Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement of: (i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act; (ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty; (iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area; (iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions; (v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries); (vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party; (vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement; (viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement); (ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger; (x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate; (xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and (xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”. (b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement. (c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 3 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Norcraft Companies, Inc.), Merger Agreement (Fortune Brands Home & Security, Inc.)
Material Contracts. (a) Except for contracts (including all amendments i) this Agreement (and modifications theretothe 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 date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Documents, Schedule 3.18(aReports or (iii) as set forth in Section 3.15(a) of the Company Disclosure SchedulesLetter (such Contracts collectively, sets forth a complete and accurate list the “Material Contracts”), as of the date of this Agreement ofAgreement, none of the Company or any Company Subsidiary is a party to or bound by:
(i) any contract Contract that is required to be filed as an exhibit by the Company pursuant to a report or filing Item 15 of Form 10-K under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments Contract relating to any credit, loan or consideration from facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any of its subsidiaries Company Subsidiary) of more than $1,000,000 during US$2,000,000 for each such Contract individually, other than any twelve (12) month period and is not terminable by Indebtedness between or among any of the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyand any Company Subsidiary;
(iii) any contract 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 contains is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any covenant restricting Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or Company Subsidiary to compete in any material line of business, (y) compete business or with any person or (z) operate entity or in any geographic areaarea or during any period of time;
(ivvi) any contract granting to any person (other than Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights wholly owned Company Subsidiaries, prohibits the pledging of first refusal, rights the capital stock of first negotiation or any similar requirement in favor of any person (other than the Company or any wholly owned Company Subsidiary or prohibits the issuance of its subsidiaries)any guaranty by the Company or any wholly owned Company Subsidiary;
(vivii) any contract relating Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any joint ventureThird Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, partnershipdirectly or indirectly (by merger, strategic alliancelicense or otherwise), of assets or capital stock or other similar equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company Subsidiaries licenses in Intellectual Property or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of its subsidiaries control or similar payments to a third party in excess of debt obligations US$1,000,000.
(b) 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 or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of any other persongeneral applicability relating to or affecting creditors’ rights, including the respective aggregate principal amounts outstanding and to general equity principles; (ii) as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of or material default under the terms or conditions of any Company Material Contract. Each Company such Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all no fact or event exists that could give rise to any claim of material respects, 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 default under any Material Contract; and (iiiv) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion Company has not received, as of the court before which date of this Agreement, any proceeding therefor may be broughtnotice in writing from any person that such person intends to terminate any Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (Full Alliance International LTD), Merger Agreement (Yongye International, Inc.), Merger Agreement (Morgan Stanley)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) Section 3.16 of the Company Pivotal Disclosure Schedules, sets forth a complete Letter lists (1) the EMC-Pivotal Customer Contracts and accurate list as (2) each Contract of the date of this Agreement of:
(i) following types, other than a Pivotal Plan or any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company Contract solely among Pivotal or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period Subsidiaries, on the one hand, and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company VMware or any of its subsidiaries or affiliates (including Parent after Subsidiaries, on the Merger Closing) to: (x) conduct or compete in any material line of businessother hand, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company which Pivotal or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries Subsidiaries is a party or by which any of them their respective properties or assets is bound:
(i) any Contract that would be required to be filed by Pivotal as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by Pivotal on a Current Report on Form 8-K;
(ii) any Contract that limits the ability of Pivotal or any of its Subsidiaries in a material manner, to compete in any line of business or with any Person or in any geographic area, which business or geographic area is material to Pivotal and its Subsidiaries, taken as a whole, or that materially restricts the right of Pivotal and its Subsidiaries in a material manner to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third Person “most favored nation” status or any type of special discount rights;
(iii) any Contract with respect to the formation, creation, operation, management or control of a joint venture, partnership, limited liability or other similar agreement or arrangement;
(iv) any Contract relating to Indebtedness and having an outstanding principal amount in excess of $1,000,000;
(v) any Contract involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration (in one or a series of transactions) under such Contract of $1,000,000 or more (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practice);
(vi) any Contract that by its terms calls for aggregate payment (including royalties) by Pivotal and its Subsidiaries under such Contract of more than $5,000,000 over the remaining term of such Contract;
(vii) any Contract pursuant to which Pivotal or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case that could result in payments in excess of $5,000,000, other than indemnification arrangements arising pursuant to Contracts with customers relating to Pivotal Products in the ordinary course of business; Table of Contents
(viii) any Contract that is a license agreement, covenant not to ▇▇▇ agreement or co-existence agreement or similar agreement that is material to the business of Pivotal and its Subsidiaries, taken as a whole, to which Pivotal or any of its Subsidiaries is a party and (a) licenses in Intellectual Property owned by a third party, or (b) licenses out Intellectual Property owned by Pivotal or its Subsidiaries or agrees not to assert or enforce Intellectual Property owned by Pivotal or such Subsidiary, other than, in the case of (a), (1) non-exclusive licenses for software or a cloud service that is generally commercially available and not embedded in, integrated or bundled with a Pivotal Product, and (2) Open Source Licenses, and in the case of (b), (3) non-exclusive licenses granted to any Person in the ordinary course of business where the license is granted for the purpose of the Person’s provision of services to Pivotal or any of its Subsidiaries, including such Contracts with individual employees or independent contractors, and in the case of (a) and (b), (4) non-exclusive licenses relating to Pivotal Products with customers and potential customers of Pivotal or any of its Subsidiaries entered into in the ordinary course of business, (5) stand-alone confidentiality agreements entered into in the ordinary course of business and (6) Contracts with VMware, EMC Corp, Dell or any of their Affiliates;
(ix) any Contract that obligates Pivotal or any of its Subsidiaries to make any capital commitment, loan or expenditure in an amount in excess of $5,000,000;
(x) any Contract not entered into in the ordinary course of business between Pivotal or any of its Subsidiaries, on the one hand, and any Affiliate thereof other than any Subsidiary of Pivotal, Dell, EMC Corp, VMware or any of their respective Affiliates;
(xi) any Current Government Contract;
(xii) any Material Customer Contract with a Top Customer; or
(xiii) any Contract to which Pivotal or any of its Subsidiaries is a party and pursuant to which Intellectual Property owned by a third party is exclusively licensed (or similar exclusive rights are granted) to Pivotal or any of its Subsidiaries, excluding Intellectual Property that is not material to the business of Pivotal and its Subsidiaries, taken as a whole. Each such contract of the type described in any of subsection (a)(1) and subsection (a)(2) clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreementxiii) is referred to herein as a “Company Material Contract.”.
(bi) Prior Each Material Contract is valid and binding on Pivotal and any of its Subsidiaries to the date extent such Subsidiary is a party thereto, as applicable, and to the knowledge of this AgreementPivotal, the Company has provided complete each other party thereto, and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in full force and effect and enforceable in accordance with its terms, except where the failure to be valid, binding, enforceable and in full force and effect, individually or in the aggregate, would not have a Material Adverse Effect; (ii) Pivotal and each of its Subsidiaries, and, to the knowledge of Pivotal, each other party thereto, has performed all obligations required to be performed by it under each Material Contract, other than any obligations for which the failure to perform would not be material breach of or material to Pivotal and its Subsidiaries, taken as a whole; and (iii) there is no default under the terms or conditions of any Company Material Contract by Pivotal or any of its Subsidiaries or, to the knowledge of Pivotal, any other party thereto, and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company Pivotal or any of its subsidiaries Subsidiaries or, to the knowledge of the CompanyPivotal, any other party thereto under any such Company Material Contract, nor has the Company Pivotal or any of its subsidiaries Subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) where any such enforcement may be subject default, event or condition, individually or in the aggregate, would not have a Material Adverse Effect. Pivotal has Made Available to applicable bankruptcyVMware true and complete copies of all Material Contracts, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtincluding all amendments thereto.
Appears in 3 contracts
Sources: Merger Agreement (Dell Technologies Inc), Merger Agreement (Dell Technologies Inc), Merger Agreement (Vmware, Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date For purposes of this Agreement of:
Agreement, a “Material Contract” means any Contract (ior group of related Contracts) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from which the Company or any of its subsidiaries Subsidiaries is a party or by which any of more than $1,000,000 during any twelve their respective properties or assets are bound:
(12i) month period and that is not terminable filed or required to be filed by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyas a “material contract” under Applicable Securities Laws in Canada;
(iiiii) that (A) purports to limit or otherwise restrict in any contract that contains any covenant restricting material respect the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or Subsidiaries to compete in any material line of businessbusiness or geographic or therapeutic area (or that, following the Arrangement, would by its terms apply such limits or other restrictions to the Parent or its Subsidiaries), (yB) compete with grants any person exclusive rights, (C) contains a “most favored nation” or similar provision, (zD) operate in includes any geographic area;
“take or pay” or “requirements” obligation, (ivE) any contract granting otherwise purports to any person (other than prohibit or limit the right of the Company or any of its subsidiariesSubsidiaries to develop, license, sell or distribute any products or services or (F) “most favored nation” pricing provisionsthat purports to limit or otherwise restrict the ability of the Company or its Subsidiaries to solicit for hire or to hire any person;
(viii) (A) containing any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliancestandstill, or other similar agreements agreement pursuant to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture Subsidiaries has agreed not to acquire assets or other contract (collectively, “debt obligations”) pursuant to which any indebtedness securities of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other another person, including the respective aggregate principal amounts outstanding as (B) containing a put, call, right of the date of this Agreement;
(viii) any contract with first refusal or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as similar right pursuant to which the Company or any of its subsidiaries Subsidiaries could be required to purchase or sell, or otherwise acquire or transfer, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than $100,000 or (C) relating to the acquisition or disposition of any business or any material assets other than in the ordinary course of business (whether by merger, sale of shares or assets or otherwise);
(iv) that would prevent, materially delay or materially impede the Company’s ability to consummate the Transactions;
(v) that is between the Company or any of its Subsidiaries and any of their respective directors, officers, affiliates or any person beneficially owning five percent (5%) or more of the outstanding Common Shares;
(vi) that involves the payment or receipt by the Company or its Subsidiaries of royalties or other amounts in consideration for rights to practice any Intellectual Property of more than $100,000 in the aggregate;
(vii) (A) for the furnishing of services or the sale of products which involves, or would reasonably be expected in the future to involve, consideration in excess of $100,000 in any 12 month period, (B) for the receipt of services by a third party or for the purchase of raw materials, commodities, supplies, products, or other personal property, which involves payment by the Company or any of its Subsidiaries of consideration in excess of $100,000 in any 12 month period or which would reasonably be expected to involve payment by the Company or any of its Subsidiaries of consideration in excess of $100,000 in any future 12 month period during the term of such agreement except for payments to trade creditors in the ordinary course of business or (C) that provides for future payment obligations by the Company or any of its Subsidiaries of $100,000 or more related to clinical trials of Company Pharmaceutical Products;
(viii) under which any of the Company or any of its Subsidiaries is a lessee of, or holds or uses, any equipment, machinery, vehicle or other tangible personal property owned by a third person which requires future annual payments in excess of $100,000;
(ix) pursuant to which the Company or any of its Subsidiaries has entered into a partnership, joint venture, collaboration or other similar arrangement with any 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 which the Company or any of its Subsidiaries agrees not to make use of any material right in any Intellectual Property owned by the Company or any of its Subsidiaries;
(xii) pursuant to which the Company or any of its Subsidiaries has outstanding indebtedness, or provides a guarantee in a principal amount in excess of $100,000 other than indebtedness to trade creditors incurred in the ordinary course of business;
(xiii) containing a settlement with respect to a Proceeding (whether commenced or threatened in writing) of any nature;
(xiv) which requires future payments by the Company or any of its Subsidiaries in excess of $100,000 per annum containing “change of control” or similar provisions (whether or not such payments or benefits are contingent upon the occurrence of any other event);
(xv) under which the Company or its Subsidiaries have received, or are entitled to receive, payment from any person for use in the research or development of any Company Pharmaceutical Product;
(xvi) under which the Company is obligated to make future payments of over $100,000 for the research, development, or commercialization of any Company Pharmaceutical Product;
(xvii) pursuant to which the Company, any of its Subsidiaries or any other party thereto has material continuing obligations, rights or interests relating to the research, development, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to any Company Pharmaceutical Product;
(xviii) any Company Lease;
(xix) any employment, contractor or consulting Contract with any Company employee with annual compensation in excess of Cdn$200,000;
(xx) any Contract that provides for any change of control, severance or termination pay or other compensation or benefits related to termination of employment or services to the Company or any of its Subsidiaries;
(xxi) any collective bargaining agreement or other similar Contract with a union, works council, trade union or other labor relations entity;
(xxii) any Contract with any current or former officer or director of the Company or any of its Subsidiaries; or
(xxiii) any Contract of which the Company has knowledge to which any employee, consultant or independent contractor of the Company or a Subsidiary is bound that in any manner purports to (A) 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 independent contractor’s rights to any Intellectual Property that relate to the business of the Company and its 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 them is their respective properties or assets are bound. Each , and identifies each subsection of Section 13(a) that describes such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior . The Company has delivered or made available to the date of this AgreementParent true, the Company has provided correct and complete and accurate copies of all Company the Material Contracts (Contracts, including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as supplements and modifications thereto. Each of the date of this Agreement.
