preferential basis; (iv) that requires referrals of business or requires Company Group or any of its affiliates to make available investment opportunities to any person on a priority or exclusive basis; (such Contractsv) that relates to the incurrence of indebtedness by Company or any of its Subsidiaries (other than deposit liabilities, together trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with all Contracts concerning past practice) including any sale and leaseback transactions, capitalized leases and other similar financing transactions; (vi) that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of Company or any of its Subsidiaries; (vii) that limits the occupancypayment of dividends by Company or any of its Subsidiaries; (viii) that relates to a material joint venture, partnership, limited liability company agreement or other similar agreement or arrangement with any third party, or to the formation, creation or operation, management or operation control of any Real material partnership or joint venture with any third parties, except in each case that relate to merchant banking investments by the Company or its Subsidiaries in the ordinary course of business; (ix) that relates to an acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect; (x) that provides for payments to be made by Company or any of its Subsidiaries upon a change in control thereof; (xi) that is a consulting agreement or data processing, software programming or licensing contract involving the payment of more than $200,000 per annum (other than any such contracts which are terminable by Company or any of its Subsidiaries on 60 days or less notice without any required payment or other conditions, other than the condition of notice); (xii) that grants to a person any right in Company Owned Intellectual Property or grants to Company or any of its Subsidiaries a license to Company Licensed Intellectual Property (including without limitation, brokerage contracts) listed excluding licenses to shrink-wrap or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract involving aggregate consideration in excess of $100,000 and whichclick-wrap software), in each case, cannot be cancelled by case that involves the member payment or more than $200,000 per annum or is material to the conduct of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require any member businesses of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
Company; (iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangementsxiii) to which any member affiliate, officer, director, employee or consultant of the Company Group such party or any of its Subsidiaries is a party or beneficiary (except with respect to loans to, or deposit or asset management accounts of, directors, officers and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of employees entered into in the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line ordinary course of business and in accordance with all applicable regulatory requirements with respect to it); or with any Person or in any geographic area or during any period of time;
(xxiv) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is otherwise material to the Company Group or any Significant Subsidiary of the Company or their financial condition or results of operations. Company has Previously Disclosed or made available to Purchaser prior to the date hereof true, correct and not previously disclosed pursuant to this Section 3.10complete copies of each Material Contract.
(bi) Each Material Contract is a valid and legally binding on agreement of Company or one of its Subsidiaries, as applicable, and, to the Company Group member party thereto Knowledge of Company, the counterparty or counterparties thereto, is enforceable in accordance with its terms (subject to the Bankruptcy and Equity Exception) and is in full force and effect. None , (ii) Company and each of its Subsidiaries has duly performed all material obligations required to be performed by it prior to the date hereof under each Material Contract, (iii) neither Company Group member ornor any of its Subsidiaries, and, to Seller’s Knowledgethe Knowledge of Company, any other party thereto counterparty or counterparties, is in breach of or default under (or is alleged to be in breach any provision of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No , and (iv) no event or circumstance has occurred thatcondition exists that constitutes, with after notice or lapse of time or both, would constitute an event will constitute, a breach, violation or default on the part of default Company or any of its Subsidiaries under any such Material Contract or result in a termination thereof or would cause or permit provide any party thereto with the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each to terminate such Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 2 contracts
Sources: Merger Agreement (Hilltop Holdings Inc.), Merger Agreement (Plainscapital Corp)
Material Contracts. (a) Section 3.10(a) 3.13 of the Disclosure Schedules lists each Letter contains a true and complete list of all of the following Contracts of (other than the Excluded Contracts) to which any member of the Company Group (such ContractsCompanies is a party or by which any of them or any of their properties or assets are bound including, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) Contracts to which one of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) Companies is not currently a party but to which one of the Disclosure SchedulesCompanies will be a party following the Reorganization (each such Contract, being a “Material ContractsContract”):
(ia) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require any member of the Company Group evidencing Indebtedness to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(ivb) all Contracts that relate pursuant to which any of the acquisition Companies has directly or disposition of any business, a material amount of stock or assets indirectly guaranteed Indebtedness of any other Person Person;
(c) performance bonds or letters of credit issued or posted by any real property of the Companies, and the contract or instrument under which such bonds or letters of credit were posted;
(whether by mergerd) Contracts containing any non-compete provision that restricts or purports to restrict any of the Companies from engaging or competing in any line of business or in any geographic area or contains any exclusivity, most favored nation or similar covenant;
(e) Contracts between any of the Companies, on the one hand, and any of the Company’s Affiliates (other than any Subsidiary), on the other hand, other than the Contracts that will be terminated or assigned prior to the Closing pursuant to Section 6.10 or Section 6.11;
(f) Contracts for the purchase, sale or use of stockIntellectual Property that is material to conduct the business of any of the Companies, other than Intellectual Property that is publicly available on standard commercial terms;
(g) tolling agreements relating to the generation and sale of assets electricity;
(h) Contracts for the retail supply of electricity, capacity, ancillary services, natural gas or otherwisesteam;
(i) Contracts for the wholesale supply of electric power or power products to local distribution companies or other customers;
(j) Contracts for the transportation or storage of natural gas;
(k) Contracts with transmission owners for the interconnection of the generating facilities owned by any of the Companies or otherwise for the transmission of power (other than Contracts for transmission services provided under a tariff);
(vl) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member for the purchase or construction of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness plant (including, without limitation, guarantees) of any member Contracts relating to the Delta Project), property or equipment, other than Contracts under which the Dollar amount of the Company Grouppurchase is less than $1,000,000;
(viiim) all Contracts with involving a resolution or settlement of any Governmental Authority to which any member actual or threatened litigation, arbitration, claim or other dispute and Contracts involving ongoing environmental remediation involving amounts in excess of the Company Group is a party (“Government Contracts”)$250,000;
(ixn) all Contracts that limit involving a joint venture, partnership, strategic alliance, co-marketing, or purport to limit the ability of similar agreement or providing for a loan or advancement to, or investment in, any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of timePerson;
(xo) a mortgage, pledge, security agreement, deed of trust or other instrument granting a Lien (other than a Permitted Lien) upon any Owned Real Property or Leased Real Property;
(p) other than Contracts to which addressed by clause (l) above, Contracts obligating any member of the Company Group is Companies to spend or purchase material, supplies, equipment or other assets or properties or services (other than purchase orders for inventory or supplies in the ordinary course of business) in excess of $500,000 in any twelve-month period;
(q) Collective Bargaining Agreements;
(r) Contracts for the employment of any officer, individual employee or other Person on a party full-time or consulting basis or any change-in-control or severance payments that may be caused from the transactions contemplated by this Agreement;
(s) Contracts that provide for any joint venture, partnership the acquisition or similar arrangement disposition by any member of the Company GroupCompanies of any Person, assets or business for consideration with a fair market value of more than $250,000 or indemnification or contribution by any of them or any of their Affiliates;
(xit) all Contracts between operating and maintenance agreements, management agreements, administrative services agreements, long term service or among any member parts agreements, and agreements with respect to the intake of water and the Company Group on discharge of wastewater;
(u) the one hand and Seller or any Affiliate of Seller Leases (other than any member such leases, subleases, licenses or occupancy agreements under which none of the Company GroupCompanies is the party thereto using or occupying the premises described therein) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partyand Generating Plant Easements; and
(xiiiv) any other Contract that is material to not addressed by clauses (a)-(u) above under which any of the Company Group Companies has a payment obligation in excess of $250,000. Assuming the due authorization, execution and not previously disclosed pursuant to this Section 3.10.
(b) Each delivery of such Material Contract is by the other parties thereto, each Material Contract constitutes a valid and binding on obligation of, and is enforceable by, the Company Group member party thereto in accordance with or its terms relevant Subsidiary, as the case may be, subject to the Bankruptcy and Equity Exception. To the knowledge of Parent, Holdings and the Company, each Material Contract constitutes a valid and binding obligation of, and is in full force enforceable against, the other parties thereto, subject to the Bankruptcy and effectEquity Exception. None of the Company Group member or, to Seller’s Knowledge, any other party thereto Companies is in material violation or breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No , and no event or circumstance has occurred thatand is continuing that after giving of notice, with notice or the lapse of time or bothboth would become a material violation or breach thereunder or give the other party the right to terminate or accelerate any obligation thereunder; and to the knowledge of Parent, would constitute an event of default under Holdings and the Company, no other party to any Material Contract has materially violated or result in breached any Material Contract, and no event has occurred and is continuing that after giving of notice, the lapse of time or both would become a termination thereof material violation or would cause breach thereunder or permit give any other party the acceleration right to terminate or other changes of accelerate any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.
Appears in 2 contracts
Sources: Purchase Agreement (Calpine Corp), Purchase Agreement (Pepco Holdings Inc)
Material Contracts. (a) Section 3.10(a3.9(a) of the Company Disclosure Schedules lists each sets forth a list of the following Contracts to which a Group Company is, as of any member the date of this Agreement, a party (each Contract required to be set forth on Section 3.9(a) of the Company Group (such ContractsDisclosure Schedules, together with all each of the Contracts concerning entered into after the occupancy, management or operation date of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in this Agreement that would be required to be set forth on Section 3.11(b3.9(a) of the Company Disclosure Schedules if entered into prior to the execution and all Company IP Agreements set forth in Section 3.12(b) delivery of this Agreement, collectively, the Disclosure Schedules, being “Material Contracts”):
(i) each any Contract involving aggregate consideration in excess relating to Indebtedness of $100,000 and whichany Group Company or to the placing of a Lien (other than any Permitted Lien) on any assets or properties of any Group Company, in each case, cannot be cancelled by the member of the Company Group without penalty or without more other than 90 days’ noticeordinary course trade payables;
(ii) all Contracts that require any member Contract under which any Group Company is lessee of the Company Group to purchase its total requirements of or holds, in each case, any product or service from a third party or that contain “take or pay” provisionstangible property (other than real property), owned by any other Person;
(iii) all Contracts that provide for the indemnification any Contract under which any Group Company 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 any member of the Company such Group of any Person or the assumption of any Tax, environmental or other Liability of any PersonCompany;
(iv) all Contracts that relate any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract and (B) any Contract with respect to material Company Licensed Intellectual Property (other than (I) any Contract of the acquisition type described in Section 3.15(c)(i), (II) licenses to Off-the-Shelf Software, (III) licenses to Public Software, and (IV) non-disclosure agreements and licenses granted by employees, individual consultants or disposition individual contractors of any businessGroup Company pursuant to Contracts with employees, a material amount of stock individual consultants or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwiseindividual contractors);
(v) all brokerany Contract that (A) limits or purports to limit, distributorin any material respect, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) freedom of any member of the Group Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit engage or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during that would so limit or purport to limit, in any period material respect, the operations of timeMEOA or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of any Group Company to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer in any material respect or that would so limit or purports to limit, in any material respect, MEOA or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by any Group Company in an amount in excess of (A) $100,000 annually, or (B) $100,000 over the life of the agreement;
(vii) any Contract requiring any Group Company to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a Group Company;
(viii) any Contract under which any Group Company has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.21 of the Company Disclosure Schedules;
(x) any Contracts to Contract with any Person under which any member Group Company grants to any Person any right of the first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any Company Group is a party that provide for Product or any joint venture, partnership or similar arrangement by any member of the Company GroupIntellectual Property Rights;
(xi) all Contracts between any Contract governing the terms of, or among otherwise related to, the employment, engagement or services of any member current director, manager, officer, employee, or Contingent Worker of a Group Company (A) whose annual base salary (or, in the Company Group on the one hand and Seller case of a Contingent Worker, actual or anticipated annual base compensation) is in excess of $100,000, or (B) that provides for severance or any Affiliate of Seller (other than any member of the Company Group) on the other handpost-termination payments or benefits;
(xii) all collective bargaining agreements any Contract governing the terms of, or Contracts with otherwise related to, the employment, engagement or services of any Union former director, manager, officer, employee, or Contingent Worker of a Group Company pursuant to which any member Group Company, as of the Company Group is a party; andClosing, has or will have an obligation to pay severance or other post-termination pay;
(xiii) any Contract providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;
(xiv) any collective bargaining agreements and any other agreements executed with a union or similar organization;
(xv) any Contract for the disposition of any portion of the assets or business of any Group Company or for the acquisition by any Group Company of the assets or business of any other Person (other than acquisitions or dispositions made in the ordinary course of business), or under which any Group Company has any continuing obligation with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation;
(xvi) any Contract for the settlement or conciliation of a prior Proceeding or other dispute with a third party (A) the performance of which would be reasonably likely to involve any payments after the date of this Agreement, (B) with a Governmental Entity, or (C) that imposes or is reasonably likely to impose, at any time in the future, any material, non-monetary obligations on any Group Company (or MEOA or any of its Affiliates after the Closing);
(xvii) any Contract with any (x) Material Customer or (y) Material Supplier;
(xviii) any Contract with any Governmental Entity;
(xix) any Contract granting an exclusive or other material license in and to Company Licensed Intellectual Property, other than licenses for Off-the-Shelf Software;
(xx) any Contract granting an exclusive or other material license in and to any Company-Owned Intellectual Property, other than incidental licenses granted in the ordinary course of business; and
(xxi) any other Contract the performance of which requires either (A) annual payments to or from any Group Company in excess of $100,000 or (B) aggregate payments to or from any Group Company in excess of $100,000 over the life of the agreement and, in each case, that is material to not terminable by the applicable Group Company Group and not previously disclosed pursuant to this Section 3.10without penalty upon less than thirty (30) days’ prior written notice.
(bi) Each Material Contract is valid and binding on the applicable Group Company Group member party thereto in accordance with its terms and, to the Company’s knowledge, the counterparties thereto, and is in full force and effect. None of effect and enforceable in accordance with its terms against the applicable Group Company Group member orand, to Sellerthe Company’s Knowledgeknowledge, any the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other party Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the applicable Group Company and, to the Company’s knowledge, the counterparties thereto is are not in material breach of or default under (or is alleged to be in breach of of, or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No , and (iii) no event or circumstance has occurred that, that (with or without due notice or lapse of time or both) could reasonably be expected to result in a material breach of, would constitute an event of or default under under, any Material Contract or result in by the applicable Group Company or, to the Company’s knowledge, the counterparties thereto.
(c) Section 3.9(c) of the Company Disclosure Schedules sets forth a termination thereof or 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 list of each of the Material Contract (including all modificationsSuppliers and the Material Customers. Since July 31, amendments 2021, no such Material Supplier or Material Customer has canceled, terminated or materially and supplements thereto and waivers thereunder) adversely altered its relationship with the Company, or to the Company’s knowledge, threatened in writing to cancel or terminate its relationship with the Company. There have been made available to Buyerno material disputes between the Company and any Material Supplier or Material Customer since the date of the Latest Balance Sheet.
Appears in 2 contracts
Sources: Business Combination Agreement (Digerati Technologies, Inc.), Business Combination Agreement (Minority Equality Opportunities Acquisition Inc.)
Material Contracts. (a) Subsections (i) through (xv) of Section 3.10(a2.19(a) of the Company Disclosure Schedules lists Schedule each contain a complete and accurate listing as of the date hereof of the following Contracts of to which the Company or any member Subsidiary of the Company Group (such Contractsis a party, together with all Contracts concerning the occupancyamendments, management waivers or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):other changes thereto:
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled which is reasonably likely to involve (A) annual payments by or to the member Company or any Subsidiary of the Company Group without penalty or without of more than 90 days’ notice$750,000 or (B) aggregate payments by the Company or any Subsidiary of the Company of more than $1,500,000 (or in the case of operational Contracts entered into in the ordinary course of business, $3,000,000);
(ii) all (A) collective bargaining agreements, (B) employment and consulting agreements, independent contractor agreements, severance agreements or change in control agreements and Contracts that require with any member current director, officer, employee or consultant of the Company Group to purchase its total requirements or any Subsidiary of the Company with an annual salary in excess of $150,000, other than those that are terminable at will by the Company or any product Subsidiary of the Company on no more than thirty (30) days notice without liability or service from a third party financial obligation and (C) any Contract with any Related Party other than the grant of Company Options or that contain “take or pay” provisionsCompany Restricted Stock;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts or marketing Contracts, other than advertising agreements entered into in the ordinary course of business;
(iv) all contracts and agreements relating to which any member Indebtedness or any Liens upon any properties or assets of the Company Group is a partyor any Subsidiary of the Company as security for such Indebtedness;
(v) all Government Contracts;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to (A) limit the ability of the Company and/or any member Subsidiary or affiliate of, or successor to, the Company, or, to the Knowledge of the Company Group Company, any executive officer of the Company, to compete in any line of business or with any Person or in any geographic area or during any period of timetime or to develop, market, sell, distribute or otherwise exploit Company Services or Products, (B) grant exclusive rights of any type or scope or rights of first refusal, rights of first negotiation or similar rights or terms to any Person, (C) require the Company and/or any Subsidiary or affiliate of, or successor to, the Company to use any supplier or third party for all or substantially all of any of its material requirements or need in any respect, (D) limit or purport to limit the ability of the Company and/or any Subsidiary or affiliate of, or successor to, the Company to solicit any customers or clients of the other parties thereto, (E) require the Company and/or any Subsidiary or affiliate of, or successor to, the Company to provide to the other parties thereto “most favored nations” pricing, or (F) require the Company and/or any Subsidiary or affiliate of, or successor to, the Company to market or co-market any products or services of a third party;
(vii) all limited liability company agreements, operating agreements, partnership agreements, contribution agreements or similar Contracts (including letters of intent) relating to the formation, organization, governance, operation, management or control of any such strategic alliance, joint development, joint marketing, joint venture, limited liability company or partnership, including the Hospital Joint Ventures;
(viii) all management, services, option or other Contracts with any Managed Practice or any affiliate thereof or any physician, nurse practitioner or other healthcare professional having an ownership interest in or under contract with, the Company, any Subsidiary thereof or any Managed Practice, including non-competition agreements;
(ix) all provider agreements or similar Contracts with a third party or government payor under which the Company, any of its Subsidiaries or any Hospital Joint Venture is entitled to or seek payment from any private or governmental third party payor, insurer or similar health benefit plan arrangement;
(x) any Contracts all material powers of attorney and proxies entered into by or granted to which any member of the Company Group is a party that provide for or any joint ventureof its Subsidiaries, partnership whether limited or similar arrangement by any member of the Company Groupgeneral, revocable or irrevocable;
(xi) all Contracts between or among any member of entered into by the Company Group on the one hand and Seller or any Affiliate of Seller (its Subsidiaries and any other than any member of Person providing for the acquisition by the Company Groupor such Subsidiary (including by merger, consolidation, acquisition of stock or assets or any other business combination) on of any Person or division or unit thereof or any material amount of assets of such other Person, and information identifying the maximum amounts, if any, that are still payable or potentially payable to any other handPerson under such Contracts pursuant to any post-closing adjustment to the purchase price (including under any “earnout” or other similar provision);
(xii) all collective bargaining confidentiality, non-disclosure and/or standstill agreements or Contracts with any Union to which any member of entered into by the Company Group is a party; andor any of its Subsidiaries (other than in the ordinary course of business, which ordinary course of business agreements includes such agreements with potential and current vendors and customers) except those which have expired by their terms;
(xiii) any agreement of guarantee, support, indemnification (specifically identifying those Contracts involving Intellectual Property Rights that include indemnification provisions), assumption or endorsement, or any similar Contract with respect to the obligations or liabilities (whether accrued, absolute, contingent or otherwise) of any other Contract that is Person; and
(xiv) all other Contracts entered into by the Company or any Subsidiary of the Company other than in the ordinary course of business, which are material to the Company Group and not previously disclosed pursuant its Subsidiaries, the conduct of the business thereof, or the termination or cancellation of which would have or could reasonably be expected to have a Company Material Adverse Effect. The Contracts required to be listed in subsections (i) through (xiv) of Section 2.19(a) of the Company Disclosure Schedule, together with the Contracts set forth in Sections 2.12(l) and 2.12(m) of the Company Disclosure Schedule, the Lease Agreements and any Material Contracts entered into after the date of this Agreement in accordance with Section 3.104.2 are referred to herein as “Material Contracts”.
(b) Each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effectCustomers. None Section 2.19(b) of the Company Group member orDisclosure Schedule sets forth the Company revenues derived from each Managed Practice for each of (i) the years ended December 31, 2007, 2008 and 2009 and (ii) the nine months ended September 30, 2010. Except as set forth in Section 2.19(b) of the Company Disclosure Schedule, none of such Managed Practices has indicated in writing or orally to Seller’s Knowledgethe Company, any other party thereto is of its Subsidiaries or any Hospital Joint Venture any intent to discontinue or alter in breach a manner adverse to the Company, any of its Subsidiaries or default under any Hospital Joint Venture the terms of such Managed Practice’s relationship with the Company, any of its Subsidiaries or any Hospital Joint Venture or make any claim that the Company, any of its Subsidiaries or any Hospital Joint Venture has breached its obligations to such Managed Practice (or is alleged to be in breach of or default under), or and the Company has provided or received any notice no Knowledge of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyersuch breach).
Appears in 2 contracts
Sources: Merger Agreement (McKesson Corp), Merger Agreement (US Oncology Holdings, Inc.)