(c) Neither Material Contracts is valid and binding on the Company nor any subsidiary or its applicable Subsidiary and, to the knowledge of the Company Company, each other party thereto and is in full force and effect. None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any other party, is in breach of, or default under, in any material breach of or material default under the terms or conditions of respect, any Company Material Contract Contract, and no event or condition has occurred that constitutes, or, after with notice or lapse of time or both, both would constitute, constitute such a breach or default thereunder in any material default on the part of respect by the Company or any of its subsidiaries Subsidiaries, or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has thereto. Neither the Company or nor any of its subsidiaries Subsidiaries has received any written notice of or other communication regarding any such material default, event actual or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material possible violation or breach of or material default under the terms under, or conditions of intention to cancel or modify, any Company Material Contract. Each Company Material Contract is a valid and binding obligation .
(c) Section 13(c) of the Company and, to the knowledge Disclosure Letter contains a complete and accurate list of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtDesignated Contracts.
Appears in 3 contracts
Sources: Acquisition Agreement, Acquisition Agreement, Arrangement Agreement (Ym Biosciences Inc)
Material Contracts. (a) Except for contracts (including all amendments this Agreement and modifications thereto) except for Contracts filed as exhibits to the Company SEC DocumentsReports filed prior to the date of this Agreement, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date hereof, none of this Agreement ofthe Company or its Subsidiaries is a party to or bound by:
(i) any contract Contract that is would be required to be filed as an exhibit by the Company pursuant to a report or filing Item 4 of the Instructions to Exhibits of Form 20-F under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments Contract involving the payment or consideration from receipt of amounts by the Company or any of its subsidiaries of more Subsidiaries, or relating to material Indebtedness (other than $1,000,000 during any twelve (12) month period and is not terminable by Indebtedness solely between the Company or and any of its subsidiary on 90 (or fewer) days’ notice without penaltySubsidiaries);
(iii) any contract material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that contains limits in any covenant restricting material respect the ability of the Company or any of its subsidiaries Subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or any of their respective employees to compete in any material line of business, (y) compete business or with any person Person or (z) operate entity or in any geographic areaarea or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(ivv) any contract granting material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any person 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) “most favored nation” pricing provisionsSubsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vvii) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than Contract between the Company or any of its subsidiaries);
(vi) Subsidiaries and any contract relating to any joint venture, partnership, strategic alliance, director or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness executive officer of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding Person beneficially owning five percent or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as more of the date outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of this AgreementForm 20-F under the Exchange Act;
(viii) any contract with Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or with respect the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to a labor unionthe Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, guild or other employee representative (including any collective bargaining agreement or works council agreement);taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any contract that requires other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a consent to or otherwise contains a provision relating to a change of controlwhole, or that the conduct of their respective businesses, or the absence of which would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the have a Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is boundMaterial Adverse Effect. Each such contract Contract described in any of clauses (i) through (xiiix) of this Section 3.18(a) (above and each contract entered into after the date of this Agreement such Contract that would have been described in any be a Material Contract but for the exception of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on being filed as an exhibit to the date of this Agreement) Company SEC Reports is referred to herein as a “Company Material Contract”.
(b) Prior to As of the date of this Agreement, the Company has provided complete and accurate copies of all except as would not have a Company Material Contracts Adverse Effect, (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereofi) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the knowledge of Company’s Knowledge, the Companyother parties thereto, is in full force and effect, enforceable in accordance with its terms in all material respects, 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 neither the Company nor any of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and its Subsidiaries nor, to the discretion Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any 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 court before which Company’s Knowledge, the action or inaction of any proceeding therefor may be broughtthird party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Chiu Na Lai), Merger Agreement (Le Gaga Holdings LTD)
Material Contracts. (a) Except for contracts (including all amendments this Agreement and modifications thereto) filed as exhibits to the Company SEC Documentsother Transaction Agreements, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date hereof, none of this Agreement ofCompany T or its Subsidiaries is a party to nor are any of Company T’s or its Subsidiaries’ properties or assets bound by:
(i) any contract Contract that is would be required to be filed as an exhibit or furnished by Company T pursuant to a report or filing Item 19 and paragraph 4 of the Instructions to Exhibits of Form 20-F under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments Contract granting a right of first refusal, first offer or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyfirst negotiation;
(iii) any contract that contains any covenant restricting Contract relating to the ability formation, creation, operation, management or control of the Company a partnership, joint venture, limited liability company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic areasimilar arrangement;
(iv) any contract granting to any person Contract for the acquisition, sale or lease (other than the including leases in connection with financing transactions) of material properties or assets of Company T (by merger, purchase or any sale of its subsidiaries) “most favored nation” pricing provisionsassets or stock or otherwise);
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or Contract with any similar requirement in favor of any person (other than the Company or any of its subsidiaries)Governmental Entity;
(vi) any contract Contract involving the payment or receipt of amounts by Company T or its Subsidiaries, or relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company indebtedness for borrowed money or any financial guaranty, of its subsidiaries is a partymore than US$4,000,000;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture non-competition Contract or other contract (collectivelyContract that purports to limit, “debt obligations”) pursuant to which curtail or restrict in any indebtedness material respect the ability of the Company T or any of its subsidiaries Subsidiaries to compete in excess any geographic area, industry or line of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreementbusiness;
(viii) any contract with Contract that contains a put, call or with respect similar right pursuant to a labor unionwhich Company T or any of its Subsidiaries could be required to purchase or sell, guild or other employee representative (including as applicable, any collective bargaining agreement or works council agreement)equity interests of any Person;
(ix) any contract Contract that requires a consent contains restrictions with respect to (A) payment of dividends or otherwise contains a provision relating any distribution with respect to a change equity interests of controlCompany T or any of its Subsidiaries, (B) pledging of share capital of Company T or that would any of its Subsidiaries or could reasonably be expected to prevent, delay (C) issuance of guaranty by Company T or impair the consummation any of the transactions contemplated herein, including the Merger;its Subsidiaries; or
(x) any contract requiring or otherwise relating to any future capital expenditures by the material Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
T IP Agreements other than agreements for Off-the-Shelf Software and UGC Agreements (xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract Contracts described in any of clauses (i) through (xii) of this Section 3.18(a) (x), and each contract entered into after any Company T VIE Contracts, collectively, the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company T Material ContractContracts”).
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 3 contracts
Sources: Merger Agreement (Tudou Holdings LTD), Merger Agreement (Youku Inc.), Merger Agreement (Tudou Holdings LTD)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits For purposes of this Agreement, “Material Contract” shall mean the following to which the Company SEC Documents, Schedule 3.18(a) or any Subsidiary is a party or any of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement oftheir assets are bound:
(i) any contract that “material contract” (as such term is required to be filed as an exhibit to a report or filing under defined in Item 601(b)(10) of Regulation S-K of the Securities Act Act), whether or not filed by the Exchange ActCompany with the Commission;
(ii) any employment or consulting contract that involves annual payments or consideration from (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or any former (x) executive officer of its subsidiaries the Company, (y) member of more than the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty200,000;
(iii) any contract that contains any covenant restricting the ability of the Company providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of its subsidiaries customers or affiliates (including Parent after other Persons pursuant to contracts entered into in the Merger Closing) to: (x) conduct or compete in any material line ordinary course of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting that purports to limit in any person (other than material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any of its subsidiaries) “most favored nation” pricing provisionsPerson or operate in any geographical location;
(v) any contract that provides for “exclusivity,” rights of first refusalrelating to the disposition or acquisition, rights of first negotiation directly or any similar requirement in favor of any person indirectly (other than by merger or otherwise), by the Company or any of its subsidiaries)assets with a fair market value in excess of $250,000;
(vi) any contract relating that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a partyCompany;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of that obligates the Company to conduct business on an exclusive or preferential basis with any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreementthird party;
(viii) any partnership, joint venture or similar contract with or with respect that is material to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement)the Company;
(ix) any contract that requires a consent to mortgages, indentures, guarantees, loans or otherwise contains a provision credit agreements, security agreements or other contracts, in each case relating to a change indebtedness for borrowed money, whether as borrower or lender, in each case in excess of control$250,000, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Mergerother than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract requiring or otherwise relating to with any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregatelabor union;
(xi) any other contract providing for indemnification by under which the Company is obligated to make payment or incur costs in excess of $250,000 in any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; andyear and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the material Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”IP.
(b) Prior to (i) All of the date of this Agreement, Material Contracts are valid and binding on the Company has provided complete or its Subsidiaries, enforceable against it in accordance with its terms, and accurate copies are in full force and effect, subject to laws of all Company Material Contracts (including all amendmentsgeneral application relating to bankruptcy, modificationsinsolvency, supplementsfraudulent transfer, exhibitsreorganization, schedulesmoratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, annexes injunctive relief or other documents modifying or supplementing the terms thereofequitable remedies, and to limitations of public policy, (ii) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of neither the Company or any of its subsidiaries orSubsidiary nor, to the knowledge of the Company, any other third party thereto is in violation of any provision of, or failed to perform any obligation required under the provisions of, any such Company Material Contract, nor has except as disclosed in Schedule 3.13 and (iii) neither the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company andSubsidiary nor, to the knowledge of the Company, any third party, is in full force and effectbreach, enforceable in accordance with its terms in all or has received written notice of material respectsbreach, of any Material Contract, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter as disclosed in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtSchedule 3.13.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Strobeck Matthew), Securities Purchase Agreement (Feinberg Family Trust), Securities Purchase Agreement (Vermillion, Inc.)
Material Contracts. (a) Except Section 3.16(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date hereof, of each of the following Contracts (excluding any Company Benefit Plans) (other than with respect to Section 3.16(a)(vi)) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their material assets or businesses are bound (and any amendments thereto) (the “Company Material Contracts”):
(i) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) any Contract relating to indebtedness for contracts borrowed money (or guarantee thereof), in excess of $5,000,000, other than Contracts solely among the Company and its Subsidiaries;
(iii) any Contract that relates to the purchase, acquisition, sale, transfer or disposition of a business or assets by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries has any continuing “earnout” or other contingent or deferred payment obligations in excess of $5,000,000 in the aggregate, for each such purchase, acquisition, sale, transfer or disposition;
(iv) any Contract that by its terms prevents or materially restricts the payment of dividends or other distributions by the Company;
(v) any Contract for any material joint venture, partnership or similar arrangement, or any Contract involving a sharing of material revenues, profits, losses, costs, or liabilities by the Company with any other Person or any of its Subsidiaries (other than Contracts solely among the Company and its Subsidiaries);
(vi) any collective bargaining agreement or other agreement or arrangement with any Union; and
(vii) any Contract pursuant to which the Company or any of its Subsidiaries grants or is granted a license or other right (including all amendments a covenant not to sue or assert) to any material Intellectual Property (other than Contracts (A) in which grants of Intellectual Property are incidental to the primary purpose of such Contracts, (B) granting non-exclusive licenses or rights to customers in the ordinary course of business, (C) non-disclosure agreements, or (D) granting rights to use commercially available, off-the-shelf, non-customized software pursuant to shrink wrap, click through or similar nonexclusive, royalty-free licenses on standard non-discriminatory terms).
(b) The Company has heretofore made available to Parent true, correct and modifications thereto) complete copies of Company Material Contracts not filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement of:.