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements Except as set forth in Section 3.12(b2.16(a) of the Seller Disclosure Schedules, being “Material Contracts”):Schedule (which shall reference the applicable clause of this subsection (a)) neither the Company nor any Company Subsidiary is a party to or bound by any:
(i) each Contract involving for capital expenditures or the acquisition or construction of fixed assets which requires aggregate consideration future payments in excess of $100,000 and which, 750,000 other than Contracts for which the payments to be made thereunder are currently accounted for in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ noticeSeller’s capital budget;
(ii) all Contracts that require any member Contract prohibiting or restricting the ability of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by mergerCompany Subsidiary to conduct the Business, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or to engage in any business or operate in any geographical area, in each case other than usual and customary restrictions contained in Leases;
(iii) Contract containing any provision requiring the Company or any Company Subsidiary to purchase a minimum amount of product or allocate a minimum amount of shelf space to certain products;
(iv) Contract (or group of Contracts relating to the same site) requiring aggregate future payments or expenditures in excess of $750,000 and relating to cleanup, abatement, remediation or similar actions in connection with environmental Liabilities;
(v) royalty Contract or other Contract with respect to Intellectual Property (as defined in Section 2.21(c) below) which, pursuant to the terms thereof, requires future payments by the Company or a Company Subsidiary in excess of $750,000 per annum;
(vi) Contract pursuant to which the Company or any Company Subsidiary has entered into a joint venture or similar arrangement with any other Person (other than the Company or another Company Subsidiary);
(vii) indenture, mortgage, loan or credit Contract under which the Company or a Company Subsidiary has outstanding indebtedness or any outstanding note, bond, indenture or other evidence of indebtedness for borrowed money, or guaranteed indebtedness for money borrowed by others, in an amount greater than $250,000 individually or $1,000,000 in the aggregate;
(viii) Contract (including any geographic area so-called take or during pay or keep well agreements) under which the Company or any period Company Subsidiary has directly or indirectly guaranteed or otherwise agreed to be responsible for indebtedness, Liabilities or obligations of timeanother Person (other than the Company or another Company Subsidiary);
(ix) Contract or commitment providing for an interest rate, currency or commodity swap, derivative, hedge, forward purchase or sale or other transaction similar in nature or effect to any off-balance sheet financing;
(x) any Contracts to Contract under which any member of the Company Group or a Company Subsidiary is (A) a party that provide for lessee of, or holds or uses, any joint venturemachinery, partnership equipment, vehicle or similar arrangement other tangible personal property owned by a third Person, or (B) a lessor of any member of tangible personal property owned by the Company Groupor the applicable Company Subsidiary, in any case which requires annual payments in excess of $750,000;
(xi) all Contracts between Contract for pending acquisitions of capital stock or among any member assets of the Company Group on the one hand and Seller another Person (whether by merger or any Affiliate of Seller (other than any member of the Company Group) on the other handstock or asset purchase);
(xii) all collective bargaining agreements Contract relating to any pending purchase or Contracts with any Union to which any member of sale by the Company Group is a partyor any Company Subsidiary of any customer prescription files; and
(xiii) any Contract (other Contract than Contracts of the type described in subclauses (i) through (xiv) above) that is material involves aggregate future payments by or to the Company Group and not previously disclosed pursuant or a Company Subsidiary in excess of $750,000 per annum, other than a purchase or sales order or other Contract entered into in the ordinary course of business consistent with past practice. Each such Contract described in clauses (i) through (xiii) is referred to this Section 3.10herein as a “Material Contract”.
(b) Each Copies of all Material Contract is valid Contracts have been previously delivered to or made available for inspection by Purchaser, and binding on such copies are complete and correct in all material respects. Except as set forth in Section 2.16(b) of the Company Group member party thereto in accordance with its terms and Seller Disclosure Schedule, (i) each of the Material Contracts is in full force and effect. None effect and is a valid and binding obligation of the Company Group member oror Company Subsidiary, as applicable, and enforceable against the Company or such Company Subsidiary, and, to Seller’s Knowledgeknowledge, any a valid and binding obligation enforceable against each other party thereto thereto; (ii) the Company or Company Subsidiary, as applicable, has duly performed all of its obligations required to be performed by it to date under each of the Material Contracts and is not (with or without the lapse of time or the giving of notice, or both) in breach of or default under thereunder; (or is alleged iii) to Seller’s knowledge, each of the other parties to such Material Contract has performed all obligations required to be performed by it to date under such Material Contract and is not (with or without the lapse of time or the giving of notice, or both) in breach of or default under), or thereunder; (iv) neither the Company nor any Company Subsidiary has provided or received any written notice of any intention to terminate, not renew or challenge the validity or enforceability of any Material Contract. No event or circumstance has occurred that; and (v) none of the Material Contracts requires the consent of any other party thereto in connection with the consummation of the transactions contemplated by this Agreement, with notice or lapse of time or bothin each case, except as would constitute an event of default under not reasonably be expected to have a Company Material Adverse Effect.
(c) As used in this Agreement, the term “Contract” means any Material Contract or result in a termination thereof or would cause or permit the acceleration contract, agreement, lease, license, purchase order, indenture, note, bond, loan, instrument, commitment or other changes arrangement that is binding on any Person or any part of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyerits property under applicable Law.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Jean Coutu Group (PJC) Inc.), Stock Purchase Agreement (Rite Aid Corp)
Material Contracts. (a) Section 3.10(aSchedules 2.15 (a)(i) through (xx) of the Company Disclosure Schedules lists Letter set forth a list of each of the following Contracts of any member of to which the Company Group or any Subsidiary is a party that are in effect on the Agreement Date (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each any Company Contract involving aggregate consideration with a (A) Significant Customer or (B) Significant Supplier;
(ii) any Contract under which the Company or any of the Subsidiaries committed to make future payments in excess of $100,000 1,000,000 over the life of the Contract, other than employment-related Contracts and whichContracts with lawyers, accountants, financial advisors and other similar professional service providers;
(iii) any Company Contract with respect to a dealer, distributor, referral or similar agreement, or any Company Contract providing for the grant by the Company of rights to market or sell Company Products on behalf of the Company to any other Person (collectively, the “Reseller Agreements”);
(iv) other than the Reseller Agreements, (A) any joint venture Contract or (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons and (C) any Contract that involves the payment of royalties to any other Person, in each case, cannot be cancelled pursuant to which amounts have been received or delivered by the member of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material Subsidiary in an aggregate amount of stock or assets of any other Person or any real property $100,000 during the twelve (whether by merger, sale of stock, sale of assets or otherwise)12) months preceding the Fiscal Year End Date;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to any separation agreement or severance agreement with any current or former employees under which any member of the Company Group is a partyor any Subsidiary had any actual, current Liability in an aggregate amount of $100,000 in cash or more during the twelve (12) months preceding the Agreement Date;
(vi) all any Contract for or relating to the employment agreements and Contracts with independent contractors or consultants (service of any director or similar arrangements) to which any member officer or beneficial owner of more than 5% of the total shares of Company Group is a party and which are not cancellable without material penalty Capital Stock or without any other type of Contract with any of its officers or beneficial owners of more than 90 days’ notice5% of the total shares of Company Capital Stock, as the case may be;
(vii) except for Contracts relating any material Contract pursuant to trade receivables, all Contracts relating which the Company or any Subsidiary has agreed to indebtedness (including, without limitation, guarantees) grant a license of any member of Company-Owned Intellectual Property or express covenant not to ▇▇▇ under any patents (other than non-exclusive licenses granted in the Company Groupordinary course);
(viii) all Contracts with any Governmental Authority Contract made available to Acquirer (A) pursuant to which any member other party is granted exclusive rights, “most favored nations” pricing or “most favored customer” status or similar with respect to any of the Company Group is a party Products, (“Government Contracts”)B) containing any covenants by the Company not to compete with any other Person, in any line of business, market or geographic area with respect to the Company Products, or (C) that contain any rights of first refusal, negotiation or other similar material business restriction on the Company’s rights to sell, distribute or manufacture any Company Products;
(ix) all any Contracts (other than “shrink wrap” and similar generally available commercial end-user licenses to software that limit have an individual acquisition cost of $100,000 or purport less per annum) pursuant to limit which the ability of Company or any member Subsidiary is a party and pursuant to which the Company or any Subsidiary licenses any Third-Party Intellectual Property used in the development or licensing of the Company Group Products, in each case, that is material to compete in any line the business of business or with any Person or in any geographic area or during any period of timethe Company and its Subsidiaries, taken as a whole;
(x) any Contracts to which material outsourced development or joint development Contract providing for the development of any member material items of Company-Owned Intellectual Property on behalf of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company GroupCompany;
(xi) all any Contracts between relating to the membership of, or among participation by, the Company or any member Subsidiary in, or the affiliation of the Company Group on the one hand and Seller or any Affiliate of Seller (other than Subsidiary with, any member of industry standards group or association which obligates the Company Group) on the other handor any Subsidiary to license or contribute any material Company-Owned Intellectual Property;
(xii) all collective bargaining agreements any Contract containing any indemnification, warranty, support, maintenance or Contracts with any Union to which any member service that represents a material obligation or material Liability on the part of the Company Group is a party; andor any Subsidiary other than any such Contract entered into by the Company or any Subsidiary in the ordinary course of business consistent with past practice;
(xiii) any settlement agreement with respect to any Legal Proceeding with an aggregate value in excess of $100,000;
(xiv) any Contract with any labor union or any collective bargaining agreement or similar contract with its employees;
(xv) any trust indenture, mortgage, promissory note, loan agreement or other Contract that is material for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(xvi) other than for any intercompany loans and capital contributions and accounts payable to trade creditors and accrued expenses in the ordinary course, any Contract of guarantee, surety, support, assumption or endorsement of, or any similar commitment with respect to, the Liabilities or indebtedness of any other Person, in each case, with an aggregate value in excess of $100,000;
(xvii) any Contract for capital expenditures in excess of $1,000,000 in the aggregate entered into during the twelve (12) months preceding the Fiscal Year End Date;
(xviii) any Contract pursuant to which the Company Group and not previously disclosed or any Subsidiary is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving expenditures in excess of $500,000 per annum;
(xix) any Contract pursuant to this Section 3.10which the Company or any Subsidiary has acquired a material business or entity, or assets constituting a line of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any Contract pursuant to which it has any material ownership interest in any other Person (other than the Subsidiaries); and
(xx) any Contract with any U.S. Federal Governmental Entity.
(b) Each All Material Contract is valid and binding on Contracts are in written form. To the Company Group member party thereto in accordance with its terms and knowledge of the Company, each of the Material Contracts is in full force and effect. None , subject only to the effect, if any, of the Enforceability Exceptions. To the knowledge of the Company, as of the Agreement Date, there exists no default or event of default or event, occurrence, condition or act, with respect to the Company Group member or, or any Subsidiary or with respect to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)contracting party, or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or the giving of notice, the lapse of time or boththe happening of any other event or condition, would constitute an reasonably be expected to (i) become a material default or material event of default under any Material Contract or result (ii) give any third party (A) the right to declare a material default or exercise any material remedy under any Material Contract, (B) the right to a material rebate, chargeback, refund, credit, penalty or change in a termination thereof delivery schedule under any Material Contract, (C) the right to accelerate the maturity or would cause or permit the acceleration or other changes performance of any material obligation of the Company under any Material Contract, or (D) the right to cancel, terminate or obligation modify any Material Contract. As of the Agreement Date, neither the Company nor any Subsidiary has received any written notice or, to the Company’s knowledge other communication, regarding any actual, material violation or the loss of breach of, default under, or intention to cancel or modify any benefit thereunderMaterial Contract. Complete True, correct and correct complete copies of each all Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) Contracts have been made available to BuyerAcquirer.
Appears in 2 contracts
Material Contracts. (a) Except for this Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xx) of Section 3.10(a3.16(a) of the Company Disclosure Schedules lists each Schedule, as of the following Contracts of any member date hereof, none of the Company Group (such or any of its Subsidiaries is a party to or bound by the following Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”)::
(i) each any Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company pursuant to Item 4 of the Company Group without penalty or without more than 90 days’ noticeInstructions to Exhibits of Form 20-F under the Exchange Act;
(ii) all Contracts that require any member Contract relating to the formation, creation, operation, management or control of any Subsidiary of the Company Group to purchase its total requirements of or any product other partnership, joint venture, strategic collaboration, global affiliation or service from a third party business cooperation, limited liability company or that contain “take or pay” provisionssimilar arrangement;
(iii) all Contracts that provide for any Contract involving a loan (other than accounts receivable from trade debtors in the indemnification by any member ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company Group and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person or any Contract relating to the making of any Person such loan, advance or the assumption of any Tax, environmental or other Liability of any Personinvestment for more than US$5,000,000;
(iv) all Contracts that relate to any Contract involving Indebtedness of the acquisition or disposition of any business, a material amount of stock or assets of any other Person Company or any real property (whether by merger, sale of stock, sale its Subsidiaries of assets or otherwise)more than US$5,000,000;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to any Contract (including so called take-or-pay or keep-well agreements) under which any member person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company Group is a partyor any of its Subsidiaries of more than US$5,000,000;
(vi) all employment agreements and Contracts with independent contractors any Contract granting or consultants (evidencing a Lien on any properties or similar arrangements) to which any member assets of the Company Group is a party and which are not cancellable without material penalty or without any of its Subsidiaries with value of more than 90 days’ noticeUS$5,000,000, other than a Permitted Encumbrances;
(vii) except for Contracts relating to trade receivablesany management service, consulting, financial advisory or any other similar type Contract and all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Groupwith investment or commercial banks;
(viii) all Contracts any Contract for the acquisition, disposition, sale, transfer or lease (including leases in connection with any Governmental Authority to which any member financing transactions) of properties or assets of the Company Group is or any of its Subsidiaries that have a party fair market value or purchase price of more than US$5,000,000 (“Government Contracts”)by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as to which claims are pending;
(ix) all any Contracts that limit involving any resolution or purport to limit the ability settlement of any member of the Company Group to compete actual or threatened litigation, arbitration, claim or other dispute with amount in any line of business or with any Person or in any geographic area or during any period of timecontroversy greater than US$5,000,000;
(x) any Contracts to which any member of the Company Group is Contract involving a party that provide for any joint venture, partnership standstill or similar arrangement by any member of the Company Grouparrangement;
(xi) all Contracts between any non-competition Contract or among other Contract that purports to limit, curtail or restrict in any member material respect the ability of the Company Group on the one hand and Seller or any Affiliate of Seller (other than its Subsidiaries to compete in any member geographic area, industry or line of the Company Group) on the other handbusiness;
(xii) all collective bargaining agreements or Contracts with any Union to which Contract for the employment of any member of the Company Group is a party; andsenior executive officer;
(xiii) any other Contract that is material contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than US$5,000,000;
(xiv) any Contract (other than Contracts granting Company Options, or Company RSs) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Transactions, including the Merger, where (A) such Contract requires any payment in excess of US$5,000,000 to be made by the Company or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) 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, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the Company or any of its Subsidiaries;
(xvi) any Contract providing for (A) a license, covenant not to s▇▇ or other right granted by any Third Party under any Intellectual Property to the Company or any of its Subsidiaries, (B) a license, covenant not to s▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (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 of clauses (A) through (D), other than agreements for off-the-shelf Software and such Contracts that are not material to business of the Group Companies, taken as a whole, and not previously in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the ordinary course of business;
(xvii) any Contract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments of more than US$5,000,000 in any one year;
(xix) each Control Agreement and any other any Contract which (A) provides 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) provides the Company or any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (C) transfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Company;
(xx) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to this Section 3.10Item 7B or Item 19 of Form 20-F under the Exchange Act (including those that would be required to be disclosed if the Form 20-F were filed as of the date hereof); or
(xxi) any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract described in clauses (i) to (xxi) and each such Contract that would be a Material Contract if it had not been filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract.”
(b) Each Except as would not have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Material Contract is a legal, valid and binding on the obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company Group member party thereto 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. None effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company and, to the knowledge of the Company Group member orCompany, to Seller’s Knowledgeno counterparty, any other party thereto is in breach of or default under (or is alleged to be in breach of or violation of, or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event ; (iv) to the knowledge of the Company, no person intends to terminate any Material Contract; and (v) neither the execution of this Agreement nor the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or circumstance has occurred that, with notice or lapse otherwise adversely affect any of time or both, would constitute an event the rights of default any Group Company under any Material Contract Contract. The Company has furnished or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerParent true and complete copies of all Material Contracts, including any amendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Zhang Ray Ruiping), Agreement and Plan of Merger (eHi Car Services LTD)
Material Contracts. (a) Section 3.10(a) As of the Disclosure Schedules lists each of the following Contracts of any member of the Company Group (such Contractsdate hereof, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a there are no 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);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group its Subsidiaries is a party (“Government other than Reinsurance Contracts”);
, Real Property Leases and Benefit Plans) (ixi) all Contracts that limit are required to be described in, or purport to limit filed as an exhibit to, any Company SEC Reports that are not so described or filed as required by the Securities Act or the Exchange Act, (ii) that contain any provisions restricting the ability of the Company or any member of its Subsidiaries, or which, following the consummation of the Merger, would restrict the ability of Parent or any of its controlled Affiliates, including the Surviving Company Group and its Subsidiaries, to compete or transact in any line of business or with any Person or in any geographic area or during grants a right of exclusivity to any period of time;
Person, (xiii) any Contracts pursuant to which any member indebtedness of the Company Group or any of its Subsidiaries is outstanding or may be incurred or pursuant to which the Company or any of its Subsidiaries guarantees any indebtedness of any other Person (other than the Company or any of its Subsidiaries) (except for trade payables arising in the ordinary course of business), (iv) with respect to a party that provide for partnership, joint venture or other similar arrangement with any other Person (other than the Company or any of its Subsidiaries), relate 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 by or to the Company and/or its Subsidiaries in excess of $2,000,000 in any twelve-month period, partnership other than Contracts that can be terminated by the Company or similar arrangement any of its Subsidiaries on less than 90 days’ notice without payment by the Company or any member Subsidiary of the Company Group;
of any material penalty; (xivi) all Contracts between that have been entered into since January 1, 2012 or among any member otherwise provide for material ongoing obligations of the Company Group on the one hand and Seller or any Affiliate of Seller 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, supplies, products, office equipment, furnishings, fixtures, properties or other tangible assets in the ordinary course of business, or of supplies, products, office equipment, furnishings, fixtures, properties or other tangible assets that are obsolete, warn out, surplus or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries), (vii) pursuant to which (A) the Company or any of its Subsidiaries is granted or obtains any right to use any material Intellectual Property owned by any third party (other than standard form contracts granting rights to use commercially available software) or (B) any member third party is granted or obtains the right to use or register any material Intellectual Property owned by the Company or any of its Subsidiaries, including, in each case, any license agreements, coexistence agreements, or covenants not to ▇▇▇, (viii) that prohibits or restricts the payment of dividends or distributions in respect of the shares or capital stock of the Company Group) on or any of its Subsidiaries, prohibits the other hand;
(xii) all collective bargaining agreements pledging of the shares or Contracts with any Union to which any member capital stock of the Company Group or any Subsidiary of the Company or prohibits or restricts the issuance of any guarantee by the Company or any Subsidiary of the Company, or (ix) that is a party; and
(xiii) any other Contract that is material with an investment manager or Investment advisor providing services to the Company Group and not previously disclosed pursuant or any of its Subsidiaries or otherwise relating to this Section 3.10the management of the Investment Assets (each such Contract described in clauses (i)-(ix), other than any Reinsurance Contract, Real Property Lease or Benefit Plan, a “Material Contract”).
(bi) Each Material Contract is a legal, valid and binding on agreement of the Company Group member and its Subsidiaries to the extent such Person is a party thereto, as applicable, and to the Knowledge of the Company, each other party thereto is in accordance compliance in all material respects with its terms and is in full force and effect. None , 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 Company Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, each other party thereto, has performed all obligations required to be performed by it under such Material Contract, except where such noncompliance would not, individually or in the aggregate, reasonably be expected to have a Company Group member Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition which constitutes, or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with after notice or lapse of time or both, would constitute an event will constitute, a default on the part of default the Company or any of its Subsidiaries under any Material Contract Contract, except where such default would not, individually or result in the aggregate, reasonably be expected to have a termination thereof Company Material Adverse Effect and (iv) there are no events or would cause conditions which constitute, or, after notice or permit lapse of time or both, will constitute a default on the acceleration or other changes part of any right counterparty under such Material Contract, except as would not, individually or obligation or in the loss of any benefit thereunder. Complete and correct copies of each aggregate, reasonably be expected to have a Company Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Renaissancere Holdings LTD), Merger Agreement (Platinum Underwriters Holdings LTD)
Material Contracts. (a) Section 3.10(a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports, as of the Disclosure Schedules lists each of the following Contracts of any member date hereof, none of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed its Subsidiaries is a party to or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):bound by:
(i) each any Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company pursuant to Item 4 of the Company Group without penalty or without more than 90 days’ noticeInstructions to Exhibits of Form 20-F under the Exchange Act;
(ii) all Contracts that require any member Contract relating to the formation, creation, operation, management or control of the Company Group to purchase its total requirements of any product a partnership, joint venture, limited liability company or service from a third party or that contain “take or pay” provisionssimilar arrangement;
(iii) all Contracts that provide for any Contract involving a loan (other than accounts receivable from trade debtors in the indemnification by any member ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company Group and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person or any Contract relating to the making of any Person such loan, advance or the assumption investment of any Tax, environmental or other Liability of any Personmore than $10,000,000;
(iv) all Contracts that relate to any Contract involving Indebtedness of the acquisition Company or disposition any of its Subsidiaries of more than $10,000,000;
(v) any business, Contract (including so called take-or-pay or keep-well agreements) under which any person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company or any of its Subsidiaries of more than $30,000,000;
(vi) any Contract granting or evidencing a material amount of stock Lien on any properties or assets of any other Person the Company or any real property of its Subsidiaries with value of more than $30,000,000, other than a Permitted Encumbrances;
(whether vii) any Contract under which the Company or any of its Subsidiaries has any obligations that have not been satisfied or performed (other than indemnification and confidentiality obligations) relating to 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 $30,000,000 (by merger, sale of stock, purchase or sale of assets or stock or otherwise);
(vviii) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising any Contracts to which involving any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors resolution or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) settlement of any member of the Company Group;
(viii) all Contracts Action with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”)amount in controversy greater than $30,000,000;
(ix) all Contracts any non-competition Contract or other Contract that limit purports to limit, curtail or purport to limit restrict in any material respect the ability of any member of the Company Group or any of its Subsidiaries to compete in any geographic area, industry or line of business or with any Person or in any geographic area or during any period of timebusiness;
(x) any Contracts to which any member of the Company Group is Contract involving a party that provide for any joint venture, partnership standstill or similar arrangement by any member of the Company Grouparrangement;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller Contract (other than any member Contracts granting Company Options or Company RSs) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment in excess of $30,000,000 to be made by the Company Groupor any of its Subsidiaries in any calendar year or (B) on the other handvalue of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of $30,000,000 in any calendar year;
(xii) all collective bargaining agreements any Contract that contains restrictions with respect to (A) payment of dividends or Contracts any distribution with any Union respect to which any member equity interests of the Company Group is a party; andor any of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guaranty by the Company or any of its Subsidiaries;
(xiii) any other Contract that is material providing for (A) a license of Intellectual Property to the Company Group and its Subsidiaries, (B) a license of Intellectual Property by the Company or any of its Subsidiaries to third parties, (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 of (A) through (D), other than agreements for off-the-shelf Software and such Contracts that are not previously material to business of the Company and its Subsidiaries, taken as a whole, and in each case of (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in ordinary course of business;
(xiv) any Contract which (A) provides 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) provides the Company or any Subsidiary the right or option to purchase the equity interests in any Operating Subsidiary, or (C) transfers economic benefits from any Operating Subsidiary to any other Subsidiary (the contracts and agreements described in (A), (B) and (C), together, the “Control Agreements”); or
(xv) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to this Section 3.10Item 7B or Item 19 of Form 20-F under the Exchange Act. Each such Contract described in clauses (i) to (xv) and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract.”