(ic) any contract that is required Except as has not had and would not reasonably be expected to be filed as an exhibit to have, individually or in the aggregate, a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period Material Adverse Effect, all Company Material Contracts are valid, binding and is not terminable in full force and effect and are enforceable by the Company or its subsidiary on 90 (or fewer) daysapplicable Subsidiary in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of businessrights generally, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of by general equitable principles or by the Company or any of its subsidiaries of debt obligations discretion of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by Governmental Entity before which any of them is boundProceeding seeking enforcement may be brought. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material its Subsidiaries has Knowledge of, or has received written notice of, any breach of or material default under the terms (with or conditions without notice or lapse of time, or both) any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orand, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge Knowledge of the Company, no other party to any Company Material Contract is (with or without notice or lapse of time, or both) in material breach or default thereunder, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has Knowledge of, or material default under the terms has received written notice of, any actual, alleged, possible or conditions potential violation of, or failure to comply with, any term or requirement of any Company Material Contract. Each , or any intention of any party to cancel, terminate, materially change the scope of rights under or fail to renew any Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtContract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Olympic Steel Inc), Agreement and Plan of Merger (Olympic Steel Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.21(a) of the Company Disclosure SchedulesLetter contains a true, sets forth a complete and accurate correct list as of the date of this Agreement of:
(i) any contract that is required following Contracts to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from which the Company or any of its subsidiaries of more than $1,000,000 during Subsidiaries is a party or by which any twelve (12) month period and is not terminable by the Company property or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability asset of the Company or any of its subsidiaries Subsidiaries is bound, in each case as of the date of this Agreement, other than Company Plans listed on Section 3.18(a) of the Company Letter (collectively, the “Material Contracts”):
(i) (A) each Contract that limits the freedom of the Company, any of its Subsidiaries or affiliates (including Parent after any of its Affiliates to compete or engage in any line of business or geographic region or with any Person, sell, supply or distribute any product or service or that otherwise has the Merger Closing) to: (x) conduct or compete effect of restricting in any material line respect the Company, its Subsidiaries or Affiliates, taken as a whole, from the development, marketing or distribution of businessproducts and services, (y) compete with any person or (z) operate in each case, in any geographic areaarea or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company and its Subsidiaries) after the Acceptance Time;
(ivii) each partnership, joint venture or limited liability company agreement (other than any contract granting such agreement solely between or among the Company and its wholly owned Subsidiaries) or similar Contract that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract entered into since January 1, 2014: (A) relating to the disposition or acquisition by the Company or any person 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) “most favored nation” pricing provisionsSubsidiaries), in each case, other than such Contracts that are immaterial to the Company and its Subsidiaries, taken as a whole;
(viv) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation each Contract with respect to the acquisition or any similar requirement in favor disposition of any person Person (whether by merger, amalgamation, consolidation or other than business combination, sale of assets, sale of shares in the Company share capital or any of its subsidiaries);
(vi) any contract relating to any joint ventureother voting securities, partnershiptender offer, strategic allianceexchange offer, or other similar agreements transaction) pursuant to which the Company or any of its subsidiaries is 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 partywhole, or (y) other than any Contract that provides solely for the acquisition of inventory, raw materials or equipment in the ordinary course;
(v) any and all Contracts required to be listed on (x) Section 3.16(e) or (y) Section 3.16(f) of the Company Letter;
(vi) (A) each Contract that grants any right of first refusal or right of first offer in favor of a Third Party or that materially limits the ability of the Company, any of its Subsidiaries or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or material assets or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company and its Subsidiaries) after the Acceptance Time;
(vii) (A) each supply Contract that contains any loan agreementexclusivity rights (other than customization work for customers relating to Company Products) or “most favored nations” provisions or minimum use, credit agreement, note, debenture, bond, mortgage, guarantee, indenture supply or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of display requirements that is binding on the Company or any its Affiliates or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by Affiliates (other than the Company or any of and its subsidiaries of debt obligations of any other person, including Subsidiaries) after the respective aggregate principal amounts outstanding as of the date of this AgreementAcceptance Time;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or than instruments providing for indebtedness that would or could reasonably be expected to preventnot, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
, exceed $50,000,000, each Contract that (xiA) any contract is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indemnification by indebtedness (including obligations under any capitalized leases but excluding agreements between the Company or and any its subsidiaries of any officer, director or employee wholly owned Subsidiary of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all between wholly owned Subsidiaries of the assets Company) or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as pursuant to which the Company or any of its subsidiaries Subsidiaries guarantees any such indebtedness of any other Person (other than the Company or another wholly owned Subsidiary of the Company), (B) materially restricts the Company’s and its Subsidiaries’ (taken as a whole) ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset of the Company or its Subsidiaries that is material to the Company and its Subsidiaries, taken as a party whole, or by which (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 them is bound. Each such contract described in any its Subsidiaries to pay consideration of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into more than $10,000,000 after the date of this Agreement that would have been Agreement; and
(xi) each Contract not otherwise described in any of clauses (i) through (xii) other subsection of this Section 3.18(a3.21(a) if such contract existed on the date of this Agreement) is referred to herein as that would constitute a “Company Material Contract”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) Prior to the date A true, correct and complete copy of this Agreement, the Company has provided complete and accurate copies of all Company each Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) 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.
(c) Neither . Except for matters that would not have or reasonably be expected to have, individually or in the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any aggregate, a Company Material Adverse Effect, (i) each Material Contract is a valid, binding and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part enforceable obligation of the Company or any one of its subsidiaries orSubsidiaries, to on the knowledge of the Companyone hand, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, of the other party or parties thereto, on the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and each Material Contract is in full force and effect, enforceable in accordance with its terms in all material respects, 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 the Company and each of specific performance and injunctive and other forms of equitable relief may its Subsidiaries has performed all obligations required to be subject performed by it under each Material Contract to equitable defenses and date and, to the discretion knowledge of the court before Company, each other party to each Material Contract has performed all obligations required to be performed by it under such Material Contract to date, (iii) none of the Company or any of its Subsidiaries has received written notice of any, and, to the knowledge of the Company, none of the Company or any of its Subsidiaries is in, default or material breach 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 proceeding therefor may be broughtMaterial Contract and (iv) neither the Company nor any of its Subsidiaries has received any written notice from any other party to any such Material Contract that such party intends to terminate, or not renew, any such Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
Material Contracts. (a) Except for contracts (including all amendments this Agreement and modifications thereto) filed as exhibits to the Company SEC DocumentsReassignment Agreement, Schedule 3.18(a) Section 3.14 of the Company DouYu Disclosure Schedules, Schedule sets forth a true and complete and accurate list as of all of the date following types of this Agreement ofContracts that currently remain in effect (x) to which DouYu or any of its Subsidiaries is a party or which binds or affects their respective properties or assets, and (y) have not been filed with or furnished to the SEC as an exhibit to the DouYu SEC Reports:
(i) any contract Contract that is would be required to be filed as an exhibit or furnished by DouYu pursuant to a report or filing Item 19 and paragraph 4 of the Instructions to Exhibits of Form 20-F under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments Contract granting a right of first refusal, first offer or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyfirst negotiation;
(iii) any contract that contains any covenant restricting Contract relating to (A) the ability formation, creation, operation, management or control of a partnership, joint venture, limited liability company or similar arrangement, (B) strategic cooperation or partnership arrangements, or (C) other similar agreements outside the Company ordinary course of business involving a sharing of profits, losses, costs or liabilities, in each case, more than RMB20,000,000, by DouYu or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic areaSubsidiaries;
(iv) any contract granting to any person Contract for the acquisition, sale or lease (other than the Company including leases in connection with financing transactions) of material properties or any assets of its subsidiaries) “most favored nation” pricing provisionsDouYu (by merger, purchase or sale of assets or stock or otherwise);
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or Contract with any similar requirement in favor of any person (other than the Company or any of its subsidiaries)Governmental Entity;
(vi) any contract relating to Contract granting or evidencing a Lien on any joint venture, partnership, strategic alliance, material properties or other similar agreements to which the Company assets of DouYu or any of its subsidiaries is Subsidiaries, other than a partyPermitted Lien;
(vii) any loan agreementContract involving the capital expenditure by DouYu or its Subsidiaries, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant relating to which any indebtedness of the Company for borrowed money or any of its subsidiaries financial guaranty, in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other personeach case, including the respective aggregate principal amounts outstanding as of the date of this Agreementmore than RMB20,000,000;
(viii) any contract with Contract involving a loan (other than accounts receivable from trade debtors in the ordinary course of business) or with respect advance to (other than travel and entertainment allowances to the employees of the Company and any of its Subsidiaries extended in the ordinary course of business), or investment in, any Person, in each case, more than RMB20,000,000, other than a labor unionwholly-owned Subsidiary of DouYu or any Contract relating to the making of any such loan, guild advance or other employee representative (including any collective bargaining agreement or works council agreement)investment that is material to the financial status of DouYu;
(ix) any contract non-competition Contract or other Contract that requires a consent purports to limit, curtail or otherwise restrict in any material respect the ability of DouYu or any of its Subsidiaries to compete in any geographic area, industry or line of business;
(x) any Contract that contains a provision relating put, call or similar right pursuant to which DouYu or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests or assets of any Person that have a change fair market value or purchase price of controlmore than RMB20,000,000;
(xi) any Contracts involving any resolution or settlement of any actual or threatened material litigation, arbitration, claim or that would other dispute, more than RMB5,000,000;
(xii) any Contract (other than Contracts granting DouYu RSU Awards) giving the other party the right to terminate such Contract as a result of this Agreement or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated hereinby this Agreement, including the Merger;
(xxiii) any contract requiring Contract that contains restrictions with respect to (A) payment of dividends or otherwise relating any distribution with respect to any future capital expenditures by the Company equity interests of DouYu or any of its subsidiaries in excess Subsidiaries, (B) pledging of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries share capital of any officer, director or employee of the Company DouYu or any of its subsidiaries; and
Subsidiaries or (xiiC) any contract relating to any acquisition (issuance of guaranty by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company DouYu or any of its subsidiaries to Subsidiaries;
(xiv) any person of material properties, assets, capital stock or other equity interestsDouYu IP Agreements with an aggregate contract value exceeding RMB20,000,000;
(xv) Contracts with top twenty streamers and top twenty talent agencies, in each case, involving payments in excess terms of $1,000,000contract value; in each case for such contracts as or
(xvi) any other Contract, a breach or termination of which could reasonably be expected to which the Company or any of its subsidiaries is have a party or by which any of them is boundDouYu Material Adverse Effect. Each such contract Contract of the type described in any of clauses (i) through (xii) of this Section 3.18(a) (3.14(a), together with any Contract that has been filed or furnished by DouYu pursuant to Item 19 and each contract entered into after paragraph 4 of the date Instructions to Exhibits of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on Form 20-F under the date of this Agreement) Exchange Act, is referred to herein as a “Company DouYu Material Contract”.
(b) Prior to the date . A true and complete copy of this Agreement, the Company has provided complete and accurate copies of all Company each DouYu Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) Contract in effect as of the date of this Agreementhereof has been made available to Huya (including, where applicable, pursuant to agreed-upon procedures to protect competitively sensitive information) or publicly filed with the SEC.