(b) Each Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect. None obligation of the Company Group member oror its Subsidiaries party thereto and to the Company’s knowledge, the other parties thereto, in each case subject to the Bankruptcy and Equity Exception, (ii) neither the Company nor any of its Subsidiaries nor, to Sellerthe Company’s Knowledgeknowledge and as of the date hereof, any other party thereto thereto, is in breach of or default under (or is alleged to be in breach of violation of, or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No Contract and no event or circumstance has occurred thator not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s knowledge, the action or inaction of any Third Party, that with notice or lapse of time or both, both would constitute an event of a breach or violation of, or default under under, any Material Contract and (iii) the Company and its Subsidiaries have not received any written claim or result in a notice of default, termination thereof or would cause or permit the acceleration or other changes of cancellation under any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each such Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 2 contracts
Sources: Merger Agreement (Baring Asia Private Equity Fund v Co-Investment L.P.), Merger Agreement (Shi Yuzhu)
Material Contracts. (a) Section 3.10(a3.14(a) of the Disclosure Schedules lists each sets forth a list of all of the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):Entities that:
(i) each Contract involving involve individual or aggregate consideration payments to or by any Company Entity in excess of $100,000 in either of the past two (2) full fiscal years or $75,000 in the current fiscal year;
(ii) involve remaining aggregate payments to or by any Company Entity in excess of $100,000 and which, in each case, have a remaining term of more than one (1) year from the date hereof (and cannot be cancelled terminated by the member of the such Company Group Entity without penalty or without more than 90 days’ noticematerial penalty);
(iiiii) all Contracts that concern the operation or establishment of a partnership, joint venture or similar arrangement;
(iv) require any member of the Company Group Entity to purchase its total requirements of for any product or service from a third party or that contain “take or pay” provisions;
(iiiv) all Contracts that provide for earn-outs or similar contingent obligations;
(vi) relate to the acquisition, issuance or transfer of any securities of any Company Entity;
(vii) create or guarantee any Indebtedness or impose a Lien (other than a Permitted Lien) on any assets of any Company Entity (other than ordinary course trade payables);
(viii) provide for the indemnification by any member disposition of the Company Group assets (other than in the Ordinary Course of Business) or business of any Person Company Entity or the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate to agreement for the acquisition of the assets or disposition of any business, a material amount of stock or assets business of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
) (v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member other than in the Ordinary Course of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”Business);
(ix) all Contracts include any covenant binding on any Company Entity or any director, manager, officer or employee of such Company Entity in the nature of a non- competition or exclusivity agreement or that limit otherwise limits or purport to limit restricts such Company Entity or Person from competing or otherwise conducting the ability of any member of the Company Group to compete Business in any line of business manner or with any Person or in any geographic area or during any period of timeplace;
(x) are with any Contracts to which current or former employee, officer, manager, director, consultant or independent contractor that are not terminable without penalty or other cost on thirty (30) days’ or less notice, including without limitation any member of the Company Group is a party that provide employment, severance, termination, change in control or similar agreement or any agreement providing for any joint ventureincrease in compensation, partnership vesting, acceleration of payments or other similar arrangement by rights or any member other consideration of the Company Groupany kind;
(xi) all Contracts between provide for bonuses, options, pensions, deferred compensation, profit sharing, equity, fringe or among other benefits or similar arrangements with any member current or former employee, officer, manager, director, consultant, or independent contractor containing continuing obligations of the any Company Group on the one hand and Seller Entity or with respect to which any Affiliate of Seller Company Entity has any Liability (other than any member of the Company Group) on the other handcontingent or otherwise);
(xii) all collective bargaining agreements relate to the provision of fiduciary, administrative, recordkeeping or Contracts other services in connection with any Union to which any member of the Company Group Benefit Plan that is a party; andnot terminable without penalty or other cost on thirty (30) days’ or less notice;
(xiii) grant any other Contract that is material to Person a power of attorney;
(xiv) provide for the use, lease or indefeasible right of use (“IRU”) of fiber by a Company Entity; or
(xv) was not entered into in the Ordinary Course of Business and which creates an obligation of the Company Group and not previously disclosed pursuant to this Section 3.10Entities in excess of $100,000. (collectively, the “Material Contracts”).
(b) Each True and complete copies of each Material Contract have been made available to the Buyer. Each of the Material Contracts is a valid and binding on obligation of the applicable Company Group member party thereto in accordance with its terms and Entity, is in full force and effect, and is enforceable by such Company Entity in accordance with its terms, except as may be limited by (A) applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws from time to time in effect which affect creditors’ rights generally, or (B) legal and equitable limitations on the availability of specific remedies. None of the Company Group member orEntities are, and to Seller’s Knowledge, any Sellers’ Knowledge each other party thereto to each such Material Contract is not, in material breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminateterms or conditions thereunder, any Material Contract. No and no event or circumstance has occurred that, which with notice or lapse of time or both, both would constitute an event of a material breach or default under any terms or conditions of any Material Contract or result in a termination thereof permit termination, modification or would cause acceleration thereof, or permit the acceleration or other changes of reduce any right or obligation or the loss of any benefit material benefits thereunder. Complete and correct copies of each Since January 1, 2016, neither the Sellers nor the Company Entities has received written notice that any party to any Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available intends to Buyerterminate any Material Contract or repudiate any provision thereof.
Appears in 2 contracts
Sources: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement
Material Contracts. (a) Except for (i) this Agreement and (ii) any Contracts disclosed in the Company SEC Documents, Section 3.10(a4.21(a) of the Company Disclosure Schedules lists Schedule contains an accurate and complete list of each Contract in the categories described below in this Section 4.21(a), in each case, to which the Company or any of its Subsidiaries is a party, or by which the assets or properties of such Persons are bound, and under which the Company or any of its Subsidiaries has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise), in each case as of the following Contracts of any member date hereof (each, whether or not set forth on Section 4.21(a) of the Company Group (such ContractsDisclosure Schedule, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being a “Material ContractsContract”):
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled by that (A) materially limits the member freedom of the Company Group without penalty or without more any of its Subsidiaries to compete in any line of business or geographic region, or with any Person, (B) contains any material “most favored nation” provision, exclusive dealing arrangement or arrangement that grants any call or put option, tag-along right, drag-along right, right of first refusal, right of first offer, right of first negotiation or similar preferential right to any other Person, (C) prohibits or materially limits the rights of the Company or any of its Subsidiaries to make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets, (D) purports to limit in any material respect the ability of the Company or its Subsidiaries (or, at and after the Effective Time, Parent or its Subsidiaries) to hire, employ or enter into a similar arrangement with any Person (other than 90 days’ noticeordinary course employee non-solicit or non-compete restrictions), (E) provides for the Company or any Subsidiary to be the exclusive or preferred provider of any product or service to any Person, or (F) provides for any Person to be the exclusive or preferred provider of any product or service to the Company or any Subsidiary or that otherwise involves the granting by the Company or any Subsidiary to any Person of exclusive or preferred rights of any kind;
(ii) all Contracts other than with respect to a partnership or entity that require any member of is wholly owned by the Company Group to purchase or any of its total requirements of Subsidiaries, any product partnership or service from a third party joint venture Contracts, or that contain “take any material strategic alliance, or pay” provisionsjoint development Contract;
(iii) all Contracts that provide for the indemnification by any member each Contract evidencing outstanding Indebtedness of the Company Group (solely under clauses (a) and (b) of the definition of “Indebtedness”) or any Person of its Subsidiaries or any financial guaranty thereof in an amount, together with any undrawn commitments to fund Indebtedness under such Contract, in excess of $10,000,000, other than (A) Contracts among the assumption Company and its wholly owned Subsidiaries and (B) financial guarantees entered into in the ordinary course of any Tax, environmental or other Liability of any Personbusiness with a value less than $10,000,000;
(iv) all Contracts that relate any Contract (excluding licenses for commercial off-the-shelf computer software or non-exclusive licenses granted in the ordinary course of business) to which the Company or any of its Subsidiaries is a party pursuant to which the Company or any of its Subsidiaries (A) is granted any license or right to use, or covenant not sue with respect to, any Intellectual Property of a Third Party or (B) has granted to a Third Party any license or right to use, or covenant not to sue with respect to, any Intellectual Property, and, in the case of both (A) and (B), which Contract is material to the Company and its Subsidiaries, taken as a whole;
(v) any collective bargaining agreement, works council agreement, labor or trade union contracts or other similar agreement with any union or other bargaining representative of any Company Employee (collectively, “Collective Bargaining Agreements”);
(vi) each Contract with any Company Service Provider that provides for any severance, retention, change in control, stay, transaction-based or similar bonuses or termination payments or benefits to such Company Service Provider with an aggregate value exceeding $1,000,000;
(vii) any Contract involving (A) a pending acquisition or disposition sale of (or option to purchase or sell) any business, a material amount of stock vessel or assets of any other Person material asset, including any Company Vessel (other than acquisitions or any real property dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets), in each case, other than with respect to the acquisition or sale of a vessel, involving assets with an aggregate fair market value not exceeding $10,000,000, (B) any acquisition or otherwise);
divestiture Contract that contains unpaid “earn out” or other similar contingent payment obligations that are reasonably expected to exceed $10,000,000 in the aggregate, or (vC) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors acquisition or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without divestiture Contract that contains material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Groupoutstanding indemnity obligations;
(viii) all Contracts any Contract that relates to the time or bareboat chartering (including time charters, bareboat charters or similar agreements with Governmental Authorities), management (technical and/or commercial), crewing, operation, stacking, finance leasing (including sale/leaseback or similar arrangements) or pooling of any Governmental Authority Company Vessel that has resulted in payments to which any member of or by the Company Group is a party (“Government Contracts”)or any of its Subsidiaries of more than $10,000,000 in the aggregate for the prior fiscal year;
(ix) all Contracts that limit any ship-sales, memorandum of agreement or purport other vessel acquisition Contract entered into since January 1, 2021 other than with respect to limit the ability of any member of the Company Group Vessels and any Contract entered into since January 1, 2021 with respect to compete in any line of business or with any Person or in any geographic area or during any period of timeNewbuildings and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(x) any Contracts to which Contract providing for an advance or capital contribution to, or investment in, any member of Person that is not the Company Group is a party that provide for or its Subsidiaries, in each case, in amounts exceeding $10,000,000 over any joint venture, partnership or similar arrangement by any member of the Company Group12-month period;
(xi) all Contracts between any Contract relating to financial (including interest rate and exchange rate) or among any member commodities hedging, swaps, options, futures, forward contracts or similar arrangements, in each case, having an outstanding principal or notional amount in excess of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand$10,000,000;
(xii) all collective bargaining agreements any Contract involving the settlement, conciliation or Contracts similar resolution of any Legal Action that (A) obligates the Company or its Subsidiaries (or, at and after the Effective Time, Parent and its Subsidiaries) to make payments after the date hereof in excess of $10,000,000, (B) imposes any continuing material non-monetary obligations (other than customary confidentiality obligations) on the Company or its Subsidiaries (or, at and after the Effective Time, Parent and its Subsidiaries), (C) involves the admission of criminal wrongdoing by the Company or its Subsidiaries (or, at and after the Effective Time, Parent and its Subsidiaries) or (D) is with any Union to which any member of the Company Group is a party; andGovernmental Authority;
(xiii) any other Contract that is material with any Governmental Authority involving payments to or by the Company or its Subsidiaries in an amount exceeding $1,000,000 in any calendar year during the term thereof;
(xiv) any Real Property Lease;
(xv) any Company Affiliate Contract;
(xvi) any Contract pursuant to which the Company or any of its Subsidiaries spent or received, in the aggregate, more than $10,000,000 during the twelve (12) months prior to the date hereof or could reasonably be expected to spend or receive, in the aggregate, more than $10,000,000 during the twelve (12) months immediately after the date hereof (including any Contract relating to any future capital expenditures by the Company Group and not previously disclosed pursuant to this Section 3.10or any of its Subsidiaries); and
(xvii) each Contract (including any side letters) governing or otherwise materially amending, modifying, supplementing any of the Exchangeable Notes Indenture or any of the Exchangeable Notes Hedge Obligations.
(b) Each Except for breaches, violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (or any breaches under any such Material Contract that arise by virtue of such Contracts having been shared with any Member), or as set forth on Section 4.21(b) of the Company Disclosure Schedule, as of the date hereof (i) each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect. None of effect and (ii) neither the Company Group member nor any of its Subsidiaries, nor to the Company’s Knowledge any other party to any such Contract, is in violation of any provision thereof and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries, or, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto is in breach thereto. To the Knowledge of or default under (or is alleged to be in breach the Company, as of or default under)the date hereof, or neither the Company nor any of its Subsidiaries has provided or received received, as of the date of this Agreement, any notice of any intention in writing to terminate, any Material Contract. No event terminate or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under not renew any Material Contract or result in that would be material to the Company and its Subsidiaries, taken as a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyerwhole.
Appears in 2 contracts
Sources: Merger Agreement (Washington Dennis R), Merger Agreement (Atlas Corp.)
Material Contracts. (a) Section 3.10(a) 3.13.1. As of the Disclosure Schedules lists each date hereof, neither the Company nor any Company Subsidiary is a party to or bound by any of the following Contracts of any member of (each, a “Material Contract” and collectively, the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(a) any agreement, contract or commitment for the sale of services by the Company or any Company Subsidiary, which services have not been performed as of the date hereof, and involving future receipts in excess of $100,000;
(b) any contract which is expected to involve payment by or to the Company and the Company Subsidiaries of more than $100,000 individually during the next twelve (12) months;
(c) any contracts with Governmental Entities or consent decrees of Governmental Entities to which the Company or any Company Subsidiary is bound;
(d) any Company IPR Agreement;
(e) any Material Lease;
(f) any contract that limits or restricts where the Company or any Company Subsidiary may conduct its business, the type or line of business in which the Company or any Company Subsidiary may engage, including any non-competition agreement, non-solicit or other restrictive covenant agreement, or with whom the Company or any Company Subsidiary may compete;
(g) any contract that provides for “most favored nations” terms or establish an exclusive sale, service or purchase obligation;
(h) any interest rate or non-U.S. currency swap, cap, collar, hedge or insurance agreement, or options or forwards on such agreements or other similar agreements for the purpose of managing the interest rate or non-U.S. exchange risk associated with its financings;
(i) each Contract any contract which contains restrictions with respect to payment of dividends or any other distributions in respect of the capital stock or other equity interests of the Company or any Company Subsidiary;
(j) any contract granting a right of first refusal, first offer or similar preferential right to purchase or acquire equity interests in the Company;
(k) any agreement with any employee or independent contractor that (i) provides for severance payments (in excess of those required by applicable Law, if any) if the Company or any Company Subsidiary terminates such employee’s or independent contractor’s employment or service without cause or such employee or independent contractor terminates his or her employment or service for good reason or (ii) provides for an annual compensation opportunity (including all salary, wages, target bonus opportunity, commissions, fees or similar payments) that exceeds or is reasonably expected by the Company to exceed $100,000;
(l) any contracts (other than this Agreement and the other Transaction Documents) pursuant to which the consummation of the transactions contemplated by this Agreement will, (i) result in any payment becoming due to any current or former employee, officer, director, or independent contractor of the Company or any of the Company Subsidiaries, (ii) increase any amount of compensation or benefits otherwise payable under any Company Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits under any Company Employee Plan, (iv) require any contributions or payments to fund any obligations under any Company Employee Plan, or (v) limit the right to merge, amend or terminate any Company Employee Plan;
(m) collective bargaining agreements or other contracts with any labor union or labor organization;
(n) any contracts relating to the settlement of any claim and pursuant to which the Company or any of the Company’s Subsidiaries is obligated to pay consideration after the date of this Agreement in excess of $100,000;
(o) any agreement that provides for the incurrence by the Company or any Company Subsidiary of Indebtedness;
(p) any agreement that provides for a loan or extension of credit by the Company or any Company Subsidiary to any other Person, except in the ordinary course of business consistent with past practice;
(q) any lease, rental agreement or installment or conditional sale agreement for personal property involving aggregate consideration future fixed annual rental payments in excess of $75,000;
(r) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ noticeindividually;
(iis) all Contracts that require any member of the Company Group to purchase its total requirements of any product agreement, contract or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate commitment relating to the disposition or acquisition of assets or disposition of any business, a material amount of stock or assets of any other Person or any real property securities (whether by merger, sale of stockconsolidation or other business combination, sale or purchase of securities, sale or purchase of assets or otherwise)) or any interest in any business enterprise, business segment or division outside the ordinary course of business;
(vt) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of contract providing for the guaranty by the Company Group or any Company Subsidiary of any obligations of a Company Subsidiary that is a party;not, directly or indirectly, wholly owned by the Company (including any joint venture) or any third Person; or
(viu) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership agreement or similar arrangement by any member limited liability company agreement.
3.13.2. Each of the Material Contracts is in full force and effect and constitutes a legal, valid and binding obligation of the Company Group;
(xi) all Contracts between or among any member of the applicable Company Group on Subsidiary and, to the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on Company’s Knowledge, the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on the Company Group member party thereto parties thereto, enforceable in accordance with its terms against the Company or the applicable Company Subsidiary and, to the Company’s Knowledge, the other parties thereto, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and similar Laws relating to or affecting creditors’ rights and remedies generally, or by general equity principles. The Company or the applicable Company Subsidiary, and to the Company’s Knowledge, each of the other parties to the Material Contracts, has fulfilled and performed in all material respects its obligations under each of the Material Contracts and is in full force and effect. None of the Company Group member not in, or, to Sellerthe Company’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach in, material default thereunder. To the Company’s Knowledge, no other party to any of the Material Contracts has materially defaulted thereunder. No written notice has been received by the Company or default under), or has provided or received any notice Company Subsidiary of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of material default under or termination of any Material Contract that has not been cured. As of the date hereof, the Company has delivered or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerBuyer true and complete copies of all Material Contracts and all material amendments or other modifications thereto or, in the case of oral Material Contracts, true, complete and correct summaries thereof.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Select Medical Corp)
Material Contracts. (a) Except as set forth in Section 3.10(a3.1(21)(a) of the Disclosure Schedules lists each Letter, as of the following Contracts date of this Agreement, neither the Company, any member of the Company Group (such Contractsits Subsidiaries is a party to or bound by, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):duplication:
(i) each other than Contracts with employees, any Contract involving aggregate consideration in excess that is reasonably expected to require, during the remaining term of $100,000 and whichsuch Contract, in each case, cannot be cancelled by the member of either (A) annual payments to or from the Company Group without penalty or without and its Subsidiaries of more than 90 days’ notice$1,000,000 or (B) aggregate payments to or from the Company and its Subsidiaries of more than $2,500,000;
(ii) all Contracts that require any member Contract relating to Indebtedness for borrowed money or the deferred purchase price of the Company Group to purchase its total requirements property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of any product or service from a third party or that contain “take or pay” provisions$2,500,000;
(iii) all Contracts that provide for the indemnification by any member of the Company Group Contract related to any settlement of any Person or the assumption of any Tax, environmental or other Liability of any Personmaterial Claims;
(iv) all Contracts that relate any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company or any of its Subsidiaries owns more than a 9.9% voting or economic interest, or any interest valued at more than $2,500,000 without regard to percentage voting or economic interest, except for any such agreements or arrangements solely between the Company and its wholly-owned Subsidiaries or solely among the Company's wholly-owned Subsidiaries;
(v) any Contract relating to the, direct or indirect, acquisition or disposition of any business, a material amount of stock assets or assets of any other Person or any real property business (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising excluding such Contracts to which any member of that are in the Company Group is a partyOrdinary Course;
(vi) all employment agreements and Contracts with independent contractors or consultants (any Contract that contains a put, call, right of first refusal, right of first offer or similar arrangements) right or obligation or any other obligation pursuant to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeany of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests or assets of any Person;
(vii) except for Contracts relating to trade receivablesany Contract that prohibits the payment of dividends or distributions in respect of the shares, all Contracts relating to indebtedness (includingmembership interests, without limitation, guarantees) of any member partnership interests or other equity interests of the Company Groupor any of its Subsidiaries, the pledging of the shares, membership interests, partnership interests or other equity interests of the Company or any of its Subsidiaries or the incurrence of Indebtedness by the Company or any of its Subsidiaries;
(viii) all Contracts with any Governmental Authority to which any member Contract that (A) restricts the ability of the Company Group is a party or any of its Affiliates or the Purchaser or any of its Affiliates from (“Government Contracts”)I) engaging in any business or competing in any business with any Person, or (II) operating its business in any manner or location, or (B) would require the disposition of any material assets or line of business of the Company or its Affiliates or acquisition of any material assets or line of business of any Person or the Purchaser or any of its Affiliates;
(ix) all Contracts any Contract that limit contains an exclusivity, "most favoured nation" or purport other similar provision applicable to limit the Company, any of its Subsidiaries, or any of its or their respective businesses, assets, products, services or Intellectual Property, or any other provision that restricts the ability of any member of the Company Group or any of its Subsidiaries to compete deal as it determines in any line of business its discretion with its or with any Person their respective businesses, assets, products, services or in any geographic area Intellectual Property (including the sale or during any period of time;licence thereof, as applicable); and
(x) any other Contract or group of related Contracts not otherwise described in the foregoing clauses (i) through (x) of this Section (21)(a) that if terminated or subject to which a breach or default by any member party thereto, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (together with each Contract constituting any of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member foregoing types of the Company Group;
Contracts described in clauses (xii) all Contracts between or among any member through (x) of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10(21)(a), a "Material Contract").
(b) Each A correct and complete copy of each Material Contract (including, for the avoidance of doubt, any amendments or supplements thereto) has been made available to the Purchaser.
(c) Except for expirations in the Ordinary Course and in accordance with the terms of such Material Contract, each Material Contract is valid and binding on the Company Group member and/or one or more of its Subsidiaries, as the case may be, and, to the knowledge of the Company, each other party thereto in accordance with its terms thereto, and is in full force and effect. None , except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) As of the date of this Agreement, and as of each of the First Tranche Closing Date, the Second Tranche Closing Date, and the Third Tranche Closing Date, as applicable, there is no breach or violation of or default under any Material Contract or Transaction Agreement by the Company Group member or any of its Subsidiaries or, to Seller’s Knowledgethe knowledge of the Company, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)thereto, or has provided or received any notice of any intention to terminate, any Material Contract. No and no event or circumstance has occurred thatthat with or without notice, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a breach or violation of or default under any such Contracts by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto or would permit or cause the termination or modification thereof or would cause or permit the acceleration or other changes creation of any right or obligation thereunder, in each case, except as would not, individually or in the loss of any benefit thereunder. Complete and correct copies of each aggregate, reasonably be expected to have a Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerAdverse Effect.