(cb) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Each DouYu Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on constitutes the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and legally binding obligation of the Company andDouYu or its applicable Subsidiary, to the knowledge of the Company, enforceable in accordance with its terms and is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcyBankruptcy and Equity Exception. There is no material breach or default under any DouYu Material Contract either by DouYu or, insolvencyto DouYu’s knowledge, reorganizationby any other party thereto, moratorium and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by DouYu or, to DouYu’s knowledge, any other similar Laws, now party. No party to any such DouYu Material Contract has given notice to DouYu of or hereafter in effect, relating made a claim against DouYu with respect to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtmaterial breach or default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (HUYA Inc.), Merger Agreement (DouYu International Holdings LTD)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as As of the date of this Agreement ofAgreement, neither the Company nor any of its Subsidiaries is party to or bound by, whether in writing or not, any contract, arrangement, commitment or understanding that:
(i) (A) contains any contract material exclusivity or similar provision (including with respect to any Intellectual Property Rights) that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from binding on the Company or any of its subsidiaries Subsidiaries (or, after the Effective Time, purportedly New Charter or any of more than $1,000,000 during its Subsidiaries) or (B) otherwise limits or restricts in any twelve material respect the Company or any of its Subsidiaries (12or, after the Effective Time, purportedly New Charter or any of its Subsidiaries) month period from (1) engaging or competing in any material line of business in any location or with any Person, (2) selling any products or services of or to any other Person or in any geographic region or (3) obtaining products or services from any Person;
(ii) includes (A) any “most favored nations” terms and is not terminable conditions (including with respect to pricing) granted by the Company to a Third Party, (B) any arrangement whereby the Company grants any right of first refusal or right of first offer or similar right to a Third Party or (C) any arrangement between the Company and a Third Party that limits or purports to limit in any respect the ability of the Company or its subsidiary on 90 Subsidiaries (or, after the Effective Time, purportedly New Charter or fewerany of its Subsidiaries) days’ notice without penaltyto own, operate, sell, license, transfer, pledge or otherwise dispose of any material assets or business, in each case of clauses (A), (B) and (C), that is material to the Company and its Subsidiaries, taken as a whole;
(iii) is a joint venture, alliance or partnership agreement that either (A) is material to the Company and its Subsidiaries, taken as a whole, or (B) would reasonably be expected to require the Company and its Subsidiaries to make expenditures in excess of $100,000,000 in the aggregate during the 12-month period following the date hereof, but excluding any contract joint venture, alliance or partnership agreement to which Parent or any of its Subsidiaries is a party;
(iv) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than those between the Company and its Subsidiaries) relating to indebtedness in an amount in excess of $100,000,000 individually;
(v) is a material interest, rate, currency or other swap or derivative transaction (other than those entered into in the ordinary course of business solely for hedging purposes);
(vi) is an acquisition agreement, asset purchase or sale agreement, stock purchase or sale agreement or other similar agreement pursuant to which (A) the Company reasonably expects that contains it is required to pay total consideration including assumption of debt after the date hereof to be in excess of $100,000,000 or (B) any covenant restricting other Person has the ability right to acquire any assets of the Company or any of its subsidiaries Subsidiaries (or affiliates (including Parent any interests therein) after the Merger Closing) to: (x) conduct date of this Agreement with a fair market value or compete in any material line purchase price of business, (y) compete with any person or (z) operate in any geographic areamore than $100,000,000;
(ivvii) is a material contract, arrangement, commitment or understanding with the FCC or any contract granting other Governmental Authority relating to any person the operation or construction of Cable Systems that are not fully reflected in the Franchises;
(other than viii) is an agreement pursuant to which the Company or any of its subsidiaries) “most favored nation” pricing provisions;
Subsidiaries manages, operates or provides material services to any Cable Systems that are not, directly or indirectly, wholly owned by the Company (v) including any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than agreement pursuant to which the Company or any of its subsidiaries);
(vi) Subsidiaries is required to cause any contract relating such Cable Systems to any joint venture, partnership, strategic alliance, or be included in programming service distribution agreements and other similar agreements to which the Company or any of its subsidiaries is a Subsidiaries are party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);; or
(ix) is a settlement or similar agreement with any contract that requires Governmental Authority or order or consent of a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as Governmental Authority to which the Company or any of its subsidiaries Subsidiaries is a party subject involving future performance by the Company or by which any of them its Subsidiaries which is bound. Each material to the Company and its Subsidiaries, taken as a whole; (each such contract described listed in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary 4.19 of the Company is in material breach of or material default under the terms or conditions of Disclosure Schedule and any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part contract of the Company or any of its subsidiaries or, to the knowledge Subsidiaries that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the CompanySEC) (other than any Company Plan), any other party thereto under any such a “Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought”).
Appears in 2 contracts
Sources: Merger Agreement (Time Warner Cable Inc.), Merger Agreement (Charter Communications, Inc. /Mo/)
Material Contracts. (a) Except for contracts (including all amendments this Agreement and modifications thereto) for the Contracts filed with the SEC by the Company as exhibits to reports, schedules, forms, statements, and other documents and publicly available on ▇▇▇▇▇ prior to the Company SEC Documentsdate of this Agreement, Schedule 3.18(aSection 4.01(p) of the Company Disclosure Schedules, Schedule sets forth a true and complete and accurate list list, as of the date of this Agreement Agreement, of:
(i) any contract each Contract that is would be required to be filed by the Company as an exhibit a “material contract” pursuant to a report or filing Item 601(b)(10) of Regulation S-K under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from each Contract to which the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and Subsidiaries is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract a party that contains any covenant restricting materially restricts the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or Subsidiaries to compete in any material line of business, (y) compete business or with any person or (z) operate in any geographic areageographical area or grants a material right of first refusal or first offer or similar right (or will impose such limitations on Parent or any of its Affiliates following the Offer or the Merger);
(iviii) each Contract that requires payments by or to the Company and/or its Subsidiaries in an amount in excess of five hundred thousand dollars ($500,000) per annum, except for any contract granting such Contract that may be canceled, without penalty or other liability to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisionsSubsidiaries, upon notice of 90 days or less other than sales or purchase orders in the ordinary course of business;
(viv) any contract that provides each Contract relating to indebtedness for “exclusivity,” rights borrowed money in excess of first refusal, rights of first negotiation five hundred thousand dollars ($500,000) or any similar requirement in favor providing for the creation of any person (other than the Company or encumbrance upon any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness material assets of the Company or any of its subsidiaries Subsidiaries;
(v) each Contract that is a material license, sublicense or other contract pursuant to which the Company or a Subsidiary of the Company is authorized to use any third party Intellectual Property that is material to the business of the Company, excluding generally commercially available, off-the-shelf software programs, or pursuant to which any third party (x) is authorized to use Material Intellectual Property owned by the Company or any Subsidiary of the Company that is material to the business of the Company or (y) has obtained and continues to have exclusive rights in excess Material Intellectual Property;
(vi) each Contract with respect to co-promotion of, or collaboration with respect to, any product or product candidate or drug discovery platform, a material joint venture or material partnership agreement (excluding information technology Contracts or license or similar agreements with respect to Intellectual Property);
(vii) each Contract which would prohibit the consummation of $1,000,000 is outstanding the Offer or may be incurred and all guarantees of the Merger; and
(viii) each Contract with or by binding upon the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company Subsidiaries or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company their respective properties or any its subsidiaries of any officer, director or employee assets that is of the Company or any type that would be required to be disclosed under Item 404 of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of Regulation S-K under the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is boundSecurities Act. Each such contract Contract described in any of clauses (i) through (xiiviii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) above is referred to herein as a “Company Material Contract”.
(b) Prior . Including Contracts filed with the SEC by the Company as exhibits to reports, schedules, forms, statements, and other documents and publicly available on ▇▇▇▇▇ prior to the date of this Agreement, the Company has provided previously made available to Parent complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any each Company Material Contract. Each of the Company Material Contract Contracts is a valid and binding obligation on the Company or the Subsidiary of the Company party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect, enforceable except for such failures to be valid and binding or to be in accordance with full force and effect that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There is no default under any Company Material Contract by the Company or any of its terms in all material respectsSubsidiaries or, 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 Knowledge of the court before which Company, by any proceeding therefor may 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 or any of its Subsidiaries or, to the Knowledge of the Company, by any other party thereto, in each case except as would not reasonably be broughtexpected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (King Pharmaceuticals Inc), Merger Agreement (Alpharma Inc)
Material Contracts. (a) Except for contracts As of the date hereof, except (including all amendments and modifications theretox) as filed as exhibits to the Company SEC Documents, Schedule 3.18(aand (y) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby, Section 3.17 of the Company Disclosure Schedules, Letter sets forth a complete and accurate list as of agreements that the date of this Agreement ofCompany or its Subsidiaries are party to or are bound by:
(i) any contract that is required to be filed a “material contract” (as an exhibit to a report or filing under the Securities Act or such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) (A) containing a covenant limiting in any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting material respect the ability of the Company or any Subsidiary of its subsidiaries the Company to compete or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete engage in any material line of business, (y) business or to compete with any person or (z) operate Person in any geographic area, or (B) containing any “most favored nation” or “exclusivity” provisions that is material to the Company and its Subsidiaries taken as a whole;
(iii) relating to or evidencing indebtedness of the Company or any Subsidiary of the Company in excess of $1,000,000 (excluding, for the avoidance of doubt, intercompany loans solely between the Company and any of its wholly-owned Subsidiaries or solely between or among any wholly-owned Subsidiaries of the Company);
(iv) any contract granting to any person (other than that is a material license granted by the Company or any Subsidiary of its subsidiariesthe Company to Company Intellectual Property, other than (A) “most favored nation” pricing provisionsnon-exclusive licenses granted to customers in the ordinary course of business, (B) employee, contractors, and consulting agreements entered into in the ordinary course of business, and (C) material contracts set forth in Section 3.17(a)(i) of the Company Disclosure Schedule;
(v) any contract that provides for “exclusivity,” is a material license of the rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than third party granted to the Company or any Subsidiary of its subsidiariesthe Company, including that arises out of any material Intellectual Property-related dispute (including any co-existence agreement), other than (A) Contracts for commercially available software involving payments of less than $1,000,000 annually, (B) employee, contractor, and consulting agreements entered into in the ordinary course of business, and (C) material contracts set forth in Section 3.17(a)(i);
(vi) any contract primarily relating to the acquisition, ownership, or development of any joint venturematerial Company Intellectual Property, partnershipother than Contracts with shareholders, strategic alliancedirectors, officers, employees, contractors and other representatives of the Company that assign rights in Intellectual Property from such individuals to one of the Company and its Subsidiaries;
(vii) that is a collective bargaining agreement, works council agreement, labor agreement, or other Contract with a labor union (each, a “Labor Agreement”);
(viii) that is a settlement, conciliation or similar agreements Contract (A) with any Governmental Entity, (B) pursuant to which the Company or any Company Subsidiary will have any material outstanding obligation or restriction after the date of its subsidiaries is a party;
this Agreement, or (viiC) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness that contains payment obligations of the Company or any of its subsidiaries Subsidiaries in excess of $500,000;
(ix) relating to the disposition or acquisition of assets by the Company or any Subsidiary (A) in the past three years, with a value or purchase price greater than $1,000,000 is or (B) pursuant to which any potential earn-out, deferred or contingent payment obligations remain outstanding (excluding indemnification obligations in respect of representations and warranties) or may be incurred and all guarantees otherwise survive as of the date hereof that would reasonably expected to result in the receipt or making by the Company or any of its subsidiaries Subsidiaries of debt obligations future payments in excess of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger$500,000;
(x) that is a joint venture entity, a legal partnership or similar arrangement (excluding commercial agreements that do not involve the formation of an entity with any contract requiring third Person);
(xi) that provides for indemnification of any officer, director or otherwise relating to any future capital expenditures employee by the Company or any of its subsidiaries Subsidiaries, other than Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Parent;
(xii) that provides for accelerated vesting in connection with a change of control or otherwise in connection with the Merger or the transactions contemplated hereby (including as a result of any termination of employment following a change of control or the Merger); and
(xiii) that obligates the Company or any Subsidiary to make any future capital investment or capital expenditure outside the ordinary course of business and in excess of $1,000,000 500,000.