Appears in 1 contract
Material Contracts. (a) Section 3.10(a) Schedule 3.13 sets forth a true and complete list, as of the Disclosure Schedules lists each date hereof, of the following Contracts of (other than any member Benefit Plan) to which any Purchased Company is a party as of the Company Group date hereof (such Contracts, together with all Contracts concerning whether or not listed in Schedule 3.13, the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract involving Contracts where (A) the performance remaining thereunder involves aggregate consideration payable to or by any Purchased Company in excess of $100,000 500,000 per annum, other than “shrink wrap” or “click through” license agreements for standard software products, and which, in each case, cannot be cancelled by the member licenses or restricted use provisions that arise out of the purchase of off-the-shelf reagents from suppliers or through catalogs, and (B) such Contract is not cancelable, without premium or penalty, by any Purchased Company Group without penalty on thirty (30) days or without more than 90 days’ less notice;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product which contain covenants which restrict or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Purchased Company Group to compete in any line of business or with any Person or in any geographic area or during any period time period, or that contain any exclusivity, standstill or non-solicitation obligation binding on any of timethe Purchased Companies;
(iii) Contracts which relate to Indebtedness and Contracts under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness or Liabilities of any Purchased Company or (B) any Purchased Company has directly or indirectly guaranteed or assumed Indebtedness or Liabilities of any other Person (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(iv) Contracts under which any Purchased Company has made or will make, directly or indirectly, any advance, loan, extension of credit or capital contribution to, or other investment in, any other Person or Contracts relating to the making of any such advance, loan, extension of credit, capital contribution or other investment;
(v) mortgages, pledges or security agreements or similar Contracts or arrangements constituting a Lien upon the assets or properties of any Purchased Company;
(vi) Contracts for the sale or purchase of personal property having a value individually, with respect to all sales or purchases thereunder, in excess of $500,000, other than sales of Products in the ordinary course of business;
(vii) Contracts pursuant to which a Purchased Company (A) has been granted a license, sublicense or similar right to use the Intellectual Property Rights of a third party that is material to the conduct of the business as currently conducted with respect to the Exploitation of the Products (other than “shrink wrap” or “click through” license agreements for commercially available software products, and licenses or restricted use provisions that arise out of the purchase of off-the-shelf reagents from suppliers or through catalogs) or (B) has granted to a third party the right to use any of the Company Intellectual Property Rights (other than (1) licenses granted expressly or implicitly by a Purchased Company in connection with the sale, lease or transfer of any inventory of (but not other rights to) any Products to customers in the ordinary course of business, (2) non-exclusive licenses under confidentiality or non-disclosure agreements entered into in the ordinary course of business, (3) material transfer (or other similar research) agreements entered into in the ordinary course of the business that do not transfer ownership of, or exclusively license, any Intellectual Property Rights and (4) clinical trial agreements entered into in the ordinary course of business that do not transfer ownership of, or exclusively license, any Intellectual Property Rights) (collectively, “IP Contracts”);
(viii) Contracts for the production, manufacture, processing, filling, finishing, packaging, labeling, shipping, holding, or supply of any Product or the performance of any clinical trial-related services with respect to any Product;
(ix) Contracts for the sale or purchase of fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of $500,000, other than agreements in which the applicable acquisition or disposition has been consummated and there are not material obligations ongoing;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Groupall Leases;
(xi) all Contracts between for joint ventures, strategic alliances, partnerships, joint product development, collaborations, co-marketing arrangements or among any member of the Company Group on the one hand and Seller other similar agreements or any Affiliate of Seller (other than any member of the Company Group) on the other handarrangements;
(xii) Contracts involving the disposition or acquisition of any product line, business or significant portion of the assets, properties or business of the Purchased Companies, or any merger, consolidation or similar business combination transaction;
(xiii) all Government Contracts;
(xiv) Contracts with or involving any Purchased Company on the one hand, and (A) any current or former holder of Equity Interests of any Purchased Company or any Affiliate of any Purchased Company or of any such holder (other than a Purchased Company) or (B) any current or former director, officer or employee of any Purchased Company or any Affiliate (other than a Purchased Company) thereof on the other hand, in each case for any Contract with or involving any such former holder of Equity Interests or former director, officer or employee, only to the extent such Contract (x) is in effect as of the date of this Agreement and (y) imposes any payment or other material obligations on any Purchased Company following the Closing;
(xv) any collective bargaining agreements or similar Contracts with any Union labor union, works council or other labor organization;
(xvi) Contracts containing any provision requiring any Purchased Company to indemnify any other Person, excluding indemnities contained in Contracts for the purchase, sale or license of products or services in the ordinary course of business;
(xvii) Contracts (A) that contain an option or grant of any right of first refusal, right of first offer, right of first negotiation or similar right in favor of any Person and (B) in which any member of the Company Group is Purchased Companies have (1) granted (I) development rights, “most favored nation” pricing provisions, or (II) marketing or distribution rights relating to any Product or (2) agreed to purchase a minimum quantity of goods relating to any Product or has agreed to purchase goods relating to any Product exclusively from a certain party; and
(xiiixviii) Contracts involving any other Contract that is material resolution or settlement of any Litigation in excess of $500,000, or containing any covenant not to the ▇▇▇, concurrent use agreement, settlement agreement, pre-rights declaration or co-existence agreement with respect to Company Group and not previously disclosed pursuant to this Section 3.10Intellectual Property Rights.
(b) Each All Material Contract is Contracts are in full force and effect, and are legal, valid and binding on obligations of, the applicable Purchased Company Group member party thereto and, to the Company’s Knowledge, each other party thereto, and, in each case, is enforceable against the applicable Purchased Company party thereto and, to the Company’s Knowledge, each other party thereto in accordance with its the terms thereof (subject to applicable bankruptcy, insolvency, reorganization, moratorium Laws, or other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies). No Purchased Company is in full force and effect. None material breach or default under the terms of the Company Group member orany Material Contract, and, to Sellerthe Company’s Knowledge, any no other party thereto to any Material Contract is in material breach of or default under (thereunder. As of the date hereof, no Purchased Company has received or is alleged to be in given written notice of any material breach of or default under), or has provided or received any notice of any intention to terminatetermination of, any Material Contract. No event or circumstance has occurred thatPrior to the date hereof, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete true and correct copies complete copy of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have has been made available by the Company or its Affiliates or Representatives to BuyerParent or its Affiliates or Representatives.
Appears in 1 contract
Material Contracts. (a) Except for this Agreement and agreements filed as exhibits to the SEC Reports or as set forth in Section 3.10(a3.16(a) of the Disclosure Schedules lists each of the following Contracts of any member of Schedule, the Company Group (such Contractshas made available to Parent true, together with all Contracts concerning the occupancycorrect and complete copies, management including any amendments, schedules or operation of any Real Property (including without limitationexhibits, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):of:
(i) each Contract involving aggregate consideration that is a “material contract” (as such terms is defined in excess Item 601(b)(10) of $100,000 and which, in each case, cannot be cancelled by the member Regulation S-K of the Company Group without penalty or without more than 90 days’ noticeExchange Act);
(ii) all Contracts that require (A) evidencing Indebtedness for borrowed money or the deferred purchase price of property by the Company or any member Company Subsidiary (whether incurred, assumed, guaranteed, or secured by any asset) in excess of $500,000 (other than Contracts solely between the Company or any Company Subsidiaries) or (B) granting a Lien (other than a Permitted Lien) on any material assets of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisionsand the Company Subsidiaries;
(iii) all Contracts that provide for the indemnification by contain any member of noncompete or exclusivity provisions to which the Company Group or any Company Subsidiary is subject that would restrict the ability of Parent or any Person of its Subsidiaries (including the Company or the assumption any of its Subsidiaries) to compete in any Tax, environmental line of business or other Liability of any Persongeographic area;
(iv) any Contract that is a collective bargaining agreement, work council agreement, work force agreement or any other labor or trade union Contract applicable to the Company or any Company Subsidiary;
(v) any Contract with any individual employee, individual consultant, individual contractor or other individual service provider of the Company or any Company Subsidiary (A) providing for annual compensation in excess of $150,000 (other than offer letters setting forth the terms of an at-will employment arrangement and Employee IP Agreements), or (B) that is not terminable without severance or other penalty at any time, with or without notice, other than acceleration of equity awards pursuant to individual written Company Stock Option agreements and Company RSU agreements that are substantially in the forms that have been made available to Parent and Merger Sub;
(vi) any Contract that requires the Company or any Company Subsidiary conduct business on a “most favored nation” basis to the other party to such Contract;
(vii) all Contracts that relate prohibit (A) the payment of dividends or distributions in respect of the capital stock or other ownership interests of the Company or any Company Subsidiary, (B) the pledging of the capital stock or other ownership interests of the Company or any Company Subsidiary or (C) the issuance of guaranties by any Company Subsidiary;
(viii) all Contracts with a Governmental Authority involving payments to or from the Company in excess of $500,000 in the Company’s fiscal year ended December 31, 2024;
(ix) any Contract that provides for the settlement of any Action against the Company or any Company Subsidiary since May 27, 2021;
(x) any Contract that is a partnership, joint venture, limited liability or similar arrangement or agreement relating to the formation, creation, operation, management or Control of any partnership or joint venture with a Third Party;
(xi) each Contract entered into since May 27, 2021, that provides for the acquisition or disposition of any business, a material amount of stock or assets ownership of any tangible assets (other Person than acquisitions or dispositions in the ordinary course of business or otherwise with respect to immaterial assets) or any real property business (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which or capital stock or other equity interests of any member Person that contains continuing obligations of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other handSubsidiary;
(xii) all collective bargaining agreements or Contracts with any Union Contract that pertains to which any member of the Company Group is or any Company Subsidiary as a party; andlessor or lessee of any tangible personal property involving payments in excess of $500,000 per annum;
(xiii) any Contract with respect to an interest, rate, currency or other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.swap or derivative transaction;
(bxiv) each Contract with a Top Customer; and
(xv) each Contract with a Top Supplier. Each such Contract described in Section 3.16(a), a “Company Material Contract”. Each Company Material Contract is (i) a legal, valid and binding on the Company Group member party thereto in accordance with its terms agreement and is in full force and effect. None of effect and enforceable in accordance with its terms (subject to applicable Enforceability Limitations), except which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (ii) the Company Group member oror any Company Subsidiary, to Seller’s Knowledgeas applicable, any other party thereto is not in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Company Material Contract. No , and no event or circumstance has occurred that, with notice or without notice, lapse of time time, or both, would constitute an event a breach or default by the Company or a Company Subsidiary under the Company Material Contract; (iii) as of the date of this Agreement, to the Knowledge of the Company, none of the Company Material Contracts has been canceled by the other party nor has any Company Material Contract been materially amended or modified in a manner that is detrimental to the Company or applicable Company Subsidiary; (iv) as of the date of this Agreement, to the Knowledge of the Company, no other party is in breach or violation of, or default under, any Company Material Contract; and (v) as of the date of this Agreement, the Company and the Company Subsidiaries have not received any written claim of default under any Company Material Contract or result Contract, which has not been cured in a termination thereof or would cause or permit accordance with the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each cure provisions such Company Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Singular Genomics Systems, Inc.)
Material Contracts. (a) Except as set forth in Section 3.10(a3.1(21)(a) of the Disclosure Schedules lists each Letter, as of the following Contracts date of this Agreement, neither the Company, any member of the Company Group (such Contractsits Subsidiaries is a party to or bound by, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):duplication:
(i) each other than Contracts with employees, any Contract involving aggregate consideration in excess that is reasonably expected to require, during the remaining term of $100,000 and whichsuch Contract, in each case, cannot be cancelled by the member of either (A) annual payments to or from the Company Group without penalty or without and its Subsidiaries of more than 90 days’ notice$1,000,000 or (B) aggregate payments to or from the Company and its Subsidiaries of more than $2,500,000;
(ii) all Contracts that require any member Contract relating to Indebtedness for borrowed money or the deferred purchase price of the Company Group to purchase its total requirements property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of any product or service from a third party or that contain “take or pay” provisions$2,500,000;
(iii) all Contracts that provide for the indemnification by any member of the Company Group Contract related to any settlement of any Person or the assumption of any Tax, environmental or other Liability of any Personmaterial Claims;
(iv) all Contracts that relate any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company or any of its Subsidiaries owns more than a 9.9% voting or economic interest, or any interest valued at more than $2,500,000 without regard to percentage voting or economic interest, except for any such agreements or arrangements solely between the Company and its wholly-owned Subsidiaries or solely among the Company's wholly-owned Subsidiaries;
(v) any Contract relating to the, direct or indirect, acquisition or disposition of any business, a material amount of stock assets or assets of any other Person or any real property business (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising excluding such Contracts to which any member of that are in the Company Group is a partyOrdinary Course;
(vi) all employment agreements and Contracts with independent contractors or consultants (any Contract that contains a put, call, right of first refusal, right of first offer or similar arrangements) right or obligation or any other obligation pursuant to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeany of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests or assets of any Person;
(vii) except for Contracts relating to trade receivablesany Contract that prohibits the payment of dividends or distributions in respect of the shares, all Contracts relating to indebtedness (includingmembership interests, without limitation, guarantees) of any member partnership interests or other equity interests of the Company Groupor any of its Subsidiaries, the pledging of the shares, membership interests, partnership interests or other equity interests of the Company or any of its Subsidiaries or the incurrence of Indebtedness by the Company or any of its Subsidiaries;
(viii) all Contracts with any Governmental Authority to which any member Contract that (A) restricts the ability of the Company Group is a party or any of its Affiliates or, at or after the Closing, would restrict the Purchaser or any of its Affiliates from (“Government Contracts”);
(ixI) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete engaging in any line of business or competing in any business with any Person Person, or (II) operating its business in any geographic area manner or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venturelocation, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.
Appears in 1 contract
Material Contracts. (a) Section 3.10(a3.15(a) of the Company Disclosure Schedules Letter lists each of the following Contracts of contracts and agreements to which the Company or any member Company Subsidiary is party or is bound as of the Company Group date hereof, excluding the Benefit Plans and Benefit Agreements and any Government Contract (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements other than as set forth in Section 3.12(b3.15(a)(xiv) of the Disclosure Schedulesbelow) (such contracts and agreements, being “Material Contracts”):
(i) each any management, service, consulting or other similar Contract which is reasonably likely to require payments to the Company in the current fiscal year in excess of $500,000;
(ii) any management, service, consulting or other similar Contract which is reasonably likely to require payments to any person (other than the Company or any Company Subsidiary) in excess of $2,000,000 over the remaining term of such Contract;
(iii) any partnership, joint venture or similar Contract involving aggregate the sharing of any significant portion of the revenues or profits of the Company or any of the Company Subsidiaries with a third party (other than subcontractor arrangements in the ordinary course of business);
(iv) any Contract relating to a pending acquisition or disposition (whether by acquisition, sale of stock, sale of asset, merger or otherwise) of any business or any corporation, partnership, joint venture, association or other business organization or division thereof or any material amount of assets in any case providing for consideration in excess of $100,000 and which500,000;
(v) any Contract containing any covenant not to compete or restricting the development, in each case, cannot be cancelled by marketing or distribution of the member services of the business of the Company Group without penalty or without more than 90 days’ noticeand the Company Subsidiaries that limits in any material respect the conduct of the business as currently conducted (excluding covenants restricting the solicitation of employees);
(iivi) all Contracts any Contract that require any member of requires the Company Group or any Company Subsidiary to purchase its minimum or total requirements of any product or service from a third party person or that contain contains “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member provisions which, individually, is in excess of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice$100,000;
(vii) except for Contracts relating any Contract pursuant to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of which the Company Groupor any Company Subsidiary has (A) granted pricing or other terms to a person on a “most favored nation” or similar basis (B) agreed to deal with a person on an exclusive basis or (C) granted to any person any right of first refusal, right of first offer or similar rights with respect to any material property rights or business opportunities;
(viii) all Contracts any Contract with any Governmental Authority person providing for an unexpired obligation to which indemnify any member person with respect to liabilities relating to the business, other than the constitutive documents of Sellers and any of their subsidiaries, and marketing agreements, licenses, leases and other commercial agreements entered into in the Company Group is a party (“Government Contracts”)ordinary course of business consistent with past practice;
(ix) all any Contract for Indebtedness (other than (i) accounts payable with respect to purchase Contracts that limit and orders in the ordinary course of business consistent with past practice and (ii) Contracts pursuant to which the Company or purport to limit any Company Subsidiary has repayment or other payment obligations following the ability date of this Agreement in an amount less than $5,000,000) and any member mortgage, security agreement, guarantee, pledge agreement or similar Contract providing for any Lien (other than Permitted Liens) on any of assets of the Company Group to compete in or any line of business or with any Person or in any geographic area or during any period of timeCompany Subsidiary and that secures Indebtedness;
(x) any Contracts Company Intangible Contract with respect to which or affecting any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Groupmaterial Intangible;
(xi) all Contracts between any Contract relating to the making or among guaranteeing of any member of loan by the Company Group on the one hand and Seller or any Affiliate Company Subsidiary, except for advances to employees for normal reimbursable business expenses made in the ordinary course of Seller business consistent with past practice (and other than to any member of the Company Group) on the other handSeller);
(xii) all collective bargaining agreements any Contract between or Contracts with among the Company or any Union to which Company Subsidiary, on the one hand, and any member affiliate, officer, director or manager of any of the Company Group is a party; andor any Company Subsidiary, on the other hand, that was not negotiated or entered into on an arm’s-length basis;
(xiii) any Contract (other than this Agreement) with Sellers or any (A) affiliate of Sellers (other than the Company or a Company Subsidiary), (B) any current or former director or executive officer of any Seller or affiliate of such Seller or (C) any member of the immediate family of any of the foregoing;
(xiv) any active Government Contract that is material which required payments to the Company Group and in the fiscal year ended December 31, 2017 in excess of $7,500,000; and
(xv) any other Contract (other than any Benefit Plan or Benefit Agreement), not previously disclosed pursuant to otherwise covered by clauses (i) through (xiv) of this Section 3.103.15(a) that is reasonably likely to require payments by or to the Company or any Company Subsidiary following the date hereof in excess of $1,000,000 during any fiscal year, or $5,000,000 over the remaining term of any such Contract.
(b) Each (i) Member Representative or the Company has heretofore made available to Purchaser true and complete copies of each Material Contract; and
(ii) each Material Contract (x) constitutes a valid and binding obligation of the Company or the Company Subsidiary party thereto, as the case may be, and, to the Knowledge of the Company, the other parties thereto, and (y) assuming such Material Contract is a valid and binding on obligation of and enforceable against the other parties thereto, is enforceable against the Company Group member party thereto or such Company Subsidiary, as the case may be, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in accordance with its terms general and subject to general principles of equity (regardless of whether such enforceability is considered in full force a proceeding at Law or in equity).
(c) Other than as would not reasonably be expected to be material to the Company and effect. None the Company Subsidiaries, taken as a whole, none of the Company, the Company Group member Subsidiaries or, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto to any Material Contract is in breach of or default under (or is alleged to be in breach of violation of, or default under), or has provided or received repudiated any notice of any intention to terminateprovision of, any Material Contract. No , nor has any event or circumstance has occurred that, that with notice or the lapse of time time, or the giving of notice, or both, would constitute an event of a default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (On Assignment Inc)
Material Contracts. (a) Except (i) for this Agreement, and (ii) for contracts filed as exhibits to SEC Documents filed by the Company Parties prior to the date hereof, as of the date of this Agreement, no Company Party nor any of their Subsidiaries is a party to or bound by any contract (whether written or oral) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act) (excluding Company Leases, which are the subject of representations contained in Section 3.10(a4.16).
(b) Other than the contracts described in Section 4.17(a) and for Material Recorded Documents, Section 4.17(b) of the Company Disclosure Schedules lists Letter sets forth a complete list, in each case as of the following Contracts date hereof, of each contract, agreement, lease, license, note, bond, mortgage, indenture, commitment or other instrument or obligation to which the Company or any member Company Subsidiary is a party or bound (each such contract (but in the case of the Company Group contracts described in clause (such Contractsix), solely for purposes of this Section 4.17), together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed contracts described in Section 3.11(b4.17(a) and the Material Recorded Documents (but, for the avoidance of doubt, excluding Company Leases and Company Ground Leases, which are the subject of the Disclosure Schedules and all Company IP Agreements set forth representations contained in Section 3.12(b4.16), a “Company Material Contract”) of the Disclosure Schedules, being “Material Contracts”):that:
(i) each Contract involving aggregate consideration in excess is a limited liability company agreement, partnership agreement or joint venture agreement or similar contract or arrangement with any Person (other than any wholly-owned Subsidiary of $100,000 and which, in each case, cannot be cancelled by any Company Party) or sets forth the member operational terms of the Company Group without penalty or without more than 90 days’ noticeany such arrangement;
(ii) all Contracts that require contains any member non-compete or exclusivity provision or otherwise limits in any material respect the ability of the Company Group or any Company Subsidiaries to purchase its total requirements engage in any line of business in any product or service from geographic area, except for any such provision that may be contained in a third party or that contain “take or pay” provisionsCompany Lease;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental evidences a capitalized lease obligation or other Liability of Indebtedness to any Person, or any guaranty thereof, in excess of $15,000,000;
(iv) all Contracts that relate provides for the pending purchase or sale, option to the acquisition purchase or disposition sell, right of any businessfirst refusal, a material amount right of stock first offer or assets other right to purchase, sell, dispose of any other Person or any real property ground lease (whether by merger, sale of stock, by purchase or sale of assets or stock, by lease or otherwise)) of (x) any Company Property or any portion (other than an immaterial portion the disposition of which would not materially and adversely affect the applicable Company Property) thereof or (y) other material asset with a fair market value or purchase price greater than $15,000,000;
(v) all brokercontains a put, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts call or similar right pursuant to which any member of the Company Group is or any Company Subsidiary would be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a partyfair market value or purchase price of more than $15,000,000;
(vi) all employment agreements and Contracts with independent contractors relates to the settlement of any Action or consultants any threatened Action during the last five (or similar arrangements5) to which any member years involving payment of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice$15,000,000;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the constitutes a Company GroupTax Protection Agreement;
(viii) all Contracts with any Governmental Authority to which any member of (A) requires the Company Group is or any Company Subsidiary to provide any funds to or make any investment in (in each case, in the form of a party loan, capital contribution or similar transaction) any Company Subsidiary (“Government Contracts”)other than any wholly-owned Subsidiary of a Company Party) or other Person in excess of $15,000,000 or (B) evidences a loan (whether secured or unsecured) made to any Person (other than any Company Party or wholly-owned Subsidiary thereof) in excess of $15,000,000;
(ix) all Contracts is an agreement entered into by the Company or any Company Subsidiary that limit obligates the Company or purport any Company Subsidiary to limit indemnify any past or present directors, officers, or employees of the ability Company, any Company Subsidiary, Mercury or any Mercury Subsidiary pursuant to which the Company or a Company Subsidiary is the indemnitor, other than any customary indemnification obligations arising pursuant to the organizational or governing documents of any member of Company Party or Company Subsidiary or under the Company Group to compete in any line of business Company’s directors’ and officer’s or with any Person or in any geographic area or during any period of timesimilar management liability insurance policy;
(x) any Contracts to which collective bargaining agreement or other written agreement (including any member of the Company Group is a party that provide for any joint venture, partnership owner’s or landlord letter or similar arrangement by any member of the agreement) entered into between a Company Group;Party or Company Subsidiary and a Union or labor union organization (including owner’s agreements, card check neutrality agreements and agreements relating to “after acquired” properties); or
(xi) all Contracts between constitutes an interest rate cap, interest rate collar, interest rate swap, forward purchasing contract or among any member of the Company Group on the one hand and Seller other contract or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union agreement relating to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10hedging transaction.
(bc) Each Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each Company Material Contract is valid legal, valid, binding and binding enforceable on the Company Group member Parties and each Company Subsidiary that is a party thereto in accordance with its terms and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, the Company Parties and each Company Subsidiary has performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the Knowledge of the Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof. None of the Company Group member orParties or any Company Subsidiary, nor, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto thereto, is in breach of or default under (or is alleged to be in breach of violation of, or default under), or has provided or received any notice of any intention to terminate, any Company Material Contract. No , and no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of a violation, breach or default under any Company Material Contract Contract, except, in each case, where such breach, violation or result default is not reasonably likely to have, individually or in the aggregate, a termination thereof Material Adverse Effect. None of the Company Parties or would cause or permit the acceleration or other changes any Company Subsidiary has received written notice of any right violation or obligation default under, or a notice purporting or threatening to terminate or cancel any Company Material Contract, except for violations or defaults that, individually or in the loss of any benefit thereunderaggregate, would not reasonably be expected to have a Material Adverse Effect. Complete The Company has made available to Parent true and correct complete copies of each all Company Material Contract (Contracts as of the date hereof, including all modifications, amendments and supplements thereto and waivers thereunder) have been made available entered into prior to Buyerthe date hereof.
Appears in 1 contract
Sources: Master Transaction Agreement (MGM Growth Properties Operating Partnership LP)
Material Contracts. (a) Except for the Contracts listed in Section 3.10(a5.11(a) of the Company Disclosure Schedules lists each Letter or Contracts that the Company or its Subsidiaries are prohibited by applicable Law (including as interpreted by a Governmental Authority) from disclosing to any other Person, as of the following Contracts date of any member of this Agreement, neither the Company Group (such Contracts, together with all Contracts concerning the occupancy, management nor any of its Subsidiaries is a party to or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):bound by:
(i) each Contract involving aggregate consideration in excess of $100,000 and whichany limited liability company agreement, in each casepartnership, cannot be cancelled by the member joint venture, teaming or other similar agreement or arrangement with respect to any material business of the Company Group without penalty or without more any of its Subsidiaries, other than 90 days’ noticeany such limited liability company, partnership or joint venture that is a wholly-owned Subsidiary of the Company;
(ii) all Contracts that require any member Contract relating to or evidencing indebtedness for borrowed money, capitalized leases, hedging, swap or derivative transactions, purchase money obligations, off balance sheet financing arrangements or guarantees of the Company Group to purchase its total requirements liabilities of any product or service from a third party or that contain “take or pay” provisionsother Person, in an amount in excess of $1,000,000 individually;
(iii) all Contracts any Contract that provide for purports to limit the indemnification by any member right of the Company Group or its Subsidiaries or any Affiliate of the Company to engage or compete in any Person material line of business or in any geographic area unless terminable by the assumption of any TaxCompany or its Subsidiaries within thirty (30) days without penalty, environmental payments, premium or other Liability of any Personcharges;
(iv) all Contracts that relate any Contract entered into after January 1, 2010 for the acquisition or disposition, directly or indirectly (by merger or otherwise), of any material assets or any capital stock or other equity interests of any Person, other than any such acquisitions or dispositions in the ordinary course of business consistent with past practice;
(v) any Contract relating to the acquisition or disposition of any business, a material amount of assets or any capital stock or assets other equity interests of any other Person pursuant to which the Company or any real property of its Subsidiaries has continuing indemnification, “earn-out” or other payment obligations (whether by merger, sale of stock, sale of assets contingent or otherwiseactual);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts any Contract involving the lease of real property with independent contractors or consultants (or similar arrangements) to which payments in excess of $100,000 in any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticecontract year;
(vii) except for Contracts relating any Contract (including any Government Contract) (A) granting an exclusive license (including with respect to trade receivables, all Contracts relating to indebtedness (including, without limitation, guaranteesa field of use or a territory) of any member Company Intellectual Property to any Person (except for Intellectual Property developed for a particular product for a customer); (B) involving the joint development or joint ownership of the any material Company GroupIntellectual Property (other than with respect to Government Contracts where joint development rights or joint ownership rights arise by operation of Law); or (c) creating a Lien (other than Permitted Liens) in any Company Intellectual Property (other than rights of third parties pursuant to non-exclusive licenses);
(viii) all Contracts with any Governmental Authority Government Contract pursuant to which any member of which, or pending Government Contract Bid that if granted to the Company Group is a party (“Government Contracts”)or any of its Subsidiaries, the Company or any of its Subsidiaries would receive payments in excess of $5,000,000 in any contract year;
(ix) all Contracts that limit any (A) Contract involving the sales of goods and/or the performance of services by the Company or purport any of its Subsidiaries pursuant to limit which the ability Company or such Subsidiary would receive payments from a third Person in excess of $5,000,000 in any member contract year; (B) Contract (other than this Agreement) under which the Company and its Subsidiaries are obligated to or will make payments in the future in excess of $5,000,000 per year or $8,000,000 during the life of the Company Group to compete in any line Contract (including leases of business personal property); or (C) material Contract with any Person a Key Customer or in any geographic area or during any period of timeKey Supplier;
(x) any Contracts Contract (i) pursuant to which any member of the Company Group is or its Subsidiaries sources all of a party that provide for any joint ventureparticular product from one (1) Person and/or such Person’s Affiliates (i.e., partnership a “sole-source” supply Contract) or similar arrangement by any member of (ii) pursuant to which the Company Groupor its Subsidiaries grants any one (1) Person and/or such Person’s Affiliates the exclusive right to be the sole acquiror of a Company Product;
(xi) all Contracts between any distributor, value added reseller, sales representative, dealer, channel partner or among any member of similar Contract pursuant to which the Company Group on the one hand and Seller makes or expects to make payments in an amount in excess of $1,000,000 in any Affiliate of Seller (other than any member of the Company Group) on the other handcontract year;
(xii) all collective bargaining agreements any settlement agreement or Contracts material Order with a Governmental Entity or any Union other Person to which any member of the Company Group or any Subsidiary is a partyparty or is bound since January 1, 2008 (other than with respect to ordinary course employee terminations); and
(xiii) any Contracts containing minimum purchase conditions in excess of $1,000,000 or requirements or other Contract terms that is material to restrict or limit the purchasing relationships of the Company Group or its Subsidiaries, or any customer, licensee or lessee thereof or contain any most-favored-nation or similar provisions. The Contracts described in clauses (i) — (xiii), together with all exhibits, annexes, addenda, schedules and not previously disclosed pursuant amendments to this Section 3.10such Contracts, being the “Material Contracts”.
(b) Each Except as prohibited by applicable Law (including as interpreted by a Governmental Authority) or applicable contractual restrictions, a true and complete copy of each Material Contract not filed as part of a Company Report prior to the third (3rd) date of this Agreement has previously been made available to Parent. Except as has not had or would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is a valid and binding on agreement of the Company Group member party thereto in accordance with or one of its terms Subsidiaries, as the case may be, and is in full force and effect. None , (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company Group member or, to Seller’s KnowledgeCompany, any other party thereto is in breach of (with 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. No event or circumstance has occurred that, with notice or without the lapse of time or the giving of notice, or both, would constitute an event ) is in default or breach under the terms of default under any Material Contract and (iii) neither the Company nor any Subsidiary has received any written notice of the termination or result in a termination thereof or would cause or permit the acceleration or other changes cancellation of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerContract.
Appears in 1 contract
Material Contracts. Neither the Company nor any of its Subsidiaries is a party to or bound by any contract, agreement or other instrument (a) Section 3.10(athat is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the Disclosure Schedules lists each of the following Contracts of any member of SEC), (b) that limits or restricts the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete its Subsidiaries from engaging in any line of business or with any Person or in any geographic area or during any period of time;
area, (xc) any Contracts that is a loan and credit agreement, note, debenture, bond, indenture and other similar contract pursuant to which any member indebtedness of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller its Subsidiaries, in each case in excess of $10.0 million, is outstanding or may be incurred (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member Lines of Credit, the Company Group is a party; and
Financing Agreements and trade payables incurred in the ordinary course of business), (xiiid) that by its terms requires aggregate payments by the Company or any of its Subsidiaries of more than $10.0 million over the remaining term of such contract, except for any such contract that may be canceled without any material penalty or other Contract that is material liability to the Company Group or any of its Subsidiaries upon notice of 90 days or less and not previously disclosed pursuant to except for any Company Lease, or (e) for the acquisition or disposition by the Company or any of its Subsidiaries of properties or assets for, in each case, aggregate consideration of more than $25.0 million, except for acquisitions of supplies and acquisitions and dispositions of inventory in the ordinary course of business and capital expenditures contemplated by Section 6.1(e)(i). Each contract of the type described in the first sentence of this Section 3.10.
(b) Each Material Contract 4.16 is valid and binding on the referred to herein as a “Company Group member party thereto in accordance with its terms and is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event .” The Company has made available or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete provided to Parent complete and correct copies of each Company Material Contract. Neither the Company nor any of its Subsidiaries has Knowledge of, or has received notice of, any default under (or any condition which with the passage of time or the giving of notice would cause such a default under) any Company Material Contract (including all modificationsto which it is a party or by which it or any of its assets is bound, amendments except for such defaults that, individually or in the aggregate, have not had and supplements thereto and waivers thereunder) would not reasonably be expected to have been made available to Buyera Material Adverse Effect on the Company.
Appears in 1 contract
Sources: Merger Agreement (CDW Corp)
Material Contracts. (a) Except for this Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xx) of Section 3.10(a3.16(a) of the Company Disclosure Schedules lists each Schedule, as of the following Contracts of any member date hereof, none of the Company Group (such or any of its Subsidiaries is a party to or bound by the following Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”)::
(i) each any Contract involving aggregate consideration in excess of $100,000 and which, in each case, cannot that would be cancelled required to be filed by the member Company pursuant to Item 4 of the Company Group without penalty or without more than 90 days’ noticeInstructions to Exhibits of Form 20-F under the Exchange Act;
(ii) all Contracts that require any member Contract relating to the formation, creation, operation, management or control of any Subsidiary of the Company Group to purchase its total requirements of or any product other partnership, joint venture, strategic collaboration, global affiliation or service from a third party business cooperation, limited liability company or that contain “take or pay” provisionssimilar arrangement;
(iii) all Contracts that provide for any Contract involving a loan (other than accounts receivable from trade debtors in the indemnification by any member ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company Group and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person or any Contract relating to the making of any Person such loan, advance or the assumption of any Tax, environmental or other Liability of any Personinvestment for more than US$5,000,000;
(iv) all Contracts that relate to any Contract involving Indebtedness of the acquisition or disposition of any business, a material amount of stock or assets of any other Person Company or any real property (whether by merger, sale of stock, sale its Subsidiaries of assets or otherwise)more than US$5,000,000;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to any Contract (including so called take-or-pay or keep-well agreements) under which any member person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company Group is a partyor any of its Subsidiaries of more than US$5,000,000;
(vi) all employment agreements and Contracts with independent contractors any Contract granting or consultants (evidencing a Lien on any properties or similar arrangements) to which any member assets of the Company Group is a party and which are not cancellable without material penalty or without any of its Subsidiaries with value of more than 90 days’ noticeUS$5,000,000, other than a Permitted Encumbrances;
(vii) except for Contracts relating to trade receivablesany management service, consulting, financial advisory or any other similar type Contract and all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Groupwith investment or commercial banks;
(viii) all Contracts any Contract for the acquisition, disposition, sale, transfer or lease (including leases in connection with any Governmental Authority to which any member financing transactions) of properties or assets of the Company Group is or any of its Subsidiaries that have a party fair market value or purchase price of more than US$5,000,000 (“Government Contracts”)by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as to which claims are pending;
(ix) all any Contracts that limit involving any resolution or purport to limit the ability settlement of any member of the Company Group to compete actual or threatened litigation, arbitration, claim or other dispute with amount in any line of business or with any Person or in any geographic area or during any period of timecontroversy greater than US$5,000,000;
(x) any Contracts to which any member of the Company Group is Contract involving a party that provide for any joint venture, partnership standstill or similar arrangement by any member of the Company Grouparrangement;
(xi) all Contracts between any non-competition Contract or among other Contract that purports to limit, curtail or restrict in any member material respect the ability of the Company Group on the one hand and Seller or any Affiliate of Seller (other than its Subsidiaries to compete in any member geographic area, industry or line of the Company Group) on the other handbusiness;
(xii) all collective bargaining agreements or Contracts with any Union to which Contract for the employment of any member of the Company Group is a party; andsenior executive officer;
(xiii) any other Contract that is material contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than US$5,000,000;
(xiv) any Contract (other than Contracts granting Company Options, or Company RSs) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Transactions, including the Merger, where (A) such Contract requires any payment in excess of US$5,000,000 to be made by the Company or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) 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, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the Company or any of its Subsidiaries;
(xvi) any Contract providing for (A) a license, covenant not to ▇▇▇ or other right granted by any Third Party under any Intellectual Property to the Company or any of its Subsidiaries, (B) a license, covenant not to ▇▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (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 of clauses (A) through (D), other than agreements for off-the-shelf Software and such Contracts that are not material to business of the Group Companies, taken as a whole, and not previously in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the ordinary course of business;
(xvii) any Contract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments of more than US$5,000,000 in any one year;
(xix) each Control Agreement and any other any Contract which (A) provides 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) provides the Company or any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (C) transfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Company;
(xx) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to this Section 3.10Item 7B or Item 19 of Form 20-F under the Exchange Act (including those that would be required to be disclosed if the Form 20-F were filed as of the date hereof); or
(xxi) any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract described in clauses (i) to (xxi) and each such Contract that would be a Material Contract if it had not been filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract.”
(b) Each Except as would not have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Material Contract is a legal, valid and binding on the obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company Group member party thereto 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. None effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company and, to the knowledge of the Company Group member orCompany, to Seller’s Knowledgeno counterparty, any other party thereto is in breach of or default under (or is alleged to be in breach of or violation of, or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event ; (iv) to the knowledge of the Company, no person intends to terminate any Material Contract; and (v) neither the execution of this Agreement nor the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or circumstance has occurred that, with notice or lapse otherwise adversely affect any of time or both, would constitute an event the rights of default any Group Company under any Material Contract Contract. The Company has furnished or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to BuyerParent true and complete copies of all Material Contracts, including any amendments thereto.
Appears in 1 contract
Material Contracts. (a) Section 3.10(a3.17(a) of the Disclosure Schedules Schedule lists each of the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning amendments, to which the occupancy, management Company or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) Company Subsidiary is a party as of the Disclosure Schedules and all date of this Agreement (such Contracts being the “Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract involving aggregate consideration that is a “material contract” (as such terms is defined in excess Item 601(b)(10) of $100,000 and which, in each case, cannot be cancelled by the member Regulation S-K of the Exchange Act), other than those agreements and arrangements described in Item 601(b)(10)(iii)(C) with respect to the Company Group without penalty or without more than 90 days’ noticeany Company Subsidiary;
(ii) all employment Contracts of those employees and managers that require any member of received from the Company Group to purchase its total requirements or any Company Subsidiary annual cash compensation (including base salary, commissions, and annual or other periodic or project bonuses) in excess of $350,000 in fiscal years 2018, 2019 and 2020 and all consulting Contracts for those consultants that received from the Company or any product or service from a third party or that contain “take or pay” provisionsCompany Subsidiary annual compensation in excess of $350,000 in fiscal years 2018, 2019 and 2020;
(iii) all Contracts (A) relating to the creation, incurrence, assumption or guarantee of any Indebtedness or (B) that provide for the indemnification by are mortgages, pledges, security agreements, deeds of trust or other Contract granting a Lien (other than a Permitted Lien) on any member material property or assets of the Company Group of any Person or and the assumption of any Tax, environmental or other Liability of any PersonCompany Subsidiaries;
(iv) all Contracts that relate (A) grant to a Third Party any right of first refusal or first offer or similar right, (B) limit in material respects, or purport to limit in all material respects, the ability of the Company or any Company Subsidiary or, upon the consummation of any Transaction, Parent or any of its subsidiaries to compete in respect of any business with any person or entity or in any geographic area or during any period of time or to acquire any entity, (C) materially limit or propose to materially limit the ability of the Company or any of the Company Subsidiaries or affiliates to sell, transfer, pledge or otherwise dispose of any assets or businesses or (D) would require the disposition of any material assets or line of business of the Company and any Company Subsidiary;
(v) all Contracts requiring or reasonably expected to require capital commitment or capital expenditures (including any series of related expenditures) by the Company or any Company Subsidiary following the date hereof in excess of $1,000,000, individually or in the aggregate;
(vi) all Contracts under which the Company or any Company Subsidiary, directly or indirectly, has agreed to make any advance, loan, extension of credit or capital contribution to, or other investment in, any person (other than the Company or any Company Subsidiary), in any such case which, individually, is in excess of $350,000, other than advancement of business expenses to employees in the ordinary course of business consistent with past practice;
(vii) any Contract that is a Collective Bargaining Agreement;
(viii) any Contract that requires the Company or any Company Subsidiary to deal exclusively with any person with respect to any matter or that provide “most favored nation” pricing or terms to the other party to such Contract or any third party, including any such Contract that, following the Effective Time, would apply to Parent or any of its subsidiaries;
(ix) all Contracts that contain “non-solicitation,” “no hire” or similar provision that restricts the Company or any Company Subsidiary from soliciting, hiring, engaging, retaining or employing any person’s current or former employees or from soliciting any client or customer of any person;
(x) all Contracts that prohibit or restricts (A) the payment of dividends or distributions in respect of the capital stock or other ownership interests of the Company or any Company Subsidiary, (B) the pledging of the capital stock or other ownership interests of the Company or any Company Subsidiary or (C) the issuance of guarantees by any Company Subsidiary;
(xi) all Contracts with a Governmental Authority involving payments to or from the Company in excess of $350,000 in the fiscal years 2018, 2019 and 2020;
(xii) any Contracts associated with the right to operate the largest twenty DAS or WiFi venues, largest twenty military bases and largest twenty (20) multifamily properties, in each case, as measured by the Company and Company Subsidiaries revenues from such venue in the fiscal year 2020;
(xiii) any of the fifty (50) largest Contracts as measured by the Company and Company Subsidiaries revenues from such customer in the fiscal year 2020;
(xiv) any Contract that provides for the settlement of any Action against the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any existing obligation in excess of $350,000 or which provides for a settlement of any Action by the granting of injunctive or other equitable relief;
(xv) any Contract that is a partnership, joint venture, limited liability or similar arrangement or agreement relating to the formation, creation, operation, management or control of any partnership or joint venture with a third party material to the Company or any Company Subsidiary, unless immaterial to the Company and the Company Subsidiaries;
(xvi) any Contract that provides for the acquisition or disposition of ownership any assets (other than acquisitions or dispositions in the ordinary course of business, a material amount of stock or assets of any other Person ) or any real property business (whether by merger, sale of stock, sale of assets or otherwise)) or capital stock or other equity interests of any person, that contains material continuing rights or obligations of the Company or any Company Subsidiary, including any indemnification, guarantee, “earn-out” or other contingent payment obligations;
(vxvii) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts any Contract that pertains to which any member of (A) the Company Group is Leased Real Property or (B) the Company or any Company Subsidiary as a partylessor or lessee of any personal property involving payments in excess of $350,000 per annum;
(vixviii) all employment agreements and Contracts with independent contractors or consultants (any Contract that contains a put, call or similar arrangements) right pursuant to which any member of the Company Group is or any Company Subsidiary could be required to purchase or sell, as applicable, any equity interests of any person or assets, in each case with a party and which are not cancellable without material penalty or without more than 90 days’ noticevalue in excess of $350,000;
(viixix) except for Contracts relating any Contract obligating the Company or any Company Subsidiary to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member provide material indemnification outside of the Company Groupordinary course of business;
(viiixx) all Contracts with any Governmental Authority Contract that contains a standstill or similar agreement pursuant to which any member of the Company Group is a party (“Government Contracts”)or any Company Subsidiary has agreed not to acquire assets or securities of another person;
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xxxi) any Contracts Contract with respect to which any member of the Company Group is a party that provide for any joint venturean interest, partnership rate, currency or similar arrangement by any member of the Company Group;
(xi) all Contracts between other swap or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller derivative transaction (other than any member of those between the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partySubsidiary); and
(xiiixxii) any Contract with an affiliate or other Contract person that is material would be required to be disclosed under Item 404(a) of Regulation S-K of the Company Group and not previously disclosed pursuant to this Section 3.10.Exchange Act;
(bi) Each each Company Material Contract is a legal, valid and binding on the Company Group member party thereto in accordance with its terms agreement and is in full force and effect. None effect and enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the rights and remedies of creditors generally and general principles of equity governing the availability of equitable remedies); the Company Group member oror any Company Subsidiary, to Seller’s Knowledgeas applicable, any other party thereto is not in breach of or default under any Company Material Contract (other than any defaults that the Company or is alleged a Company Subsidiary has cured, or that would not be expected to be in breach of or default underhave a Material Adverse Effect), or has provided or received any notice of any intention to terminateand, any Material Contract. No no event or circumstance has occurred condition exists that, with notice or without notice, lapse of time time, or both, would constitute an event a default by the Company or a Company Subsidiary under the Company Material Contract (other than any defaults that would not be expected to have a Material Adverse Effect); none of the Company Material Contracts has been canceled by the other party; (ii) to the knowledge of the Company, no other party is in breach or violation of, or default under, any Company Material Contract (other than any material breaches that any other party has cured, or that would not be expected to have a Material Adverse Effect); (iii) as of the date of this Agreement, the Company and the Company Subsidiaries have not received any written claim of default under any Company Material Contract, which has not been cured in accordance with the cure provisions such Contract; (iv) neither the execution of this Agreement nor the consummation of any Transaction shall constitute a default, give rise to cancellation rights, or otherwise adversely affect any of the Company’s or the Company Subsidiaries’ rights under any Company Material Contract, except for any such defaults, cancellation rights, or adverse effects that, individually or in the aggregate, would not reasonably be expected to (x) prevent or materially delay beyond the Outside Date the consummation of the Merger or (y) have a Material Adverse Effect; (v) (A) the Company and the Company Subsidiaries have not received or delivered any written claim of force majeure, uncontrollable circumstances, or a similar term, under any Company Material Contract and (B) neither the Company nor any Company Subsidiary nor, to the knowledge of the Company, any other party to any Company Material Contract intends to (x) deliver any written claim of force majeure, uncontrollable circumstances, or a similar term, under any Company Material Contract or result (y) engage in a termination thereof non-scheduled complete or would cause partial shutdown or permit cessation of the acceleration operation of the wireless communication access system related to any Company Material Contract, in each case within 90 days of the date of this Agreement and (vi) the Company and the Company Subsidiaries have not received any written notice from any other party to a Company Material Contract that such other party intends to terminate, not renew, or other changes renegotiate in any material respects the terms of any right or obligation or the loss of any benefit thereundersuch Company Material Contracts. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been The Company has made available to BuyerParent true and complete copies of all Company Material Contracts (other than Contracts with a Governmental Authority if prohibited by the terms thereof), including any amendments, schedules and exhibits thereto.