(b) Each Contract of the type described in Section 3.17(a), whether or not set forth in Section 3.17(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract”. Except for Material Contracts that have expired or terminated by their terms, as of the date hereof, all of the Material Contracts are (i) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (ii) in full force and effect, except (A) as may be limited by bankruptcy, insolvency, moratorium and other similar applicable Law affecting creditors’ rights generally and by general principles of equity and (B) as would not, individually or in the aggregate;
(xi) any contract providing for indemnification by , reasonably be expected to have a Company Material Adverse Effect. As of the date hereof, neither the Company or nor any its subsidiaries of any officer, director or employee Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, breached, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of the date hereof, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of its subsidiaries; and
the foregoing. No event has occurred or circumstances exist that (xiiwith or without notice, lapse of time or both) any contract relating would constitute such a breach or default pursuant to any acquisition (by mergerMaterial Contract or permit the termination or modification thereof or permit the acceleration or maturity of performance thereof, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material propertiesSubsidiaries, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge Knowledge of the Company, any other party thereto under thereto, except for immaterial breaches and defaults. Since June 30, 2025, the Company has not received written notice from any Person that such Company Person intends to modify in any material respect, terminate, or not renew, any Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Damadian Timothy Raymond), Merger Agreement (Fonar Corp)
Material Contracts. (a) Except for contracts (including all amendments and modifications theretox) filed as exhibits to the Company SEC Documents, Schedule 3.18(aset forth on Section 6.16(a) of the Caesars Disclosure Schedule and (y) solely with respect to subsections (i), (v) and (vi) of this Section 6.16(a), for any Contract to which CEOC or an Affiliate of Parent (other than any Company Disclosure SchedulesParty or its Subsidiaries) is party or by which CEOC or an Affiliate of Parent (other than any Company Party or its Subsidiaries) is bound which is binding upon any Company Party or its Subsidiaries in substantially the same manner as such Contract is binding upon other Subsidiaries of CEOC or Parent, sets (other than, in the case of any Contracts described in the foregoing clause (y), any Contracts which involve any payments directly by or to any Company Party or its Subsidiaries, including through an allocation to any Company Party or its Subsidiaries, in excess of the amounts set forth in subsections (i), (v) and (vi) of this Section 6.16(a)), none of the Company Parties or their respective Subsidiaries is a complete and accurate list party to or bound by any of the following Contracts as of the date of this Agreement of:(each a “Material Contract”):
(i) any contract that is required Contract that, by its terms, requires payments by any Company Party or its Subsidiaries in excess of $750,000 per annum or $1,500,000 in the aggregate for the stated term of such Contract or which may not be terminated by such Company Party or its Subsidiaries within twelve (12) months from the date of this Agreement without such Company Party or its Subsidiaries being obligated to be filed as an exhibit to a report pay any penalty, premium or filing under the Securities Act or the Exchange Actadditional payments in amounts greater than $750,000 in respect of such Contract;
(ii) any contract that involves annual payments Contract for Indebtedness of any Company Party or consideration from the Company its Subsidiaries or any Contract granting any Person a Lien (other than a Permitted Lien) on all or any part of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyPurchased Interests;
(iii) (A) any contract that contains any covenant restricting the ability of the Company Contract pursuant to which CLC or any of Company Party or its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in Subsidiaries has agreed to any material line restriction on the right of CLC or any Company Party or its Subsidiaries to use or enforce any Purchased Intellectual Property or Other Material IP, other than with respect to commercially available software, or (B) any material Contract pursuant to which CLC or any Company Party or its Subsidiaries agrees to license, encumber, transfer or sell rights in or with respect to any Purchased Intellectual Property, other than any non-exclusive licenses entered into by CLC or any Company Party or its Subsidiaries in the ordinary course of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting Contract containing any covenant materially limiting the ability of any Company Party or its Subsidiaries to engage in any person (other than line of business or in any territory or to compete with any business or Person or that otherwise materially limits any Company Party or its Subsidiaries to conducting its business in the Company or any of its subsidiaries) “most favored nation” pricing provisionsmanner it is currently conducted;
(v) any contract that provides for “exclusivity,” rights joint venture, partnership or similar Contract, which involves a sharing of first refusalrevenues, rights profits, cash flows, expenses or losses with other Persons in excess of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries)$750,000 annually;
(vi) any contract relating Contract that involves royalties payable to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any another Person in excess of its subsidiaries is a party$750,000 annually;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) Contract pursuant to which any indebtedness Company Party or its Subsidiaries has acquired a business or entity (or any equity interest therein), or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets or exclusive license and pursuant to which the Company or has any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt continuing material obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;hereof; or
(viii) any contract with other Contract or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries obligation not listed in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xiivii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in is otherwise material to any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”Party or its Subsidiaries.
(b) Prior to the date of this Agreement, the Company has provided complete (i) Each Material Contract is valid and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary binding upon each of the Company Parties or their respective Subsidiaries party thereto (and, to the Knowledge of the Caesars Parties, on all other parties thereto), in accordance with its terms and is in material full force and effect, (ii) there is no breach or violation of or material default under the terms or conditions of by any Company Party or its Subsidiaries or, to the Knowledge of the Caesars Parties, by any other party under any material provision of the Material Contract Contracts, whether or not such breach, violation or default has been waived, and (iii) no event or condition has occurred that constitutes, with respect to any Company Party or its Subsidiaries or, after to the Knowledge of the Caesars Parties, any other party, which, with notice or lapse of time or both, would constituteconstitute a breach, violation or default of, or give rise to a right of termination, modification, cancellation, foreclosure, imposition of a Lien, prepayment or acceleration under, any material default on the part provision of the Company Material Contracts. None of the Caesars Parties or any of its subsidiaries their respective Affiliates has received any written notice (or, to the knowledge Knowledge of the CompanyCaesars Parties, any oral or other party thereto under notice) of the intention of any such Company Material ContractPerson to terminate, nor has the Company or there been any of its subsidiaries received termination of, any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company The Caesars Parties have made available to Growth Partners a true, correct and complete copy of all Material Contract is a valid and binding obligation of the Company andContracts, to the knowledge of the Companytogether with all amendments, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium waivers or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtchanges thereto.
Appears in 2 contracts
Sources: Transaction Agreement (CAESARS ENTERTAINMENT Corp), Transaction Agreement (Caesars Acquisition Co)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, The Earlychildhood Disclosure Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement list, and Earlychildhood has made available to SmarterKids, true and complete copies of:
(i) any each contract that is required provides for annual payments to be filed as an exhibit to a report or filing under the Securities Act by Earlychildhood or the Exchange Actany of its Subsidiaries in excess of $150,000;
(ii) any each contract that involves annual payments or consideration from the Company of Earlychildhood or any of its subsidiaries Subsidiaries that was not entered into in the ordinary course of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltybusiness;
(iii) any contract that contains any covenant restricting the ability of the Company under which Earlychildhood or any of its subsidiaries Subsidiaries has or affiliates (including Parent after may, except by way of endorsement of negotiable instruments for collection in the Merger Closing) to: ordinary course of business and consistent with past practice, become absolutely or contingently or otherwise liable for (x) conduct the performance under any contract of any other person, firm or compete in any material line of business, corporation or (y) compete with the whole or any person part of the indebtedness or (z) operate liabilities of any other person, firm or corporation, in any geographic areaall cases, individually in excess of $1,000,000 and in the aggregate in excess of $5,000,000;
(iv) all employment agreements, consulting agreements, contracts or commitments with any contract granting to any person (employee or member of Earlychildhood's Management Committee, other than the Company those which are terminable by Earlychildhood or any of its subsidiaries) “most favored nation” pricing provisionsSubsidiaries on not more than thirty days notice without liability or financial obligation, and within each such category of agreements, contracts or commitments, which are individually in excess of $150,000;
(v) any contract that provides for “exclusivity,” rights agreements or plans, including, without limitation, any stock option, stock or equity appreciation right or stock or equity purchase plans or agreements, any of first refusalthe benefits of which will be increased, rights or the vesting of first negotiation or any similar requirement in favor benefits of which will be accelerated, by the occurrence of any person (other than of the Company transactions contemplated by this Agreement or the value of any of its subsidiaries)the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(vi) any contract relating to with any joint ventureMember, partnershipmanaging member or member of the Management Committee of Earlychildhood, strategic allianceother than in such person's capacity as a Member, managing member or member of the Management Committee, or other similar agreements any contract with any entity in which, to which the Company knowledge of Earlychildhood, any Member, managing member or member of the Management Committee or any family member of its subsidiaries is any such person has a partymaterial economic interest;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture contract that limits or other contract (collectively, “debt obligations”) pursuant to which restricts in any indebtedness of the Company material respect where Earlychildhood or any of its subsidiaries in excess Subsidiaries may conduct its or their business or the type or line of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company business that Earlychildhood or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this AgreementSubsidiaries may engage in;
(viii) any contract with or powers of attorney outstanding (other than those issued in the ordinary course of business with respect to a labor unionTax matters), guild or other employee representative material obligations or liabilities (including absolute or contingent) as guarantor, surety, cosigner, endorser, co-maker, indemnitor, or otherwise respecting the obligations or liabilities of any collective bargaining agreement or works council agreement);person.
(ix) any material contract that requires a consent containing any agreement with respect to or otherwise contains a provision relating to a any change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;; and
(x) any contract requiring each material amendment, supplement, and modification (whether oral or otherwise relating to any future capital expenditures by the Company or written) in respect of any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”foregoing.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company Earlychildhood nor any subsidiary of the Company is its Subsidiaries have breached, or received in material breach writing any claim or notice that it has breached, any of or material default under the terms or conditions of any Company material agreement, contract or commitment set forth or required to be set forth in Section 3.12 of the Earlychildhood Disclosure Schedule ("Earlychildhood Material Contracts") in such a manner as, individually or in the aggregate, is reasonably likely to have an Earlychildhood Material Adverse Effect. Except as set forth in the Earlychildhood Disclosure Schedule, each Earlychildhood Material Contract and no event or condition that has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of not expired by its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in except for those contracts, the ineffectiveness of which would not reasonably be likely to have an Earlychildhood Material Adverse Effect and, if all material respectsof the consents, except that (i) such enforcement may be subject to applicable bankruptcyapprovals, insolvencyauthorizations, reorganizationfilings, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive notifications and other forms actions listed with respect to such contract in the Earlychildhood Disclosure Schedule are obtained, taken or made, as applicable, such contract will continue, after the Effective Time, to be in full force and effect on identical terms.
(c) To the knowledge of equitable relief may Earlychildhood or its Subsidiaries, none of the parties to any Earlychildhood Material Contract have terminated, or notified Earlychildhood or any of its Subsidiaries in writing of its intent to materially reduce or terminate its business relationship with Earlychildhood or any of its Subsidiaries in the future.
(d) Neither of Earlychildhood nor any of its Subsidiaries have received written notice from any customer, or group of customers, that are under common ownership or control, and that accounted for a material percentage of the aggregate products and services furnished by Earlychildhood or any of its Subsidiaries since January 1, 1999 that such customer or group of customers has stopped or intends to stop purchasing Earlychildhood's or any of its Subsidiaries' products or services, nor has Earlychildhood or any of its Subsidiaries lost any supplier, or group of suppliers that are under common ownership or control, that accounted for a material percentage of the aggregate supplies purchased by Earlychildhood or any of its Subsidiaries since January 1, 1999.
(e) As of the Effective Time, Earlychildhood will have terminated the Executive Management Agreement, dated as of May 5, 1999 by and between Earlychildhood and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Sons, L.L.C., a Delaware limited liability company (the "Executive Management Agreement"), and, from and after the Effective Time, there will be subject no further obligations or liabilities, including payment obligations, outstanding or due thereunder. The fees payable to equitable defenses ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Sons, L.L.C. between the date hereof and the Effective Time pursuant to the discretion of the court before which any proceeding therefor may be broughtExecutive Management Agreement shall not exceed $25,000 per month.
Appears in 2 contracts
Sources: Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc), Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc)
Material Contracts. (a) Except for contracts Subsections (including all amendments and modifications theretoi) filed as exhibits to the Company SEC Documents, Schedule 3.18(athrough (xv) of Section 2.19(a) of the Company Disclosure Schedules, sets forth Schedule each contain a complete and accurate list listing as of the date hereof of this Agreement ofthe following Contracts to which the Company or any Subsidiary of the Company is a party, together with all amendments, waivers or other changes thereto:
(i) each Contract which is reasonably likely to involve (A) annual payments by or to the Company or any contract that is required to be filed as an exhibit to a report Subsidiary of the Company of more than $750,000 or filing under (B) aggregate payments by the Securities Act Company or any Subsidiary of the Exchange ActCompany 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 with any contract that involves annual payments current director, officer, employee or consideration from consultant of the Company or any Subsidiary of its subsidiaries the Company with an annual salary in excess of more $150,000, other than $1,000,000 during any twelve (12) month period and is not those that are terminable at will by the Company or its subsidiary any Subsidiary of the Company on 90 no more than thirty (or fewer30) days’ days notice without penaltyliability or financial obligation and (C) any Contract with any Related Party other than the grant of Company Options or Company Restricted Stock;
(iii) all material broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising or marketing Contracts, other than advertising agreements entered into in the ordinary course of business;
(iv) all contracts and agreements relating to any contract Indebtedness or any Liens upon any properties or assets of the Company or any Subsidiary of the Company as security for such Indebtedness;
(v) all Government Contracts;
(vi) all Contracts that contains any covenant restricting (A) limit the ability of the Company and/or any Subsidiary or affiliate of, or successor to, the Company, or, to the Knowledge of the Company, any executive officer of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or Company, to compete in any material line of business, (y) compete business or with any person Person or (z) operate in any geographic area;
area or during any period of time or to develop, market, sell, distribute or otherwise exploit Company Services or Products, (ivB) grant exclusive rights of any contract granting to any person (other than the Company type or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” scope or rights of first refusal, rights of first negotiation or similar rights or terms to any similar requirement in favor 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 person 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 than 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) all material powers of attorney and proxies entered into by or granted to the Company or any of its subsidiaries)Subsidiaries, whether limited or general, revocable or irrevocable;
(vixi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or Contracts entered into by the Company or any of its subsidiaries Subsidiaries and any other Person providing for the acquisition by the Company or such Subsidiary (including by merger, consolidation, acquisition of debt obligations stock or assets or any other business combination) of any Person or division or unit thereof or any material amount of assets of such other personPerson, and information identifying the maximum amounts, if any, that are still payable or potentially payable to any other Person under such Contracts pursuant to any post-closing adjustment to the purchase price (including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) under any contract with or with respect to a labor union, guild “earnout” or other employee representative (including any collective bargaining agreement or works council agreementsimilar provision);
(ixxii) any contract that requires a consent to or otherwise contains a provision relating to a change of controlall confidentiality, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures non-disclosure and/or standstill agreements entered into by the Company or any of its subsidiaries in excess of $1,000,000 Subsidiaries (other than in the aggregateordinary 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;
(xixiii) any contract providing for 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 Person; and
(xiv) all other Contracts entered into by the Company or any its subsidiaries of any officer, director or employee Subsidiary of the Company or any other than in the ordinary course of business, which are material to the Company and its subsidiaries; and
(xii) any contract relating to any acquisition (by mergerSubsidiaries, consolidation, acquisition of all or substantially all the conduct of the assets business thereof, or otherwise) from any person the termination or divestiture cancellation of which would have or disposition by the could reasonably be expected to have a Company or any of its subsidiaries Material Adverse Effect. The Contracts required to any person of material properties, assets, capital stock or other equity interests, be listed in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses subsections (i) through (xiixiv) of this Section 3.18(a2.19(a) (of the Company Disclosure Schedule, together with the Contracts set forth in Sections 2.12(l) and each contract 2.12(m) of the Company Disclosure Schedule, the Lease Agreements and any Material Contracts entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this accordance with Section 3.18(a) if such contract existed on the date of this Agreement) is 4.2 are referred to herein as a “Company Material ContractContracts”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereofCustomers. Section 2.19(b) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is Disclosure 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 material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part Section 2.19(b) of the Company Disclosure Schedule, none of such Managed Practices has indicated in writing or any of its subsidiaries or, orally to the knowledge of the Company, any other party thereto under of its Subsidiaries or any such Company Material ContractHospital Joint Venture any intent to discontinue or alter in a manner adverse to the Company, nor has the Company or any of its subsidiaries received Subsidiaries or any notice 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 (and the Company has no Knowledge of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtbreach).
Appears in 2 contracts
Sources: Merger Agreement (McKesson Corp), Merger Agreement (US Oncology Holdings, Inc.)
Material Contracts. (a) Except for contracts as set forth in Section 3.18 (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aa) of the Company Disclosure SchedulesSchedule, sets forth a complete and accurate list as none of the date Group Companies is a party to or bound by any Contract (which, in the aggregate, is required to be listed in Section 3.18 (a) of this Agreement of:the Disclosure Schedule, being a "Material Contract"):
(i) Any contract with respect to any contract that is required to be filed as an exhibit to a report broker, distributor, trader, manufacturer's representative, franchise, agency, continuing sales or filing under the Securities Act purchase, promotion, market research, marketing, consulting or the Exchange Actadvertising;
(ii) any Any contract that involves annual payments relating to indebtedness, guarantee or consideration from mortgage;
(iii) Any contract under which the Target Company or any of its subsidiaries of more than $1,000,000 during Subsidiaries provides funds to any twelve (12) month period and is not terminable by the Company Person, or its subsidiary on 90 (makes any loan, capital contribution or fewer) days’ notice without penaltyother investment, or undertakes any liability or obligation;
(iiiiv) Any contract with any Governmental Authority;
(v) Any contract that contains with any covenant restricting the ability Affiliated Person of the Target Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic areaSubsidiaries;
(ivvi) any contract granting to any person (Any employment or consultancy Contract, other than employment Contracts covered under paragraph (v), involving in the aggregate future or potential liability in excess of RMB200,000;
(vii) Any contract that limits or purports to limit the ability of the Target Company or any of its subsidiaries) “Subsidiaries to compete in any line of business or with any Person or in any geographical area or during any period of time, or the right of a Group Companies to sell or purchase from or engage any Person, or grants to the other Party or any third party "most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation " status or any similar requirement in favor special discounts of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreementtype;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any Any contract that requires a consent to or otherwise contains a provision relating to a "change of control, " or that would prohibit or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated hereinby this Agreement or the Ancillary Documents;
(ix) The leasing or leasing by the Target Company or any of its Subsidiaries, including or the Mergerholding, use or provision for the use by any Person (other than the Target Company or any of its Subsidiaries) of (A) any real properties or (B) any tangible personal properties which involve, under clause (C), future or potential liabilities or accounts receivable in excess of the aggregate amount of RMB200,000;
(x) Any contract for the sale and purchase of real properties or tangible personal properties with a value in excess of RMB200,000;
(xi) Any contract giving or claiming indemnification from any Person in respect of any liability in respect of any present or former business of the Target Company, any of its Subsidiaries or any predecessor Persons;
(xii) Any contract requiring relating, in whole or otherwise in part, to any Intellectual Property rights;
(xiii) Any contract relating to any future capital expenditures by a joint venture, partnership, merger, assets or stock purchase or divestiture relating to the Target Company or any of its subsidiaries in excess of $1,000,000 in the aggregateSubsidiaries;
(xixiv) Any hedging, futures, options or other derivative contracts;
(xv) Any contract to purchase any contract providing for indemnification by the Company debt or any its subsidiaries equity securities or other ownership interest of any officerPerson or to issue or convert any obligation, director instrument or employee security into debt or equity securities or other ownership interest of the Target Company or any of its subsidiaries; andSubsidiaries;
(xiixvi) any Any settlement contract relating to any acquisition administrative or judicial proceedings in the past five years;
(by merger, consolidation, acquisition xvii) Any contract that results in any Person holding a power of all or substantially all of attorney relating to the assets or otherwise) from any person or divestiture or disposition by the Target Company or any of its subsidiaries to Subsidiaries or any person of material properties, assets, capital stock or other equity interests, their respective businesses in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Target Company or any of its subsidiaries is a party Subsidiaries; and
(xviii) Any other contract whether or not made in the ordinary course of business, if (A) involves future or potential liabilities or accounts receivable (as the case may be) in excess of RMB200,000 per annum or RMB400,000 during the current contract term; (B) has terms in excess of one year and cannot be cancelled by which any the Target Company or its Subsidiaries without payment of them is bound. Each such contract described in any of clauses penalty or further payment and without 30 days' notice; or (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this AgreementC) is referred material to herein the business, operations, assets, financial condition, results of operations or prospects of the Group Companies taken as a “Company Material Contract”whole.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid legal, valid, binding and binding obligation of the Company and, to the knowledge of the Companyenforceable agreement, is in full force and effect, enforceable in accordance with its terms in all material respectsand, except that as set forth in Section 3.18 (iB) such enforcement may be subject of the Disclosure Schedule, will continue in full force and effect on identical terms immediately following the Closing Date. None of the Target Company or any of its Subsidiaries, or to applicable bankruptcythe Knowledge of the Sellers, insolvencyany other party, reorganizationis in breach or violation (with or without notice or lapse of time or both) in default under any Material Contract, moratorium nor has the Target Company or other similar Laws, now or hereafter in effect, any of its Subsidiaries received any claim 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 such breach, violation or default. The Sellers have delivered or made available to the discretion Buyer true and complete copies of the court before which all Material Contracts, including any proceeding therefor may be broughtamendments thereto.
Appears in 2 contracts
Sources: Share Purchase Agreement (Hainan Oriental Jiechuang Investment Partnership (Limited Partnership)), Share Purchase Agreement (Aesthetic Medical International Holdings Group LTD)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.21(a) of the Company Disclosure SchedulesLetter contains a true, sets forth a complete and accurate correct list as of the date of this Agreement of:
(i) any contract that is required following Contracts to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from which the Company or any of its subsidiaries of more than $1,000,000 during Subsidiaries is a party or by which any twelve (12) month period and is not terminable by the Company property or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability asset of the Company or any of its subsidiaries or affiliates Subsidiaries is bound, in each case as of the date of this Agreement, other than Company Plans listed in Section 3.18(a) of the Company Letter (including Parent after collectively, the Merger Closing“Material Contracts”):
(i) to: (x) conduct or compete each Contract that limits in any material respect the freedom of the Company, any of its Subsidiaries or any of its Affiliates to compete or engage in any line of business, (y) compete business or geographic region or with any person Person, sell, supply or (z) operate distribute any product or service or that otherwise has the effect of restricting in any geographic areamaterial respect the Company, its Subsidiaries or Affiliates, taken as a whole, from the development, marketing or distribution of products and services;
(ivii) each partnership, joint venture or limited liability company agreement (other than any contract granting such agreement solely between or among the Company and its wholly owned Subsidiaries) or similar Contract that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract entered into since December 31, 2014: (A) relating to the disposition or acquisition by the Company or any person of its Subsidiaries of any business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer, or similar transaction); or (B) pursuant to which the Company or any of its Subsidiaries will acquire or is obligated to acquire any ownership interest or make an investment (other than the Company or any of its subsidiaries) “most favored nation” pricing provisionsSubsidiaries), in each case, other than such Contracts that are immaterial to the Company and its Subsidiaries, taken as a whole;
(viv) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation each Contract with respect to the acquisition or any similar requirement in favor disposition of any person Person (whether by merger, amalgamation, consolidation or other than business combination, sale of assets, sale of shares in the Company share capital or any of its subsidiaries);
(vi) any contract relating to any joint ventureother voting securities, partnershiptender offer, strategic allianceexchange offer, or other similar agreements transaction) pursuant to which the Company or any of its subsidiaries is Subsidiaries has (A) material continuing indemnification obligations (other than in the ordinary course of business in connection with the development, sale or licensing of Company Products) or (B) any “earn-out” or similar contingent payment obligations, in each case (x) other than any such obligations that are immaterial to the Company and its Subsidiaries, taken as a partywhole or (y) other than any Contract that provides solely for the acquisition or disposition of inventory, raw materials, equipment or products in the ordinary course of business;
(v) any and all Contracts required to be listed on (A) Section 3.16(f) or (B) Section 3.16(g) of the Company Letter;
(vi) each Contract that grants any right of first refusal or right of first offer in favor of a Third Party or that materially limits the ability of the Company, any of its Subsidiaries or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or material assets;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) each Contract pursuant to which a third party is granted any indebtedness of exclusivity rights (other than customization work for customers relating to Company Products) or “most favored nations” provisions or minimum use, supply or display requirements that is binding on the Company or any its Affiliates, in each case, which Contract is not terminable by the Company and each of its subsidiaries in excess of $1,000,000 is outstanding Affiliates party to such Contract upon ninety (90) or may be incurred and all guarantees of or less days’ notice by the Company or any of its subsidiaries of debt obligations relevant Affiliates without the requirement of any payment, penalty, premium, fee, liability or other person, including the respective aggregate principal amounts outstanding as of the date of this Agreementobligations;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or than instruments providing for indebtedness that would or could reasonably be expected to preventnot, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
, exceed One Million Dollars (xi$1,000,000), each Contract that (A) any contract is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indemnification by indebtedness (including obligations under any capitalized leases but excluding agreements between the Company or and any its subsidiaries of any officer, director or employee wholly owned Subsidiary of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all between wholly owned Subsidiaries of the assets Company) or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as pursuant to which the Company or any of its subsidiaries Subsidiaries guarantees any such indebtedness of any other Person (other than the Company or another wholly owned Subsidiary of the Company), (B) materially restricts the Company’s and its Subsidiaries’ (taken as a whole) ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset of the Company or its Subsidiaries that is material to the Company and its Subsidiaries, taken as a party whole or by which (D) is an interest rate derivative, currency derivative, forward purchasing, swap or other hedging contract;
(ix) each collective bargaining agreement and each Contract with any labor union, works council or similar organization;
(x) each Contract that provides for a settlement or conciliation (A) with any Governmental Authority that materially (1) restricts or imposes material obligations upon the Company or its Subsidiaries (taken as a whole) or (2) materially disrupts the business of the Company and its Subsidiaries (taken as a whole) as currently conducted or (B) that would require the Company or any of them is bound. Each such contract described in any its Subsidiaries to pay consideration of clauses more than Five Hundred Thousand Dollars (i$500,000) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been Agreement; and
(xi) each Contract not otherwise described in any of clauses (i) through (xii) other subsection of this Section 3.18(a3.21(a) if such contract existed on the date of this Agreement) is referred to herein as that would constitute a “Company Material Contract”material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K as promulgated by the SEC) with respect to the Company.