(c) Except for such matters that would not have a Material Adverse Effect, since January 1, 2018: (i) no Government Contract has been terminated by a Governmental Authority for default, (ii) neither the Company, the Company Subsidiaries nor any of its or their respective Representatives has been debarred or suspended from participation in the award of contracts by any Governmental Authority or has been declared nonresponsible or ineligible for Governmental Authority contracting (it being understood that debarment, suspension and nonresponsibility do not include ineligibility to bid for certain contracts due to generally applicable bidding requirements) and (iii) there has not been any civil fraud, criminal act or bribery (in each case as such concept is defined under the state or federal Laws of the United States) or any other violation of applicable Law with respect to any Government Contract, by the Company or any of the Company Subsidiaries or any director, officer, or employee having primary management or supervisory responsibilities of the Company or any of the Company Subsidiaries. Except for such matters that would not have a Material Adverse Effect, to the knowledge of the Company, (A) as of the date hereof, there are no matters pending that are reasonably likely to lead to the institution of suspension or debarment proceedings against the Company or any of the Company Subsidiaries and (B) neither the Company nor any Company Subsidiary has, since January 1, 2018, been terminated for default under any Government Contract, and no cure notice or show cause notice remains unresolved with respect to any Government Contract.
(d) Except for such matters that would not have a Material Adverse Effect or as set forth on Schedule 3.17(d), the Company and any Company Subsidiary have satisfied all timing requirements under the NY MTA Contracts and are on schedule to satisfy in any future timing requirement under the NY MTA Contacts, including the completion deadlines set forth therein.
(e) The Company has established a datatape (as provided to Merger Sub as of February 9, 2021 in the Data Room (Index 44), “Venue Datatape”) containing the key contractual information with regards to the DAS Venues, Wi-Fi Venues and the DAS Tenants. This Venue Datatape file, dated as of January 28, 2021, is an accurate summary of the information therein in all material respects.
Appears in 1 contract
Material Contracts. Except for the Contracts set out in Section 3.18 of the Purchaser Disclosure Letter, the Purchaser Leases, the Purchaser Employee Contracts, the Purchaser Employee Plans and the Purchaser IP (collectively, the Purchaser Material Contracts), no Purchaser Entity a party to or bound by any Contract material to its business or the ownership of its assets including:
(a) Section 3.10(aany distributor, sales or advertising Contract;
(b) any Contract for the purchase or sale of materials, supplies, equipment or services (i) involving in the Disclosure Schedules lists each of the following Contracts case of any member such Contract, the payment by a Purchaser Entity of more than $25,000 in aggregate in any 12-month period or (ii) which contains minimum purchase commitments or requirements or other terms that restrict or limit the Company Group purchasing or selling ability of a Purchaser Entity;
(such Contractsc) any Contract that expires, together with all Contracts concerning or may be renewed at the occupancy, management or operation option of any Real Property Person other than a Purchaser Entity so as to expire, more than one year after the Execution Date;
(including without limitationd) any Contract for capital expenditures in excess of $25,000 in the aggregate;
(e) any confidentiality, brokerage contracts) listed secrecy or non-disclosure Contract or any Contract limiting the freedom of a Purchaser Entity to engage in any line of business, compete with any Person, solicit any Person, operate its assets at maximum production capacity or otherwise disclosed in Section 3.11(brestricting its ability to carry on its business;
(f) any Contract pursuant to which a Purchaser Entity is a lessor or lessee of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(bany machinery, equipment, motor vehicles, office furniture, fixtures or other personal property;
(g) any Contract with any Affiliate of the Disclosure Schedules, being “Material Contracts”):a Purchaser Entity or any other Person with whom a (h) any Contract relating to grants or other forms of assistance received by a Purchaser Entity from any Governmental Authority;
(i) each any Contract involving aggregate consideration for indebtedness of a Purchaser Entity in excess of $100,000 and which, 25,000 in each case, cannot be cancelled by the member aggregate; or
(j) any Contract made outside of the Company Group without penalty or without more than 90 days’ notice;
(ii) Ordinary Course. True, correct and complete copies of all Purchaser Material Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate have been provided to the acquisition or disposition 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);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10IsoCanMed Shareholders.
(b) Each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms and is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.
Appears in 1 contract
Sources: Share Exchange Agreement
Material Contracts. (a) Section 3.10(a) 3.18 of the Company Disclosure Schedules lists Schedule contains a list of each of the following Contracts contracts (or, in the case of oral contracts, summaries thereof) to which the Company is a party or by which the Company, or any member of the Company Group Company’s assets or properties, is bound or subject (such Contractscollectively, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(ia) each Contract involving any agreement or series of related agreements requiring aggregate consideration in excess payments by or to the Company of more than Fifty Thousand Dollars ($100,000 and which50,000) per year;
(b) any agreement with or for the benefit of any current or former officer or director, in each caseholder of any security, cannot be cancelled by the member employee or consultant of the Company Group without penalty under which the Company has any obligations as of the date hereof and that (i) involves the making of payments exceeding Fifty Thousand Dollars ($50,000) in any year, other than regular salary and bonus amounts, (ii) contains non-competition provisions imposing restrictions on the Company or without more a senior executive officer or key employee of the Company (other than 90 days’ noticethose in favor of the Company), or (iii) involves any severance or termination payments or other similar obligation;
(iic) all Contracts that require any member agreement with any labor union or association representing any employee of the Company;
(d) any agreement for the sale of any of the assets, properties or securities of the Company Group other than in the ordinary course of business or for the grant to any person of any option, right of first refusal or preferential or similar right to purchase its total requirements of any product such assets, properties or service from a third party or that contain “take or pay” provisions;
securities (iii) all Contracts that provide for other than the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwiseRights Agreements);
(ve) all brokerany agreement of surety, distributorguarantee or indemnification, dealerother than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of Fifty Thousand Dollars ($50,000), manufacturer’s representativeother than the security agreement relating to the Notes;
(f) any agreement, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts note or other document relating to which any member or evidencing outstanding indebtedness of the Company Group is a partyfor borrowed money (including capitalized lease obligations) in excess of Fifty Thousand Dollars ($50,000), other than the Notes;
(vig) all employment agreements and Contracts with independent contractors any phantom stock plan or consultants (bonus, incentive or similar arrangements) to which any member of agreement, arrangement or understanding, other than the Company Group is a party Key Contributor Plan and which are not cancellable without material penalty or without more than 90 days’ noticethe Investor Incentive Agreement;
(viih) any agreement involving the assignment, transfer, license (whether as licensee or licensor), pledge or Encumbrance of any Intellectual Property owned or used by the Company, except for Contracts any generally available “off-the-shelf” Software, other than the security agreement relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company GroupNotes;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xi) any Contracts to which distribution or sales representative agreement or agreement appointing any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partyagent; and
(xiiij) any other Contract agreement that is material to the Company Group business, operations or financial condition of the Company. True and not previously disclosed pursuant complete copies of all Material Contracts (and all amendments, waivers or other modifications thereto) have been furnished or made available to this Section 3.10.
(b) Radware. Each Material Contract is valid valid, subsisting, in full force and effect and binding on upon the Company Group member party and, to the knowledge of the Company, the other parties thereto in accordance with its terms and terms. The Company is not in full force and effect. None default (and, to the knowledge of the Company Group member orCompany, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred no condition exists that, with notice or lapse of time or both, would constitute an event of a default by the Company) under any Material Contract, which default would give the other party the right to terminate or modify such Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of accelerate any right or obligation or payment by the loss Company, nor, to the knowledge of the Company, is any benefit thereunderother party to any Material Contract in default thereunder (or, does any condition exist that, with notice or lapse of time or both, would constitute a default by any such party). Complete None of the Material Contracts is currently being renegotiated. The validity, continuation and correct copies effectiveness of each of the Material Contracts will not be materially adversely affected solely as a result of the transactions contemplated by this Agreement. To the knowledge of the Company, no party to any of the Material Contracts has made, asserted or has any defense, setoff or counterclaim under its Material Contract (including all modificationsor has exercised any option granted to it to cancel, amendments terminate or shorten the term of its Material Contract. Notwithstanding anything in this Agreement to the contrary, each party acknowledges and supplements thereto agrees that the consent set forth on Schedule 3.05(a) will not be obtained, and waivers thereunder) have been made available that the Company is not making any representation in relation to Buyerthe requirement of such consent.
Appears in 1 contract
Sources: Merger Agreement (Radware LTD)
Material Contracts. (a) Except for this Agreement, Section 3.10(a(12)(a) of the Company Disclosure Schedules lists each Letter sets forth a true and complete list of the following Contracts of any member of to which the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed its Subsidiaries is a party to or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):bound by:
(i) each any Contract involving aggregate consideration in excess of $100,000 and whichthat requires as at September 30, in each case2019, cannot be cancelled by the member of either (x) annual payments to or from the Company Group without penalty or without and its Subsidiaries of more than 90 days’ notice$250,000 or (y) aggregate payments to or from the Company and its Subsidiaries of more than $1,000,000;
(ii) all Contracts that require any member partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company Group or any of its Subsidiaries or in which the Company or any of its Subsidiaries owns more than a five percent voting, economic or other membership or partnership interest, or any interest valued at more than $1,000,000 without regard to purchase its total requirements of any product percentage voting or service from a third party or that contain “take or pay” provisionseconomic interest;
(iii) all Contracts any Contract that provide for prohibits or restricts the indemnification by any member payment of dividends or distributions in respect of the Company Group Shares or the Company’s capital stock;
(iv) any Contract that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indebtedness (including obligations under any capitalized leases) in excess of $1,000,000 (other than agreements between the Company and any wholly owned Subsidiary or between wholly owned Subsidiaries) or pursuant to which the Company or any of its Subsidiaries guarantees any such indebtedness of any other Person (other than the Company or another wholly owned Subsidiary), (B) materially restricts the Company’s ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset (including Intellectual Property or other intangible assets) of the Company or its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole, or (D) is an interest rate derivative, currency derivative or other hedging contract other than foreign currency cash flow ▇▇▇▇▇▇ entered into in the Ordinary Course and classified as cash flow ▇▇▇▇▇▇ for accounting purposes;
(v) any Contract (other than solely among direct or indirect wholly-owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the assumption deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any Taxasset) in excess of $250,000;
(vi) that is a settlement, environmental conciliation or similar agreement (x) with any Governmental Entity which (A) materially restricts or imposes material obligations upon the Company or its Subsidiaries, or (B) materially disrupts the business of the Company and its Subsidiaries as currently conducted, or (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $100,000 after the date of this Agreement;
(vii) any Contract providing for (A) potentially significant indemnification, except for any such Contract that (x) would not have a Company Material Adverse Effect and (y) was entered into in the Ordinary Course, or (B) potentially significant “earn out” or other Liability contingent payment obligations by the Company or any of its Subsidiaries of any Person;
(ivviii) all Contracts any non-competition Contract or other Contract that relate (v) purports to limit in any material respect either the acquisition type of business in which the Company or any of its Subsidiaries (or, after the Effective Time, the Purchaser or any of its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (w) could require the disposition 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);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member line of business of the Company Group is a party;
or any of its Subsidiaries or, after the Effective Time, the Purchaser or any of its Subsidiaries, (vix) all employment agreements grants “most favoured nation” status that, following the Effective Time, would purport to apply to the Purchaser or any of its Subsidiaries, including the Company and Contracts with independent contractors its Subsidiaries, (y) prohibits or consultants (or similar arrangements) to which any member limits the right of the Company Group is or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, assign, license, develop, distribute or enforce any of their respective Intellectual Property rights or (z) includes “take or pay” requirements or similar provisions obligating a party and which are Person to obtain a minimum quantity of goods or services from another Person, except as would not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the have a Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”)Material Adverse Effect;
(ix) all Contracts any Contract between the Company or any of its Subsidiaries, on the one hand, and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Company Shares of the Company, on the other hand, other than (i) any Company Plan or any other employee or director agreements or arrangement, (ii) transactions conducted on an arm’s length basis, or (iii) any agreements with consideration of less than $50,000;
(x) that limit prohibits or purport restricts the payment of dividends or distributions in respect of the Company Shares;
(xi) any Contract that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than its Subsidiaries to sell, transfer, pledge or otherwise dispose of any member of the Company Group) on the other handmaterial assets or businesses;
(xii) all collective bargaining agreements any Contract that contains a put, call or Contracts with any Union similar right pursuant to which any member of the Company Group is a party; andor any of its Subsidiaries could be required to purchase or sell, as applicable, any material equity interests of any Person or assets;
(xiii) any Contract, other Contract that is material than purchase orders, with a Significant Supplier;
(xiv) any Contract, other than purchase orders and statements of work on the Company’s standard form made available to the Purchaser, with a Significant Customer;
(xv) any Contract for the employment of, or receipt of any services from, any Company Group Employee or Company Contractor providing for annual compensation in excess of $150,000;
(xvi) any employment or consulting Contract which provides for change in control entitlements, or retention payments in connection with a change of control; and
(xvii) any collective bargaining agreement or similar Contract with any labour union, works council, labour organization, economic committee, or other employee representative body applicable to any Company Employee or Company Contractor; (each such Contract described in the foregoing clauses (i) through (xiii), is referred to herein as a “Material Contract”, and not previously disclosed pursuant to this Section 3.10collectively as the “Material Contracts”).
(b) Each Complete and correct copies of each Material Contract have been made available to the Purchaser prior to the date hereof. Each of the Material Contracts is valid and binding on the Company Group member or its Subsidiaries, as the case may be, and, to the Company’s Knowledge, each other party thereto in accordance with its terms thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not have a Company Material Adverse Effect. None To the Company’s Knowledge, there is no default under any such Contracts by the Company, any of its Subsidiaries or any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company, its Subsidiaries, or any other party thereto, in each case except as would not have a Company Material Adverse Effect.
(c) Except as would not reasonably be expected to have a Company Material Adverse Effect, none of the Company Group member or its Subsidiaries or, to Sellerthe Company’s Knowledge, any of the other party thereto parties thereto, is in breach or violation of or in default under, or committed or failed to perform any act which would result in a 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. No event or circumstance has occurred thateach case, with or without notice or lapse of time or both) any Company Material Contract in any material respect, would constitute an event and none of the Company or its Subsidiaries has received or given any notice of default under any Material Contract which remains uncured. To the Company’s Knowledge, there exists no state of facts which after notice or result lapse of time or both would constitute a default under or breach or violation of any Material Contract to perform its obligations thereunder where, in a termination thereof any such case, such default, breach, violation or non-performance has had or would reasonably be expected to have a Company Material Adverse Effect. To the Company’s Knowledge, no Person has challenged in writing the validity or enforceability of any Material Contract.
(d) There are no shareholders or stockholders agreements, registration rights agreements, voting trusts, proxies or similar agreements, arrangements or commitments as to which the Company or any of its Subsidiaries is a party or, to the Company’s Knowledge, with respect to any shares or other equity interests of the Company or any of its Subsidiaries or any other Contract relating to the disposition, voting or dividends with respect to any shares or other equity securities of the Company of any of its Subsidiaries.
(e) Neither the Company nor any of its Subsidiaries has received written notice of any termination of, or, to the Company’s Knowledge, intent to terminate or otherwise fail to fully perform any Material Contract.
(f) Except as set forth in Section (12)(f) of the Company Disclosure Letter, no consent, waiver or approval from other parties to any Material Contract is: (i) required to be obtained by the Company nor any of its Subsidiaries in connection with this Agreement or the consummation by the Company of the Arrangement; or (ii) required in order to maintain the Material Contracts in full force and effect following the consummation of the Arrangement. The consummation of the Arrangement does not and will not allow any Person to exercise any rights, require any notice under or other action by any Person, or cause or permit the termination, cancellation, acceleration or other changes change of any right or obligation or the loss of any benefit thereunder. Complete and correct copies to which the Company or any of each its Subsidiaries is entitled under any Material Contract Contract.
(including g) Neither the Company nor any of its Subsidiaries are a party to or bound by any non-competition agreement or any other agreement, obligation, judgment, injunction, order or decree that purports to (i) limit the manner or the localities in which all modificationsor any material portion of the business of the Company or any of its Subsidiaries are conduction, amendments and supplements thereto and waivers thereunder(ii) have been made available to Buyerlimit any business practice of the Company or any of its Subsidiaries in any material respect, or (iii) restrict any acquisition or disposition of any property by the Company or any of its Subsidiaries in any material respect.
Appears in 1 contract
Material Contracts. (a) Section 3.10(a) of the Disclosure Schedules lists each of the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements Except as set forth in Section 3.12(b) 28 of the Disclosure SchedulesLetter, being “Material Contracts”):
there is no Contract (or amendment thereto) to which Company or any of its Subsidiaries is a party or by which its respective assets are bound that (i) each is material to the business of Company and its Subsidiaries, (ii) if terminated by the other party, would be material to the business of Company and its Subsidiaries as presently conducted, (iii) is a Contract involving aggregate consideration that contains any non-competition, exclusive dealing or non-solicitation obligations limiting or restricting or purporting to limit or restrict in any material way the business of Company and its Subsidiaries as presently conducted, (iv) would reasonably be expected to materially delay or prevent the consummation of the Contemplated Transactions, (v) provides for indemnification in excess of $100,000 50,000 other than indemnification agreements for directors and whichofficers of Company and its Subsidiaries, in each casesuch capacity, cannot be cancelled by the member primary purpose of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require any member of the Company Group which is to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by mergerof its Subsidiaries for a person, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors grants a right of first refusal or consultants (right of first offer or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty right that limits or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport purports to limit the ability of Company or any member of the Company Group its Subsidiaries to compete own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business, (vii) provides for any payments that are conditioned, in any line of business or with any Person whole or in part, on a change of control of Company and its Subsidiaries, (viii) requires the consent of any geographic area other party to the contract to a change of control of Company or during any period of time;
its Subsidiaries, (ix) involves or would reasonably be expected to involve payments in excess of $50,000 annually or $250,000 in the aggregate and that is not terminable within 30 days, (x) any Contracts involves the obligation, or potential obligation, to which any member issue or grant securities of Company or make payments based on the Company Group value of securities of Company, (xi) involves the payment of a royalty, or payment in the nature of a royalty, (xii) is a party that provide for any partnership, joint venture, partnership strategic alliance, or an arrangement for the sharing of profits or proprietary information or other similar agreement or arrangement by or that relates to the formation, creation, operation, management or control of any member partnership, joint venture, strategic alliance or sharing of profits or proprietary information in which the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (its Subsidiaries own more than 5% voting, economic or other membership or interest, or any interest valued at more than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements $50,000 or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material a Lease with respect to the Company Group and not previously disclosed pursuant to this Section 3.10Leased Real Property (the agreements described above collectively being the “Material Contracts”).
(b) Company and its Subsidiaries (i) have performed the material obligations required to be performed by them under the Material Contracts; (ii) are not in material breach of or material default under any Material Contract; and (iii) have not received written notice of any alleged breach of or alleged default under or dispute in connection with any Material Contract or of any intention of any party to any Material Contract to cancel, terminate or otherwise modify or not renew its relationship with Company or its Subsidiaries. Each Material Contract is valid and binding on Company or, to the extent a Subsidiary of Company Group member is a party, such Subsidiary and, to the knowledge of Company, any other party thereto in accordance with its terms thereto, and each Material Contract is in full force and effect. None , subject to limitations with respect to enforcement imposed by Law in connection with bankruptcy or similar proceedings, the equitable power of the Company Group member or, courts to Seller’s Knowledge, any other party thereto is stay proceedings before them and the execution of judgments and to the extent that equitable remedies such as specific performance and injunction are in breach the discretion 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 Contractthe courts from which they are sought. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete A true and correct copies complete copy of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have has been made available to BuyerPurchaser prior to the date hereof in the Data Room.
(c) Other than as disclosed in Section 28(c) of the Disclosure Letter, no consent, waiver or approval from other parties to the Material Contracts is: (i) required to be obtained by the Company or its Subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement or the consummation of the Arrangement; or (ii) required in order to maintain the Material Contracts in full force and effect immediately upon the consummation of the Arrangement, except for such consents, the absence of which would not be reasonably expected to result in, individually or in the aggregate, a Material Adverse Change in respect of Company.
Appears in 1 contract
Sources: Arrangement Agreement (HEXO Corp.)