(b) Prior to the date A true, correct and complete copy of this Agreement, the Company has provided complete and accurate copies of all Company each Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) Contract in effect as of the date of this Agreement has been made available to Parent and Buyer or publicly filed with the SEC prior to the date of this Agreement.
. Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ci) Neither the Company nor any subsidiary each Material Contract is a valid, binding and enforceable obligation of the Company or one of its Subsidiaries, on the one hand, and, to the knowledge of the Company as of the date of this Agreement, of the other party or parties thereto, on the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and each Material Contract is in material breach full force and effect, (ii) the Company and each of or material default its Subsidiaries has performed all obligations required to be performed by it under the terms or conditions of any Company each Material Contract and no event or condition to date and, to the knowledge of the Company as of the date of this Agreement, each other party to each Material Contract has occurred that constitutesperformed all obligations required to be performed by it under such Material Contract to date, or(iii) as of the date of this Agreement, after notice or lapse of time or both, would constitute, a material default on the part none of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor Subsidiaries has the Company or any of its subsidiaries received any written notice of any such material defaultany, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, none of the Company or any of its Subsidiaries is in full force and effectin, enforceable in accordance with its terms in all default or material respects, except that breach under (inor 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) 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 any Material Contract and (iiiv) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion as of the court before which date of this Agreement, neither the Company nor any proceeding therefor may be broughtof its Subsidiaries has received any written notice from any other party to any such Material Contract that such party intends to terminate, or not renew, any such Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement (Mobileye N.V.), Purchase Agreement (Intel Corp)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aset forth in Section 3.15(a) of the Company Disclosure SchedulesLetter, sets forth a complete and accurate list as of the date of this Agreement of:Agreement, neither the Company nor any of its Subsidiaries is a party to, or bound by, any of the following (each, a “Company Material Contract”):
(i) any contract Contract that is required to be filed a “material contract” (as an exhibit to a report or filing under the Securities Act or such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) any contract Contract relating to Indebtedness for money borrowed or a financial guaranty (other than between or among the Company and its Subsidiaries) in excess of $5,000,000;
(iii) any joint venture, partnership or limited liability company agreements or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such agreements or arrangements solely between or among the Company and/or its wholly-owned Subsidiaries;
(iv) any collective bargaining agreement or other material Contract to or with any labor union or other employee representative of a group of employees;
(v) any Contract required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act, other than any such Contract solely between or among the Company and/or its wholly owned Subsidiaries;
(vi) any Contract that involves annual payments (A) limits or consideration from restricts the Company or any of its subsidiaries Subsidiaries (or would, from and after the Effective Time, limit or restrict Parent or any of more than $1,000,000 during its Affiliates) from competing in any twelve line of business or with any Person or competing or operating in any market or geographic area, (12B) month period and is not terminable by contains exclusivity provision obligations binding on the Company or (C) grants any “most favored nation” or similar right in favor of any third party, and, in the case of each of clauses (A) through (C), that is material to the Company and its subsidiary on 90 (or fewer) days’ notice without penaltySubsidiaries, taken as a whole;
(iiivii) any contract Contract that contains is an acquisition agreement or divestiture agreement pursuant to which, (A) the Company reasonably expects that it will be required to pay total consideration (including assumption of debt) after the date of this Agreement in excess of $5,000,000, or (B) any covenant restricting other Person will have the ability right to acquire any assets of the Company or any of its subsidiaries or affiliates (including Parent Subsidiaries after the Merger Closing) to: date of this Agreement (x) conduct or compete other than in any material line the ordinary course of business, (y) compete with any person a fair market value or (z) operate purchase price in any geographic areaexcess of $5,000,000;
(ivviii) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements Contract pursuant to which the Company or any of its subsidiaries is a partySubsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $5,000,000 in the aggregate;
(viiix) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) Contract material to the Company pursuant to which (A) a third party grants the Company or any indebtedness of its Subsidiaries a right to use any Intellectual Property material to the operation of the businesses conducted by the Company and its Subsidiaries or (B) the Company or any of its Subsidiaries grants to a third party the right to use any Owned Intellectual Property, but excluding, in either case, (x) any Contracts with customers entered into in the ordinary course of business, (y) employee nondisclosure agreements and employee Intellectual Property assignment agreements and (z) Contracts with respect to licenses for the use of “off the shelf” software that is readily commercially available on a “click wrap” or other similar basis for an annual fee of less than $500,000;
(x) any Contract entered into since April 29, 2018 involving any resolution or settlement of any actual or threatened Action involving the Company or any of its Subsidiaries involving (A) a payment in excess of $5,000,000 or (B) any material ongoing requirements or restrictions on the Company or any of its Subsidiaries;
(xi) any material Contract between the Company or any of its Subsidiaries and a Governmental Authority;
(xii) any Contract that restricts the payment of dividends or distributions in respect of any capital stock or other equity interests of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;Subsidiaries; or
(viiixiii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change Contract the termination of control, or that which would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating be material to any future capital expenditures by the Company or any of and its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein Subsidiaries taken as a “Company Material Contract”whole.
(b) Prior to As of the date of this Agreement, the Company has provided made available to Parent true, correct and complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this AgreementContracts.
(c) Neither Except as set forth or described on Section 3.15(c) of the Company Disclosure Letter, (i) neither the Company nor any subsidiary of its Subsidiaries nor, to the Knowledge of the Company, any other party to a Company Material Contract, is in material breach of or violation of, or in material default under under, any Company Material Contract, and no event has occurred that would result in a material breach or violation of, or a material default under, any Company Material Contract or cause or permit the terms termination, cancellation or conditions acceleration of any material right or obligation under, any provision of any Company Material Contract and no event (in each case, with or condition has occurred that constituteswithout notice, or, after notice or the lapse of time or both, would constitute, a material default on the part of ) by the Company or any of its subsidiaries Subsidiaries or, to the knowledge Knowledge of the Company, any other party thereto under any such and (ii) each Company Material Contract, nor has Contract is valid and binding on each of the Company or any of and its subsidiaries received any notice of any such material defaultSubsidiaries, event or condition. To as applicable, and, to the knowledge Knowledge of the Company, no each other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid thereto and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respectsterms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation, liquidation, preferential transfer, moratorium or other and similar Laws, Laws now or hereafter in effect, relating to affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (ii) equitable remedies regardless of specific performance whether enforcement is sought in a proceeding at equity or law), and injunctive is in full force and other forms effect with respect to each of equitable relief may be subject to equitable defenses the Company and its Subsidiaries, as applicable and, to the discretion Knowledge of the court before which Company, each other party thereto, in the case of each of the foregoing, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. Neither the Company nor any proceeding therefor may be broughtof its Subsidiaries 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 respects the terms of any such Company Material Contract (except in accordance with the terms thereof).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Barnes & Noble Inc), Merger Agreement (Barnes & Noble Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as As of the date of this Agreement of:
Agreement, except for (i) any contract that is required to be this Agreement, (ii) the Company Employee Benefit Plans, (iii) contracts filed as an exhibit to or incorporated by reference in a report Company SEC Document filed prior to the date hereof, (iv) contracts related to properties or filing under operations that have been sold or otherwise disposed of or are in the Securities Act process of being sold or otherwise disposed of to the Exchange Actextent such sales and/or dispositions have been disclosed in the Company SEC Reports, or (v) as set forth on Section 2.21(a) of the Company Schedule, neither the Company nor any of its subsidiaries is a party to or bound by any contract (whether written or oral) which is:
(A) a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(iiB) a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than those between the Company and its subsidiaries) relating to indebtedness in an amount in excess of $5 million individually;
(C) a contract, lease or license (including any contract that involves annual payments or consideration from seismic license agreements) (x) pursuant to which the Company or any of its subsidiaries paid amounts in excess of more than $1,000,000 during any twelve (12) 5 million individually within the 12 month period and prior to the date of this Agreement or (y) that is not terminable by material to the Company or and its subsidiary on 90 (or fewer) days’ notice without penaltysubsidiaries taken as a whole;
(iiiD) any contract that contains any covenant restricting a contract, which to the ability knowledge of the Company purports to materially limit the right of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct to engage or compete in any material line of business, (y) business in which the Company or its subsidiaries is engaged or to compete with any person or (z) operate in any geographic arealocation;
(ivE) any a contract granting that creates a partnership or joint venture or similar arrangement with respect to any person (other than significant portion of the business of the Company or any of and its subsidiaries) “most favored nation” pricing provisions;subsidiaries taken as a whole; or
(vF) a settlement or similar agreement with any contract that provides for “exclusivity,” rights Governmental Entity or order or consent of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements a Governmental Entity to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or subject involving future performance by the Company or any of its subsidiaries of debt obligations of any other person, including which is material to the respective aggregate principal amounts outstanding Company and its subsidiaries taken as a whole. All contracts of the date type described in this Section 2.21(a) together with the contracts for the sale of this Agreement;
(viii) Hydrocarbons produced from any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring Company’s or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 subsidiaries’ properties described in the aggregate;
(xiReserve Reports that are not terminable on 60 days’ notice and are set forth on Section 2.21(a) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by mergerSchedule, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is are referred to herein as a the “Company Material ContractContracts”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect Other than as a result of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of expiration or material default under the terms or conditions termination of any Company Material Contract in accordance with its terms and no except as would not have, either individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is valid and binding on the Company and any of its subsidiaries that is a party thereto, as applicable, and in full force and effect, (ii) the Company and each of its subsidiaries has in all material respects performed all obligations required to be performed by it to date under each Company Material Contract, and (iii) neither the Company nor any of its subsidiaries has knowledge of, or has received notice of, the existence of any event or condition has occurred that which constitutes, or, after notice or lapse of time or both, would will constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto or their counterparties under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Pogo Producing Co), Merger Agreement (Plains Exploration & Production Co)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.20(a) of the Company Disclosure SchedulesLetter sets forth, sets forth a complete and accurate list as of the date of this Agreement ofAgreement, a correct and complete list of each of the following types of Contracts to which the Company, any Company Sharing Company (to the extent applicable) or any of their respective Subsidiaries is a party, or by which any of their respective properties or assets is bound:
(i) each Contract that, (A) limits or restricts the Company, any contract Company Sharing Company or any of their Subsidiaries from competing in any line of business or with any Person in any geographic region, (B) contains exclusivity obligations or restrictions binding on the Company, any Company Sharing Company or any of their respective Subsidiaries, (C) requires the Company, any Company Sharing Company or any of their respective Subsidiaries to conduct any business on a “most favored nations” basis with any third party or (D) provides for rights of first refusal or offer or any similar requirement or right in favor of any third party in respect of a Minority Investment Entity, and, in the case of each of clauses (A) through (D), that is required material to be filed the Company and its Subsidiaries, taken as an exhibit to a report or filing under the Securities Act or the Exchange Actwhole;
(ii) any contract each Contract that involves annual payments is a joint venture, partnership, limited liability company or consideration from similar agreement that is material to the Company or any of and its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltySubsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $10 million individually;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $5 million;
(v) each Contract that is an acquisition agreement or a divestiture agreement or agreement for the sale, lease or license of any contract that contains business or properties or assets of or by the Company (by merger, purchase or sale of assets or stock) entered into since January 1, 2016 pursuant to which (A) the Company has any covenant restricting outstanding obligation to pay after the ability date of this Agreement consideration in excess of $5 million or (B) any other Person has the right to acquire any assets of the Company or any of its subsidiaries or affiliates (including Parent Subsidiaries after the Merger Closing) to: date of this Agreement with a fair market value or purchase price of more than $5 million, excluding, in each case, (x) conduct or compete in any material line of business, Contract relating to Program Rights and (y) compete acquisitions or dispositions of supplies, inventory or products in connection with any person the conduct of the Company’s and its Subsidiaries’ business or (z) operate of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in any geographic area;
(iv) any contract granting to any person (other than the conduct of business of the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries)Subsidiaries;
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements each Contract pursuant to which the Company or any of its subsidiaries is a partySubsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $5 million in the aggregate;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant Contract relating to Program Rights under which any indebtedness of it would reasonably be expected that the Company or any of and its subsidiaries Subsidiaries would make annual payments in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement5 million per year;
(viii) any contract network affiliation Contract (or similar Contract) with ABC, CBS, Fox, NBC, CW or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement)MyNetworkTV;
(ix) any contract that requires a consent to or otherwise contains a provision Contract relating to a change cable or satellite transmission or retransmission with MVPDs that reported more than 50,000 paid subscribers to the Company, any Company Sharing Company or any of control, their respective Subsidiaries for September 2018 with respect to either (A) the Company’s WGN America cable service or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger(B) at least one Company Station;
(x) any contract requiring or otherwise relating to Contract that is a Sharing Agreement and any future capital expenditures by related option agreement (other than those among the Company or any of and its subsidiaries in excess of $1,000,000 in the aggregateSubsidiaries);
(xi) any contract providing Contract that is a channel sharing agreement with a third party or parties with respect to the sharing of spectrum for indemnification by the Company operation of two (2) or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; andmore separately owned television stations;
(xii) any contract relating to Contract governing a Company Related Party Transaction;
(xiii) any acquisition material Contract with a Governmental Authority (by merger, consolidation, acquisition of all or substantially all other than as disclosed on Section 3.12 of the assets Company Disclosure Letter);
(xiv) any material collective bargaining agreement or otherwiseother material Contract with any labor organization;
(xv) from any person or divestiture or disposition Contract not terminable at will by the Company or its Subsidiary for the employment of any of its subsidiaries to any person of material propertiesexecutive officer or individual employee at the vice president level or above on a full-time, assets, capital stock part-time or other equity interests, in each case, involving payments consulting basis with base compensation in excess of $1,000,000; in each case 350,000;
(xvi) any Contract (other than those for such contracts as Program Rights) pursuant to which the Company or any of its subsidiaries Subsidiaries has sold or traded commercial air time in consideration for property or services with a value in excess of $500,000 in lieu of or in addition to cash;
(xvii) each Contract that is required to be filed by the Company as a party “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; and
(xviii) any Contract not otherwise disclosed in Section 3.20 of the Company Disclosure Letter (other than those for Program Rights) under which it was reasonably expected that the Company and its Subsidiaries would make annual payments of $3 million or more during a calendar year, except for those Contracts that can be cancelled by which any of them is boundthe Company without cause on less than 90 days’ notice. Each such contract Contract of the type described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreementxviii) is referred to herein as a “Company Material Contract”.