Material Contracts. (a) Section 3.10(a5.10(a) of the Company Disclosure Schedules Schedule lists each of the following Contracts of any member of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all each Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):Subsidiary:
(i) each Contract involving aggregate consideration in excess of $100,000 any agreement relating to bank debt, obligations for borrowed money or guarantees thereof, interest rate swaps or hedging arrangements, sale and whichleaseback transactions, in each case, cannot be cancelled by the member all Contracts relating to indebtedness (except for Contracts relating to trade payables) or other similar financing transactions of the Company Group without penalty or without more than 90 days’ noticeany Company Subsidiary;
(ii) all Contracts that require any employment, severance, change in control, consulting or other similar agreement or arrangements with (A) any executive officer, other employee of the Company, or member of the Company Group Board, earning an annual base salary or other compensation in excess of $50,000; and (B) independent contractors or consultants (or similar arrangements) to purchase its total requirements which the Company or a Company Subsidiary is a party; in each case, other than those that are terminable by the Company on no more than 30 days’ notice without material liability or financial obligation to the Company or any of any product or service from a third party or that contain “take or pay” provisionsthe Company Subsidiaries;
(iii) all Contracts with any Governmental Entity to which the Company is a party (“Government Contracts”)
(iv) any Contract that provide for contains any provisions purporting to prohibit or restrict the indemnification by Company or any member Company Subsidiary from competing or freely engaging anywhere in the world in any line of business or with any Person or in any area or engaging in any activity or business (including with respect to the development, manufacture, marketing or distribution of their respective products or services), or pursuant to which any benefit or right is required to be given or lost as a result of so competing or engaging, or which would have any such effect on the Purchaser or any of its Affiliates after the consummation of the Merger;
(v) any lease of personal or real property (including any sublease) having a term of one year or more (whether as lessor or a lessee);
(vi) any Contract that (A) grants any “most favored nation” rights, rights of first refusal, rights of first negotiation or similar rights with respect to any material product, service or Intellectual Property, (B) grants any exclusive license or supply or distribution rights or other exclusive rights, or (C) contains any provision that requires the purchase of all or a portion of the Company’s or a Company Subsidiary’s requirements from a given third party, or any other similar provision;
(vii) any mortgage, pledge, conditional sales contract, security agreement, option, or any other similar agreement with respect to any interest of the Company Group or a Company Subsidiary in personal property;
(viii) any stock purchase, stock option, stock bonus, stock ownership, profit sharing, group insurance, severance pay, pension, retirement, savings or other indenture, change of control, welfare, or employee plan or material agreement providing benefits to any current or former employees, officers, or directors of the Company or any Company Subsidiary;
(ix) any Contract to acquire equipment or commitment to make capital expenditures by the Company of $20,000 or more;
(x) any Contract for the sale of any material properties or assets, other than in the ordinary course of business, or for the grant of any preferential right to purchase any such material properties or assets or which requires the Consent of any third party to the transfer and assignment of any such material properties or assets;
(xi) any Contract requiring the Company or any Company Subsidiary to indemnify any Person or the assumption of any Tax, environmental or other Liability of any Person, including indemnification arrangements with any current or former officer, director, employee or agent;
(ivxii) all Contracts that relate any partnership, joint venture, strategic alliance or cooperation agreement (or any Contract similar to the foregoing);
(xiii) any voting or other agreement governing how any shares of capital stock of the Company or any Company Subsidiary shall be voted;
(xiv) except as otherwise identified in Section 5.10(a)(i) through 5.10(a)(xiii) hereof, Contracts of any kind, including broker, distributor, sales, manufacturer’s representative, franchise, agency, sales promotion, marketing, market research, marketing consulting, and advertising Contracts which includes future payments or performance of services or the delivery of items, to which the Company or any Company Subsidiary is a party;
(xv) any power of attorney or similar documents granted by the Company or any Company Subsidiary;
(xvi) any guaranty of any contract not described in Section 5.10(a) of this Agreement;
(xvii) any Contract that provides for payment obligations of the Company or any Company Subsidiary (whether contingent or otherwise) in respect of earn-outs, deferred purchase price arrangements (including, without limitations, indemnification escrow arrangements), or similar arrangements that have arisen in connection with investments in or acquisitions of any Person or the assets, rights, or properties (including Intellectual Property) of any Person;
(xviii) any Contract under which the Company or any Company Subsidiary has an obligation to make (A) an investment in, the acquisition or disposition 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 assets, including Intellectual Property, or otherwise), or (B) a loan to any Person;
(vxix) all brokerany Contract which would prohibit, distributorprevent, dealeror materially delay, manufacturer’s representativeimpede, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member or impair the consummation of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors Merger or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partyrelated transactions; and
(xiiixx) any other Contract that is material to the Company Group and the Company Subsidiaries, taken as a whole, and not previously disclosed pursuant to this Section 3.105.10(a).
(b) Each Material Contract is valid and binding on of the Company Group member party thereto Contracts referenced in accordance with its terms and is in full force and effect. None Section 5.10(a) of the Company Group member orDisclosure Schedule, together with all Contracts concerning the ownership, occupancy, management, or operation of any Real Property (including without limitation, Leases and brokerage contracts) listed or otherwise disclosed in Sections 5.12(b) or 5.12(c) of the Company Disclosure Schedule and all Company IP Agreements shall be referred to herein as “Company Material Contracts”. Neither the Company nor any Company Subsidiary is in material breach or violation of, or is in default under any Company Material Contract, nor, to Seller’s Knowledgethe Knowledge of the Company, are any other party thereto is parties to such agreements in breach of default, and no act 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. No event or circumstance omission has occurred thatwhich, with notice or lapse of time or both, would constitute an event of a material breach, violation, or default under any Material Contract term or result in a termination thereof or would cause or permit the acceleration or other changes provision of any right such contract or obligation or the loss of any benefit thereunderagreement. Complete True and correct complete copies of each all Company Material Contract Contracts (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available furnished to Buyerthe Purchaser prior to the date of this Agreement. Each Company Material Contract is valid, legally binding, enforceable (subject to the Bankruptcy and Equity Exception) and is in full force and effect.
Appears in 1 contract
Material Contracts. (a) Except as set forth on Section 3.10(a3.15(a) of the Company Disclosure Schedules lists each Schedules, as of the following Contracts date of any this Agreement, no member of the Company Group is a party to, nor are any of their respective properties or assets are bound by, any Contract of the following nature (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in as are required to be set forth on Section 3.11(b3.15(a) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being collectively, the “Material Contracts”):
(i) each Contract involving aggregate consideration in excess Contracts containing a covenant limiting the right of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements engage in any line of business in any geographic area or to compete with any Person that materially limits such Business, taken as a whole, including any non-compete agreements or agreements limiting the ability of any product of the members of the Company Group from soliciting customers or service employees;
(ii) Contracts under which any member of the Company Group has borrowed any money or incurred any Indebtedness from a third party any Person (other than any Company or that contain “take or pay” provisionsCompany Subsidiary);
(iii) each repurchase agreement or similar Contract that a member of the Company Group uses in its business (or has any amounts outstanding under) or has entered into since January 1, 2018;
(iv) each Contract that constitutes a loan to any Person (other than a wholly owned Company Subsidiary) by a member of the Company Group in an amount in excess of $5,000,000;
(v) each management or similar Contract between or among a member of the Company Group, on the one hand, and a third party manager of such member of the Company Group on the other hand;
(vi) Contracts that require the future acquisition from another Person or future disposition to another Person of assets, properties or capital stock or other equity interest of another Person and other Contracts, in each case that relate to an acquisition or similar transaction which contain indemnification, “earn-out” or other continuing obligations with respect to any member of the Company Group, or any merger or business combination with respect to any member of the Company Group;
(vii) Contracts relating to the formation, creation, operation, management or control of any partnership, limited liability company, joint venture, strategic alliance or similar Contract with a third party;
(viii) Contracts for the employment of, or the provision of services by, any officer, individual employee or other natural Person on a full time, part-time or other basis providing annual compensation in excess of $200,000, other than Contracts that are terminable on thirty (30) days’ or less notice without penalty or that do not provide severance or other obligations in connection with any termination;
(ix) Contracts not otherwise described in any other subsection of this Section 3.15(a) pursuant to which a member of the Company Group is obligated to pay or entitled to receive payments in excess of $150,000 in any twelve- (12) month period, other than Mortgages;
(x) all Contracts requiring or providing for any capital expenditure in excess of $200,000;
(xi) any Real Property Lease that provide provides for payments to or by a member of the indemnification Company Group in excess of $50,000 in any twelve- (12) month period;
(xii) any interest rate, currency, futures, options, hedging, or other derivative Contracts;
(xiii) any Contract relating to the settlement of any administrative or judicial proceedings or Actions entered into by any member of the Company Group of any Person or in the assumption of any Tax, environmental or other Liability of any Person;
last twelve (iv12) 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 (whether months providing for payment by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors in excess of $150,000 individually or consultants (or similar arrangements) to which imposing any material non-monetary obligations on any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeGroup;
(viixiv) except any Contract (A) providing for Contracts the grant of any preferential rights to purchase or lease any asset of the Company Group; or (B) providing for any right (exclusive or non-exclusive) to sell or distribute, or otherwise relating to trade receivablesthe sale or distribution of, all Contracts relating to indebtedness any asset of a member of the Company Group;
(including, without limitation, guaranteesxv) any Contract with any Related Party of any member of the Company Group;
(viiixvi) all Contracts with any Governmental Authority Contract that requires a consent to which or otherwise contains a provision relating to a “change of control,” or that would prohibit or materially delay the consummation of the Mergers or the other Transactions;
(xvii) any Contract relating in whole or in part to any material Intellectual Property;
(xviii) any Contract that results in any Person holding a power of attorney from any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport relates to limit the ability of any member of the Company Group to compete in or any line of business or with any Person or in any geographic area or during any period of timetheir respective businesses;
(xxix) any Contracts obligation to which register any security interest of a member of the Company Group is a party that provide with any Governmental Authority; and
(xx) Other than the Company Organizational Documents and the Management Company Organizational Documents, Contracts providing for any joint venture, partnership or similar arrangement indemnification by any member of the Company Group;
(xi) all Contracts between or among , except for any such Contract that is entered into in the ordinary course of business and is not material to the member of the Company Group on or the one hand Business taken as a whole.
(b) The Company Group has made available to Trinity and Seller or PubCo true and complete copies of all Material Contracts, including any Affiliate amendments thereto. Each Material Contract is a valid and binding agreement of Seller (other than any the applicable member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on the Company Group member party thereto in accordance with its terms , and is in full force and effecteffect except as such enforceability may be limited by the Enforceability Exceptions and except as would not reasonably be expected to be material to the Company Group, taken as a whole. None Except as would not reasonably be expected to be material to the Company Group, taken as a whole, (i) no member of the Company Group member or, to Seller’s Knowledgethe Knowledge of the Companies, any other party thereto thereto, is in (with or without the lapse of time or the giving of notice, or both) or has received written notice of any breach of or default under any such Material Contract and (or is alleged to be in breach ii) no member of or default under), or the Company Group has provided or received any written notice of any intention to terminate, terminate or otherwise materially modify the terms of any Material Contract. No Contract and no event or circumstance circumstances has occurred that, with or without notice or lapse of time or both, would constitute an event of a default under any Material Contract thereunder or result in or give any Person a termination thereof or would cause or permit the right to acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyerearly termination thereof.
Appears in 1 contract
Material Contracts. (a) Except for this Agreement and for the Contracts disclosed in the Filed Company SEC Documents, Section 3.10(a4.13(a) of the Company Disclosure Schedules lists each Letter sets forth a true and complete list, as of the following Contracts date of any member of this Agreement, and the Company Group (such Contractshas made available to Parent true and complete copies, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):of:
(i) each Contract involving aggregate consideration 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 Contract to which the Company or any Company Subsidiary is a party that (A) limits or purports to limit the freedom or otherwise restricts or purports to restrict the ability of the Company or any Company Subsidiary to compete in excess any business or any line of $100,000 business or with any other Person in any geographical area, (B) requires or purports to require the Company or any Company Subsidiary to provide any “most favored nations” terms or conditions (including with respect to pricing) with any other Person, (C) provides or purports to provide for “exclusivity” rights, “single source” supply or any similar requirement to any other Person or (D) provides preferential rights or rights of first or last offer or refusal to any other Person;
(iii) each Contract under which the Company or any Company Subsidiary licenses or sublicenses, covenants not to sue under or otherwise grants rights with respect to Intellectual Property from or to any third party (other than (1) licenses or sublicenses of generally commercially available off-the-shelf software programs, (2) licenses for “open source” software and which(3) nonexclusive licenses of Intellectual Property under research, development, manufacturing and similar Contracts with other Persons where such license is granted solely to enable the performance by such Person of obligations under such Contract);
(iv) each partnership, joint venture, strategic alliance, co-promotion, co-development or similar Contract, and each material collaboration Contract, in each case, cannot be cancelled to which the Company or any Company Subsidiary is a party to or bound by such Contract;
(v) each Contract that the Company or any Company Subsidiary is a party to, or bound by, pursuant to which the Company or any Company Subsidiary has “earn-out,” installment, milestone, royalty or similar contingent payment obligations, in each case, that could result in payments exceeding $250,000;
(vi) each Contract that constitutes a commitment relating to Indebtedness for borrowed money or the deferred purchase price of property by the member Company or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in excess of $500,000, other than Contracts solely between or among the Company or any Company Subsidiary;
(vii) each Contract under which the Company or any Company Subsidiary is the landlord, sublandlord, tenant, subtenant or occupant with respect to any material real property leased, subleased, licensed or otherwise occupied;
(viii) other than with respect to an entity that is wholly owned by the Company or any of the Company Group without penalty Subsidiaries, each partnership, joint venture or without more than 90 days’ noticeoperating or limited liability company agreement, in which the Company or any Company Subsidiaries holds an interest;
(iiix) all Contracts each Contract that is a settlement, conciliation or similar Contract that would require the Company or any member of the Company Group Subsidiaries to purchase its total requirements pay consideration of any product or service from a third party more than $500,000 after the date of this Agreement or that contain “take or pay” provisionscontains continuing restrictions on the business and operations of the Company and the Company Subsidiaries that are material to the business of the Company and the Company Subsidiaries, taken as a whole;
(iiix) all Contracts each Contract that provide for requires by its terms the indemnification payment or delivery of cash or other consideration by any member of or to the Company Group or any Company Subsidiary in an aggregate amount expected to exceed $500,000 over the remaining term of any Person or the assumption of any Tax, environmental or other Liability of any Personsuch Contract;
(ivxi) all Contracts each Contract that relate requires the Company or any Company Subsidiary to make any future capital investment or capital expenditure outside the ordinary course of business and in excess of $250,000 individually or $500,000 in the aggregate;
(xii) each Contract entered into since January 1, 2019 that (A) relates to the acquisition or disposition by the Company or any Company Subsidiaries of any business, a material amount of stock business or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) with a value expected as of the date of such Contract to be in excess of $500,000 or (B) pursuant to which the Company or any Company Subsidiaries acquired or will acquire, or sold or will sell, any material ownership interest in any other Person or other business enterprise other than any Company Subsidiary, in each case, under which the Company or any Company Subsidiaries has obligations remaining to be performed as of the date hereof;
(xiii) each Contract that is with (A) each of the ten (10) largest customers of the Company and the Company Subsidiaries, taken as a whole (the “Material Customers”) and (B) each of the ten (10) largest vendors of the Company and the Company Subsidiaries, taken as a whole (the “Material Vendors”), in each case by dollar amount for the fiscal year ended December 31, 2021;
(xiv) each Contract that provides for (A) indemnification of any officer, director or employee by the Company, other than Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Parent or (B) accelerated vesting in connection with a change of control, including the Transactions (including as a result of any termination of employment following a change of control, including the Transactions);
(vxv) all brokereach collective bargaining agreement or other Contract with any labor union, distributorlabor organization, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a partyor works council;
(vixvi) all employment agreements and Contracts with independent contractors or consultants (any Contract that is a settlement, conciliation or similar arrangements) agreement with any Governmental Entity or pursuant to which any member of the Company Group is or a party and which are not cancellable without Subsidiary will have any material penalty or without more than 90 days’ noticeoutstanding obligation after the date of this Agreement;
(viixvii) except for Contracts relating each Contract with an affiliate or other Person that would be required to trade receivables, all Contracts relating to indebtedness (including, without limitation, guaranteesbe disclosed under Item 404(a) of any member of Regulation S-K promulgated under the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partyExchange Act; and
(xiiixviii) any other Contract, agreement or understanding to enter into any of the foregoing. Each such Contract that is material to of the type described (whether or not disclosed in Section 4.13(a) of the Company Group and not previously disclosed pursuant Disclosure Letter) in clauses (i) through (xviii) above is referred to this Section 3.10herein as a “Company Specified Contract.”
(b) Each Material Contract As of the date of this Agreement, each of the Company Specified Contracts is valid valid, binding and binding enforceable on the Company Group member or the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto in accordance with its terms thereto, and is in full force and effecteffect (i) except for such failures to be valid, binding or enforceable or to be in full force and effect as would not reasonably be expected to, individually or in the aggregate, (A) be material to the Company or (B) have a Company Impairment Effect and (ii) except insofar as such enforceability may be limited by the Bankruptcy and Equity Exceptions. None As of the Company Group member ordate of this Agreement, to Seller’s Knowledgethe Knowledge of the Company, there is no default, breach, failure to timely perform or deliver or violation under any Company Specified Contract by the Company or the Company Subsidiaries or any other party thereto is in breach thereto, and, to the Knowledge of or default under (or is alleged to be in breach of or default under)the Company, or has provided or received any notice of any intention to terminate, any Material Contract. No no event or circumstance has occurred that, that (with or without notice or lapse of time time, or both) would permit any other Person thereto to cancel or terminate such Company Specified Contract thereunder, in each case except as set forth in Section 4.13(b) of the Company Disclosure Letter. The consummation of the Transactions will not result in any material payment or payments becoming due from the Company, any Company Subsidiary or any other party thereto, in each case except as would constitute an event not reasonably be expected to, individually or in the aggregate, be material to the Company.
(c) Except as set forth in Section 4.13(c) of default under the Company Disclosure Letter, since the date of the Company Balance Sheet, the Company has not received any written or, to the Knowledge of the Company, oral notice from or on behalf of any Material Contract Customer indicating that such Material Customer intends to terminate or result in a termination thereof or would cause or permit the acceleration or other changes not renew, any current term of any right Company Specified Contract with such Material Customer, except as would not reasonably be expected to, individually or obligation in the aggregate, be material to the Company.
(d) Except as set forth in Section 4.13(d) of the Company Disclosure Letter, since the date of the Company Balance Sheet, the Company has not received any written or, to the Knowledge of the Company, oral notice from, or on behalf of, any Collaboration Partner indicating that such Collaboration Partner intends to terminate, or not renew, any Company Specified Contract with such Collaboration Partner.
(e) Since the loss date of the Company Balance Sheet, the Company has not received any written or, to the Knowledge of the Company, oral notice from or on behalf of any benefit thereunder. Complete and correct copies of each Material Vendor indicating that such Material Vendor intends to terminate, or not renew, any Company Specified Contract (including all modificationswith such Material Vendor, amendments and supplements thereto and waivers thereunder) have been made available except as would not reasonably be expect to, individually or in the aggregate, be material to Buyerthe Company.
Appears in 1 contract
Material Contracts. (a) Section 3.10(aOther than Company Leases and contracts, agreements or understandings (whether written or oral) of the Disclosure Schedules lists each of the following Contracts of any member of (1) filed as exhibits to the Company Group SEC Documents filed prior to the date hereof or (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts2) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b3.19(a) of the Company Disclosure SchedulesLetter (each such contract, being agreement or understanding, a “Company Material Contract” and, collectively, the “Company Material Contracts”):), as of the date of this Agreement neither the Company nor any Company Subsidiary is a party to or bound by any contract, agreement or understanding (whether written or oral) that:
(i) each Contract involving aggregate consideration in excess is required to be filed as an exhibit to the Company’s Annual Report on Form 10-K on or after January 1, 2016 pursuant to Item 601(b)(2), (4), (9) or (10) of $100,000 and which, in each case, cannot be cancelled Regulation S-K promulgated by the member of SEC or required to be disclosed by the Company Group without penalty or without more than 90 days’ noticein a Current Report on Form 8-K;
(ii) all Contracts that require any member of obligates the Company Group or any Company Subsidiary to purchase its total requirements make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $1,000,000 and is not cancelable within sixty (60) days without material penalty to the Company or any product Company Subsidiary, except for any Company Lease or service from a third party or that contain “take or pay” provisionsany ground lease affecting any Company Property;
(iii) all Contracts contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that provide for restricts the indemnification by any member business of the Company Group or any Company Subsidiary, contains a right of first offer, a right of first refusal or similar right, or that otherwise restricts the lines of business conducted by the Company or any Person Company Subsidiary or the assumption of geographic area in which the Company or any Tax, environmental or other Liability of any PersonCompany Subsidiary may conduct business;
(iv) all Contracts that relate to is an agreement which obligates the acquisition or disposition of any business, a material amount of stock or assets of any other Person Company or any real property Company Subsidiary to indemnify any past or present directors, officers, trustees, employees and agents of the Company or any Company Subsidiary pursuant to which the Company or a Company Subsidiary is the indemnitor (whether by merger, sale other than the organizational documents of stock, sale of assets or otherwiseCompany and the Company Subsidiaries);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member constitutes an Indebtedness obligation of the Company Group is or any Company Subsidiary with a partyprincipal amount as of the date hereof greater than $2,000,000;
(vi) all employment agreements and Contracts requires the Company or any Company Subsidiary to dispose of or acquire assets or properties (other than in connection with independent contractors the expiration of a Company Lease or consultants (a ground lease affecting a Company Property) with a fair market value in excess of $1,000,000, or involves any pending or contemplated merger, consolidation or similar arrangements) to which business combination transaction, except for any member of the Company Group is a party and which are not cancellable without material penalty Lease or without more than 90 days’ noticeany ground lease affecting any Company Property;
(vii) except for Contracts constitutes a Swap Contract relating to trade receivablesa hedging transaction which has a notional amount in excess of $1,000,000, all Contracts relating to indebtedness (includingor the Swap Termination Value of which exceeds $1,000,000, without limitation, guarantees) of any member of either singly or in the Company Groupaggregate;
(viii) all Contracts sets forth the operational terms of a joint venture, partnership or limited liability company with any Governmental Authority to which any a Third Party member or strategic alliance of the Company Group is a party (“Government Contracts”)or any Company Subsidiary;
(ix) all Contracts that limit or purport constitutes a loan to limit the ability of any member of Person (other than a wholly owned Company Subsidiary) by the Company Group or any Company Subsidiary (other than advances made pursuant to compete any Company Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in any line connection with a Company Lease with respect to the development, construction, or equipping of business Company Properties or with any Person the funding of improvements to Company Properties) in an amount in excess of $1,000,000, either singly or in any geographic area or during any period of timethe aggregate;
(x) any Contracts agreement with a Governmental Authority that requires that any portion of a property be leased to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Grouppersons meeting criteria set forth in such agreement;
(xi) all Contracts between any contract for the employment or among engagement of any member person on a full-time, part-time, or consulting basis, or for the engagement of any independent contractor, that cannot be terminated on an at-will basis without penalty or liability to the Company or any of the Company Group on the one hand Subsidiaries and Seller or any Affiliate that provides for annual payments in excess of Seller (other than any member of the Company Group) on the other hand$250,000;
(xii) all any collective bargaining agreements agreement, neutrality agreement, or Contracts other labor agreement of any kind with a union, works council, or other labor organization with respect to any Union to which any member of the employees of the Company Group is a party; andor any of the Company Subsidiaries;
(xiii) any other Contract that is material contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees provide services to the Company Group and not previously disclosed or any of the Company Subsidiaries.
(xiv) contains any contract of sale, option to sell, right of first refusal, right of first offer or any other contractual right to sell or dispose of, by any means, any Company Properties, any investment in any entity, the Company or any Company Subsidiary; or
(xv) contains any restriction or prohibition on the sale or transfer of any Company Property or any Negative Pledge (other than pursuant to this Section 3.10any Existing Company Loan to be repaid, prepaid, defeased or otherwise extinguished at Closing).
(b) Each Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract is valid legal, valid, binding and binding enforceable on the Company Group member and each Company Subsidiary that is a party thereto in accordance with its terms and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, subject to the Remedies Exception. None Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the Knowledge of the Company Group member orCompany, to Seller’s Knowledge, any each other party thereto is in breach of or default under (or is alleged has performed all obligations required to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default performed by it under any such Company Material Contract or result prior to the date hereof except as set forth in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.Section 3.19(b)
Appears in 1 contract
Material Contracts. (a) Section 3.10(a3.09(a) of the Disclosure Schedules lists each of the following Material Contracts of any member Company and the Acquired Companies as of the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):date hereof:
(i) each Contract of Company and/or any Acquired Company involving aggregate consideration in excess of $100,000 3,000,000 and which, in each case, cannot be cancelled by the member of the Company Group or such Acquired Company without penalty or without more than 90 days’ notice;
(ii) all Contracts that require Company or any member of the Acquired Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by Company or any member of the Acquired Company Group of any Person or the assumption of any Tax, environmental or other Liability of any PersonPerson other than indemnification (x) related to Intellectual Property or (y) with respect to such Contract that is applicable solely to breaches of such Contract by a party to such Contract;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock stock, membership interests or assets outside the ordinary course of business of any other Person or any real property (whether by merger, sale of stock, sale of membership interests, sale of assets or otherwise)) for an aggregate consideration in excess of $10,000,000;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) for borrowed monies or guarantees thereof of Company or any member Acquired Company for amount in excess of the Company Group$1,000,000;
(viiivi) all Contracts with any Governmental Authority to which Company or any member of the Acquired Company Group is a party for products or services in an amount of more than $5,000,000 (“Government Contracts”);
(ixvii) all Contracts that limit or purport to limit the ability of Company or any member of the Acquired Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xviii) other than joint selling or joint marketing arrangements, any Contracts to which Company or any member of the Acquired Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Groupor such Acquired Company;
(xiix) all Contracts between or among Company or any member of the Company Group Acquired Companies on the one hand and Seller Company Member, or any Affiliate of Seller (other than any member of the Company Group) Member, on the other hand;; and
(xiix) all collective bargaining agreements or Contracts with any Union to which Company or any member of the Acquired Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on Company or the Acquired Company Group member which is a party thereto to such Material Contract in accordance with its terms and is in full force and effect, except for any Material Contract expired after the date hereof in accordance with its terms. None of Company or the Company Group member Acquired Companies or, to SellerCompany Member’s Knowledge, any other party thereto is in material breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminateterminate (prior to the expiration of the term of the applicable Contract), any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof (other than termination as a result of the expiration of the term of the applicable Material Contract) or 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 written Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) in effect as of the date hereof have been made available to BuyerParent (or its counsel).
Appears in 1 contract
Material Contracts. (a) Section 3.10(a2.9(a) of the Seller Disclosure Schedules lists each Schedule contains a true and complete list of the following Contracts of any member in effect as of the date hereof to which the Company Group is a party (such Contractsother than any Reinsurance Agreements) (collectively, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) any Contract evidencing Indebtedness of the Company, or under which the Company has issued any note, bond, indenture, mortgage, security interest or other evidence of Indebtedness, or has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person (other than the Company), in each Contract involving aggregate consideration case in principal amount in excess of $100,000 100,000;
(ii) any Contract that relates to any material interest rate, derivatives or hedging transactions (other than exchange-traded interest rate, derivative or hedging transactions in the ordinary course);
(iii) any Contract pursuant to which the Company (A) has acquired the right to use any material Company Intellectual Property, other than Off-the-Shelf Software or (B) has granted to any third party any license to use, covenant not to sue or similar right to any Company Intellectual Property, other than non-exclusive licenses that are incidental to the transaction contemplated in the Contract;
(iv) any agreement for capital expenditures or the acquisition or construction of fixed assets for the benefit and whichuse of the Company, requiring payments by the Company in excess of $25,000 for the fiscal year ended December 31, 2022 or any fiscal year thereafter;
(v) any Contract containing a covenant that impairs the ability of the Company or any of its employees to freely conduct the Business in any geographic area or any material line of business (including covenants not to compete, covenants which limit the ability of any Person to provide material products or services to the Company “most favored nation” provisions, exclusivity covenants or other such terms), in each case, except for Contracts that limit the ability of the Company to solicit the employment of, or hire individuals employed by, other Persons;
(vi) the Lease and any other lease, sublease or other similar agreement under which the Company is the lessee or sublessee of any real property;
(vii) any agency, broker, selling, marketing or similar Contract with any Producer under which such Producer received aggregate payments from the Company in excess of $50,000 for the fiscal year ended December 31, 2022;
(viii) any Intercompany Agreement (other than any Intercompany Reinsurance Agreement);
(ix) any Contract (other than a Reinsurance Agreement) pursuant to which the Company has future liabilities or payments in excess of $25,000 per annum that cannot be cancelled by on ninety (90) days’ prior notice for a cost of less than $25,000 and any Contract (other than a Reinsurance Agreement) pursuant to which the member Company is entitled to receive more than $25,000 per annum;
(x) any material administrative services agreement, investment management agreement or similar agreement under which the Company provides or receives services;
(xi) any partnership, joint venture or limited liability company Contract or similar Contract relating to the operation, formation, control or management of any partnership or joint venture in respect of the Business;
(xii) any (A) offer letter, employment agreement, consulting agreements, or similar agreement with any individual for employment or consulting services to, for, or on behalf of, the Company that provides for annual base compensation in excess of $90,000; and (B) non-competition, non-solicitation, or other restrictive covenant agreement between the Seller or its Affiliates and employees, consultants, or independent contractors of the Company Group without penalty or without more than 90 days’ noticeearning annual base compensation in excess of $90,000;
(iixiii) all Contracts any Contract or Order with a Governmental Entity that require any member of is binding on the Company Group or its properties or assets, other than any such Order that is applicable to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisionsall similarly licensed insurers under the Insurance Act;
(iiixiv) all Contracts that provide for the indemnification by any member Contract granting an Encumbrance upon any property or any other asset of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any PersonCompany;
(ivxv) all Contracts any Contract that relate relates to the acquisition or disposition of any business, company or business or a material amount portion of stock or the assets of any other Person company or any real property business (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts pursuant to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors has material obligations remaining to be performed or consultants (or similar arrangements) to which any member liabilities continuing after the date of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) any Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by any member of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a partythis Agreement; and
(xiiixvi) any other Contract that is material legally enforceable commitment or obligation to enter into any agreement of the Company Group and not previously disclosed pursuant to type described in subsections (i) through (xv) of this Section 3.102.9(a).
(b) Each Except as set forth in Section 2.9(b) of the Seller Disclosure Schedule, (i) each Material Contract is constitutes a valid and binding on agreement of the Company Group member and, to the Knowledge of the Seller, each other party thereto (subject in accordance with its terms each case to the Enforceability Exceptions), and is in full force and effect. None , and is enforceable in accordance with its terms against the Company and, to the Knowledge of the Seller, each other party thereto, (ii) neither the Company Group member ornor, to the Knowledge of the Seller’s Knowledge, any other party thereto is (with or without notice or lapse of time or both) in default or breach of or default in any material respect under (or is alleged to be in breach of or default under)the terms of, or since January 1, 2021 has provided or received any notice of any intention to terminate, any such Material Contract. No , and, to the Knowledge of the Seller, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract thereunder or result in a termination thereof or would cause or permit the acceleration of or other changes of or to any right or obligation or the loss of any benefit thereunder. Complete thereunder and (iii) the Seller has made available to the Buyer true and correct copies of each Material Contract at least one (including all modifications1) Business Day prior to the date of this Agreement, amendments and supplements thereto and waivers thereunder) have been made available to Buyereach as amended as of the date hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (James River Group Holdings, Ltd.)
Material Contracts. (a) Except for Contracts filed as exhibits to the Company SEC Reports or as disclosed in Section 3.10(a3.15(a) of the Company Disclosure Schedules lists each Letter, as of the following Contracts date of this Agreement, (i) neither the Company nor any member of its Subsidiaries is a party to, and (ii) none of the Company, any of its Subsidiaries or any of their respective properties, assets or Rights are bound by (in each case, other than any Company Group (such Benefit Plan, any Recorded Music Contracts and any Music Publishing Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) any Contract that is or would be required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act or disclosed by the Company in a Current Report on Form 8-K;
(ii) any limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture that is material to the Business of the Company and its Subsidiaries, taken as a whole, other than any such limited liability company, partnership or joint venture that is a Subsidiary of the Company;
(iii) any Contract containing a covenant limiting the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business in any geographic area or to compete with any Person that materially limits the conduct of the Businesses, taken as a whole, as presently conducted;
(iv) any Contract under which (A) any Person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed outstanding Liabilities of the Company or any of its Subsidiaries or (B) the Company or any Subsidiary has directly or indirectly guaranteed outstanding Liabilities of any Person (other than the Company or any Subsidiary) (in each Contract involving aggregate consideration in excess case of (A) and (B), which guarantee obligation exceeds $100,000 and which2,000,000, other than, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice;
(ii) all Contracts that require any member of the Company Group to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide endorsements for the indemnification by any member purpose of collection in the Company Group ordinary course of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to any Contract under which any member of the Company Group or the applicable Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness to, any Person (other than the Company or any of its Subsidiaries), in any such case which the outstanding balance, individually, is a partyin excess of $2,000,000;
(vi) all employment agreements and Contracts with independent contractors or consultants any Contract (or similar arrangements) to which any member other than among consolidated Subsidiaries of the Company Group is a party and which are not cancellable without material penalty Company) relating to any interest rate, currency or without more than 90 days’ noticecommodity derivatives or hedging transactions;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of Contract under which the Company Groupor the applicable Subsidiary, directly or indirectly, has agreed to make after the date hereof any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries and other than extensions of trade credit in the ordinary course of business), in any such case which, individually, is in excess of $2,000,000;
(viii) all Contracts with any Governmental Authority Contract that obligates the Company or the applicable Subsidiary to which make any member capital commitment or capital expenditure (in each case, including pursuant to any joint venture, but not including to any of the Company Group is a party (“Government Contracts”)Company’s wholly-owned Subsidiaries in the ordinary course of business) in excess of $2,000,000;
(ix) all Contracts any Contract that limit or purport to limit prohibits the ability pledging of any member capital stock of the Company Group or any Subsidiary of the Company or prohibits the issuance of guarantees by any Subsidiary of the Company, in each case, other than pursuant to compete in any line of business or with any Person or in any geographic area or during any period of time;joint venture; and
(x) any Contracts Contract that requires the future acquisition from another Person or future disposition to which any member another Person of the Company Group is a party that provide for any joint venture, partnership assets or similar arrangement by any member capital stock or other equity interest of the Company Group;
(xi) all Contracts between or among any member of the Company Group on the one hand another Person and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material relates to an acquisition or similar transaction which contain indemnities or “earn-out” obligations with respect to the Company Group or any of its Subsidiaries, in any such case, after the date hereof with a value in excess of $2,000,000. Each Contract of the type described in clauses (i) through (x) above, together with (I) agreements relating to the Common Law Trademarks and not previously disclosed pursuant (II) the Sony Music Agreements, is referred to this Section 3.10herein as a “Material Contract”.
(b) Each Except as would not have a Company Material Adverse Effect: (i) each Material Contract is is, subject to the Enforceability Exceptions, a valid and binding on agreement of the Company Group member or its applicable Subsidiary and, to the Knowledge of the Company, each other party thereto in accordance with its terms thereto, and is in full force and effect. None effect and enforceable against the Company or its Subsidiary and, to the Knowledge of the Company Group member Company, each other party thereto, in accordance with its terms, (ii) none of the Company, its applicable Subsidiary or, to Seller’s Knowledgethe Knowledge of the Company, any other party thereto thereto, is in breach of or default under any such Material Contract, (iii) to the Knowledge of the Company, no party to any Material Contract has committed or is alleged failed to be perform any act under and no event has occurred which, with or without notice, lapse of time or both, would constitute a default, require consent or result in breach the loss of a material benefit, give rise to any right of termination, amendment, acceleration or default under)cancellation, under the provisions of such Material Contract, and (iv) neither the Company nor any of its Subsidiaries has received written notice from any other party to a Material Contract (A) of the existence of any event, or has provided or received any notice of any intention to terminatecondition which constitutes, any Material Contract. No event or circumstance has occurred thator, with after notice or lapse of time or both, would constitute an event will constitute, a default on the part of default the Company or any of its Subsidiaries under any Material Contract Contract, or result in a termination thereof (B) with respect to the termination, non-renewal or would cause renegotiation of the terms of, and, to the Knowledge of the Company, no such other party intends to terminate, not renew, or permit renegotiate the acceleration or other changes of terms of, any right or obligation or the loss of any benefit thereunderMaterial Contract. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been The Company has made available to BuyerParent true and complete copies of all Material Contracts in effect as of the date hereof, including any material amendments thereto.
(c) The aggregate indebtedness for borrowed money that is outstanding or may be incurred under Contracts that would be required to be listed under Section 3.15(a)(v) of the Company Disclosure Letter if Section 3.15(a)(v) did not contain an exception for Contracts that relate to obligations for borrowed money that do not exceed $2,000,000 but are not listed under such section of the Company Disclosure Letter is not in excess of $5,000,000.
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Material Contracts. (a) Section 3.10(aSchedule 3.9(a) of the Company Entities Disclosure Schedules lists each Schedule sets forth a list of the following subsisting Contracts of any member as of the date hereof to which any Company Group Entity is a party to or by which it is bound (such Contractscollectively, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) Contracts with each Contract involving aggregate consideration current officer, director, or current employee of any Company Entity, who receives annual base cash compensation (excluding bonus and other benefits) in excess of $100,000 and which, in each case, cannot be cancelled by the member of the Company Group without penalty or without more than 90 days’ notice100,000;
(ii) all collective bargaining Contracts that require or Contracts with any member of the Company Group to purchase its total requirements of any product labor organization, union, works council, or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(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 (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts association to which any member of the Company Group Entity is a party;
(iii) Contracts with any officer, director, employee, consultant or equityholder of any Company Entity (other than Contracts covered by clause (i) above);
(iv) Contracts with any employee of any Company Entity that provide for severance, termination or similar payments (other than Contracts covered by clause (i) above) or change in control, retention, or similar payments contingent upon or triggered by the consummation of the Transactions;
(v) Contracts relating to any completed business acquisition by any Company Entity under which any Company Entity has any outstanding obligations, rights, or liabilities;
(vi) all employment agreements and to the extent not otherwise disclosed pursuant to this Section 3.9(a), Contracts with independent contractors for or consultants (relating to the incurrence, guaranty or similar arrangements) to which existence of any member of the items set forth in clauses (a), (b) or (c) of the definition of Indebtedness (including guarantees thereof), or the making of any material loans to another Person, other than as may be among the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ noticeEntities;
(vii) except Contracts which involve payment of more than $50,000 in the aggregate for Contracts relating any individual Contract for fiscal year 2022, or that are expected to trade receivablesinvolve the payment of more than $50,000 in the aggregate for any individual Contract for fiscal year 2022, all Contracts relating to indebtedness in each case, that are not terminable by any Company Entity without penalty on sixty (including, without limitation, guarantees60) of any member of the Company Groupdays’ or less notice;
(viii) all Contracts with any Governmental Authority to which any member other than as expressly provided for in the authorized annual budget of the Company Group is a party (“Government Contracts”)provided to the Purchaser prior to the date of this Agreement or as otherwise consented to by Purchaser in advance, each Contract requiring capital expenditures or the acquisition of fixed assets, in any case involving future payments by any Company Entities in excess of $50,000, individually or in the aggregate;
(ix) all Contracts that limit or purport to limit the ability (A) containing covenants of any member Company Entity prohibiting or limiting the right of the any Company Group Entity to compete in any line of business, including development, marketing, sale or distribution, or prohibiting or restricting its ability to conduct business or in any line of business with any Person or in any geographic area (including granting exclusive rights or during rights of first refusal to license, market, sell or deliver any period of timethe products or services offered by any Company Entity), (B) that provides for “most favored customer” terms or similar terms (including such terms for pricing) or (C) with minimum purchase requirements;
(x) any Contracts to which any member of the Company Group is that include a party that provide for any joint ventureroyalty, partnership dividend or similar arrangement by based on the revenues or profits of any member of the Company GroupEntity or any Contracts involving fixed price or fixed volume arrangements that would reasonably be expected to materially impact any Company Entity;
(xi) all Contracts between Any lease, sublease or among similar Contract with any member Person under which any Company Entity (A) is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person or (B) is a lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by any Company Entity, in any such case in the foregoing clause (A) or in this clause (B) which has an aggregate future liability or receivable, as the case may be, in excess of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand$50,000;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group Entity is a party, or by which any Company Entity is otherwise bound, that: (A) (I) grant rights in Software that is accessed by (e.g., running on a hosted or third-party service, etc.), incorporated or integrated into, or bundled with any Company Offerings or under which a Person has granted or agreed to grant to any Company Entity any license, covenant, release, immunity or other right with respect to Intellectual Property that are, or are purported to be, embodied in any Company Offerings, or are otherwise material to any Company Entity; and(II) grant rights in Software used by any Company Entity to support development or compilation of any Company Offerings; or (III) relate to Software used in the IT Systems of any Company Entity, but excluding (for listing purposes only) (x) Open Source Software licenses, and (y) non-exclusive licenses to third-party Software that are not incorporated into or used in the development, manufacturing, testing, distribution, maintenance, or support of, any Company Offering and that do not involve payments of amounts in excess of $10,000 and are not otherwise material to any Company Entity’s business; (B) grant a license or interest (including any covenant, release, immunity or other right) in any Owned Intellectual Property; or (C) relate to the acquisition, transfer, use, development, sharing or license or grant of any other right in any material Intellectual Property (including any covenant, release, immunity or other right), excluding (for listing purposes only) Contracts with employees entered into in the ordinary course of business assigning Intellectual Property developed by such employees in the course of their employment to a Company Entity;
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10.
(b) Each Material Contract is valid and binding on the Company Group member party thereto in accordance Contracts for joint ventures or similar partnerships or business arrangements with its terms and is in full force and effect. None of the Company Group member or, to Seller’s Knowledge, any other party thereto is in breach of another Person 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. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or 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 (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.business;
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Material Contracts. (a) Section 3.10(a4.21(a) of the Company Disclosure Schedules lists each Schedule sets forth, as of the following Contracts date hereof, a true and complete list of any member of all written contracts, agreements, arrangements and understandings to which the Company Group (such Contracts, together with all Contracts concerning the occupancy, management or operation any of its Subsidiaries is a party or by which any Real Property (including without limitation, brokerage contracts) listed of its respective assets or otherwise disclosed in Section 3.11(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):operations may be bound that are:
(i) each Contract involving aggregate consideration in excess Contracts the entering into of $100,000 and which, in each case, cannot be cancelled which by the member Company or a Subsidiary of the Company Group after the date hereof would, individually, be prohibited under Section 6.1(e) without penalty or without more than 90 days’ noticethe consent of Parent;
(ii) all Contracts that require any member of materially restrict the Company Group to purchase and its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by any member of the Company Group of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person Subsidiaries or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any member of the Company Group is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of any member of the Company Group;
(viii) all Contracts with any Governmental Authority to which any member of the Company Group is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of any member of the Company Group to compete corporate Affiliate thereof from competing in any material line of business or with any Person or in any geographic area or during any period of timegeographical area;
(xiii) Contracts granting a conservation easement to any Contracts Person with respect to which any member real property of the Company Group is or any of its Subsidiaries, in any individual case with respect to more than 500 contiguous acres of land;
(iv) Contracts granting timber cutting rights with respect to the timberlands of the Company and its Subsidiaries (other than Contracts for timber cutting services provided to the Company and its Subsidiaries) to any Person other than a party that provide Subsidiary of the Company for more than 1,000,000 board feet in the case of any one such Contract;
(v) Contracts, including mortgages or other grants of material security interests, guarantees and notes, relating to the borrowing of money in an amount greater than $20 million, individually or in the aggregate; and
(vi) Contracts relating to any material joint venture, partnership partnership, strategic alliance or similar arrangement by arrangement, other than any member of the Company Group;
(xi) all such Contracts between or among any member the Company and/or Subsidiaries of the Company Group on the one hand and Seller or any Affiliate of Seller (other than any member of the Company Group) on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to which any member of the Company Group is a party; and
(xiii) any other Contract that is material to the Company Group and not previously disclosed pursuant to this Section 3.10Company.
(b) Each Material Contract is valid and binding of the Contracts required to be listed on Section 4.21(a) of the Company Group member party thereto in accordance with its terms and Disclosure Schedule (collectively, the "Company Material Contracts") is in full force and effect, except where the failure to be in full force and effect would not, individually or in the aggregate, have a Company Material Adverse Effect, and there are no existing defaults by the Company and its Subsidiaries, or, to the knowledge of the Company, any other party, under such Contracts, which would, individually or in the aggregate, have a Company Material Adverse Effect. None True, accurate and complete copies of the Company Group member or, Material Contracts and of all Contracts pursuant to Seller’s Knowledge, which the execution of this Agreement or the consummation of the Merger would give rise to or trigger any other rights of a party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract "change of control" or similar provision contained therein which would result in (x) any material financial liability or (y) result in a termination thereof or would cause or permit the acceleration or other changes of right with respect to any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Company Material Contract (including all modificationsContract, amendments and supplements thereto and waivers thereunder) have been made available to BuyerParent prior to the date hereof. The Company has made available to Parent a true and complete copy of each CIC Plan and all amendments thereto.
(c) Section 4.21(c) of the Company Disclosure Schedule sets forth the Company's aggregate committed spending for capital projects as of the date hereof and each such project for which the Company's committed spending as of the date hereof exceeds $1,000,000.
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Sources: Merger Agreement (Longview Fibre Co)