(b) Prior Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and 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, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Nexstar Media Group, Inc.), Agreement and Plan of Merger (Tribune Media Co)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as As of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of businesshereof, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides except for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change none of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party to or bound by any Contract:
(i) that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) under which the Company or any of its subsidiaries is, or is reasonably likely to be, entitled to receive revenues of more than $75,000 in any calendar year;
(iii) under which the Company or any of its subsidiaries is or is reasonably likely to become subject to any obligation to pay a liability of more than $75,000 in any calendar year;
(iv) that creates a Lien on (A) any property or asset of the Company or any of its subsidiaries other than Permitted Liens or (B) any Shares;
(v) that constitutes a Real Property Lease;
(vi) under which the Company or any of its subsidiaries has granted or received a license or sublicense or under which the Company or such subsidiary is obligated to pay, or has the right to receive, a royalty, license fee or similar payment, in each case that is material to the Company;
(vii) between the Company or any of its subsidiaries, on the one hand, and any person that holds more than 5% of the Company Common Stock, or any Related person or affiliate of any such person, on the other;
(viii) involving a share of profits or losses by the Company or any of its subsidiaries with any other person, including any joint venture, partnership or similar agreement;
(ix) containing covenants that in any way purport to restrict the business activity of the Company or any of its subsidiaries or limit the freedom of the Company or any of its subsidiaries to engage in any line of business or to compete with any person;
(x) other than solely among wholly-owned subsidiaries of the Company, governing the borrowing of money, the Guarantee or the repayment of Indebtedness or conditional-sale arrangements or interest-rate- or currency-hedging activities, in each case, in an amount in excess of $75,000;
(xi) granting to any person a first refusal, a first offer or similar preferential right to purchase or acquire any material right, asset or property of the Company or any of its subsidiaries or any Shares;
(xii) involving a material distributor, sales representative or broker arrangement that by its express terms is not terminable by the Company or any of its subsidiaries at will or by which giving notice of 30 days or less, without liability;
(xiii) involving the acquisition by the Company or any of them its subsidiaries of any business enterprise whether by stock or asset purchase or otherwise;
(xiv) entered into by the Company or any of its subsidiaries outside the ordinary course of business and under which the Company and its subsidiaries, taken as a whole, could have liability in an aggregate amount in excess of $75,000;
(xv) with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture that is boundmaterial to the business of the Company and the subsidiaries, taken as a whole; or
(xvi) with respect to any acquisition 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 $20,000. Each such contract Contract described in any of clauses (i) through (xiixvi) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) above is referred to herein as a “Company Material Contract.”.
(b) Prior Each of the Material Contracts is in full force and effect and valid and binding on the Company and each of its subsidiaries party thereto and, to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as knowledge of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company Company, each other party thereto. There is in no material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of by the Company or any of its subsidiaries or, to the knowledge of the Company, by any other party thereto under any such Company Material Contractparty, nor and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a material default thereunder by the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company andor, to the knowledge of the Company, is in full force and effectby any other party. None of the Company, enforceable in accordance with any of its terms in all material respectssubsidiaries or, 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 knowledge of the court before which Company, any proceeding therefor may be broughtother party to any Material Contract has terminated, or purported to terminate, any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Ace Comm Corp), Merger Agreement (Ace Comm Corp)
Material Contracts. (a) Except for contracts (including all amendments this Agreement, the Plans and modifications thereto) filed as exhibits to the Company SEC DocumentsESPP, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement ofAgreement, neither the Company nor any Subsidiary of the Company is a party to any Contract:
(i) any contract that is required to be filed by the Company in the Company SEC Reports as an exhibit a “material contract” pursuant to a report or filing Item 601(b)(10) of Regulation S-K under the Securities Act or the Exchange Actthat has not been so filed;
(ii) any contract that involves annual payments (A) limits, or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting purports to materially limit, the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or Affiliates to compete in any material line of business, (y) compete business or within any geographic area or with any person Person or (zB) operate in contains any geographic area;
(iv) any contract granting to any person (other than exclusivity or similar provision binding upon the Company or any of its subsidiariesSubsidiaries that is material to the Company’s business, taken as a whole;
(iii) “most favored nation” pricing provisionsrelating to Indebtedness for borrowed money for a principal amount in excess of $1,000,000, other than Contracts among the Company or its Subsidiaries;
(iv) between the Company and any of its directors, officers or Affiliates (other than (x) Contracts not material to the conduct of the business of the Company and its Subsidiaries, or (y) any Contract solely between or among the Company or its Subsidiaries);
(v) any contract that provides for “exclusivity,” rights of first refusalis a license, rights of first negotiation sublicense, assignment, option or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract Contract relating to the Company’s material Intellectual Property Rights, including any joint venture, partnership, strategic alliance, or other similar agreements such Contract pursuant to which the Company or any of its subsidiaries Subsidiaries is a party;
(vii) granted any loan agreementright to use, credit agreementis restricted in its rights to use or register or permits any other Person to use, note, debenture, bond, mortgage, guarantee, indenture enforce or other contract (collectively, “debt obligations”) pursuant to which register any indebtedness Intellectual Property Rights of the Company or (other than any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild enterprise software license or other employee representative (including any collective bargaining agreement license to use commercial off-the-shelf computer software under nondiscriminatory pricing terms or works council agreementlicenses contained in service contracts to the extent the licenses contained therein are incidental to such contract, non-exclusive and granted in the ordinary course of business);
(ixvi) that provides for any contract that requires a consent to most favored nation provision or otherwise contains a provision relating to a change of control, equivalent preferential pricing terms or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as similar obligations to which the Company or any of its subsidiaries Affiliates is subject, which is material to the Company and the its Subsidiaries;
(vii) that is a party purchase, sale or supply Contract that (x) contains volume requirements or commitments, exclusive or preferred purchasing arrangements or promotional requirements and (y) has more than one year remaining in the term of the Contract and requires in excess of $1,000,000 in remaining obligations;
(viii) involving future payments, capital expenditures, performance of services or delivery of goods or materials to or by which the Company and its Subsidiaries of an amount or value reasonably expected to exceed $1,000,000 in the aggregate during the 12 month period following the date hereof;
(ix) entered into during the past three years involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of a business or capital stock or other equity interests of another Person for aggregate consideration (in one or a series of related transactions) under such Contract of $1,000,000 or more;
(x) that is a collective bargaining agreement or other Contract with any labor union or other employee representative or group;
(xi) that is a partnership or joint venture agreement or similar Contract or relates to an equity investment that in each case is material to the Company and its Subsidiaries;
(xii) that is for a lease, use or occupancy of real or personal property of the Company or its Subsidiaries providing for annual rentals of $1,000,000 or more;
(xiii) involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of them its Subsidiaries or income or revenues related to any product of the Company or any of its Subsidiaries, which is boundlikely to involve the payment of consideration of more than $1,000,000 in the aggregate over the remaining term of such Contract;
(xiv) with any Governmental Entity to which the Company or any of its Subsidiaries is a party, other than individual Contracts involving aggregate consideration during the term of the Contract of less than $1,000,000;
(xv) under which the Company or any of its Subsidiaries has advanced or loaned any amount of money to any of its officers, directors, employees or consultants, in each case with a principal amount in excess of $1,000,000 and in each case has not been repaid prior to the date hereof; or
(xvi) that commits the Company or any of its Affiliates to enter into any of the foregoing. Each such contract described Contract in any of clauses clause (i) through clause (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreementxvi) is referred to herein as a “Company Material Contract.”.
(b) Prior Except as would not reasonably be expected to be material to the date of this AgreementAcquired Companies, the Company has provided complete and accurate copies of all Company Material Contracts taken as a whole, (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereofi) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any each Company Material Contract is valid and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default binding on the part of the Company or any of its subsidiaries orSubsidiaries and in full force and effect, except as enforceability may be limited by the Enforceability Exceptions, (ii) no Acquired Company, nor to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any a Company Material Contract is in material breach or violation of, or default under, or has taken or failed to take any action which, with or without notice, lapse of time, or material both, would constitute a default under the terms or conditions of provisions of, any Company Material Contract. Each , (iii) the Acquired Companies have not received any written claim or notice of default under any Company Material Contract is a valid and binding obligation of (iv) the Company and, has not received any written notice in writing from any person that such person intends to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which terminate any proceeding therefor may be broughtCompany Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Innoviva, Inc.), Merger Agreement (Entasis Therapeutics Holdings Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) this Agreement, the Company Benefit Plans or Contracts filed by the Company with the SEC as exhibits to its Annual Report on Form 10-K for the Company SEC Documentsfiscal year ended December 31, Schedule 3.18(a) 2005 or to subsequent Exchange Act reports filed prior to the date hereof, Section 3.21 of the Company Disclosure Schedules, Letter sets forth a complete and accurate list as all of the date of this Agreement of:
(i) any contract that is required following Contracts to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from which the Company or any of its subsidiaries Subsidiaries is a party or by which it is bound (the “Company Material Contracts”):
(i) Contracts that are a “material contract” (as such term is defined in Item 601(b)(10) of more than $1,000,000 during any twelve (12Regulation S-K of the SEC) month period and is not terminable by to the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyCompany;
(iiiii) Contracts that contain any contract provision that contains any covenant restricting prior to or following the ability Effective Time would by its terms materially restrict or alter the conduct of business of, or purport to materially restrict or alter the conduct of business of the Company or any of its subsidiaries or affiliates (including Subsidiaries, Parent after or, to the Merger Closing) to: (x) conduct or compete in Company’s Knowledge, any material line Affiliate of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person Parent (other than any director, officer or employee of any of the Company or any of its subsidiariesSubsidiaries);
(iii) Contracts for partnerships, joint ventures or strategic alliances;
(iv) Contracts in an amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) per year (A) for the acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) entered into since January 1, 2004, other than in the ordinary course of business, (B) that grant to any Person any preferential rights to purchase any of its properties or assets or (C) relating to the acquisition by the Company or any of its Subsidiaries of any operating business or the capital stock of any other Person;
(v) Loan or credit agreements, mortgages, indentures, notes or other Contracts or instruments evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries;
(vi) Contracts relating to the license of material Company Intellectual Property to a third Person;
(vii) Mortgages, pledges, security agreements, deeds of trust or other Contracts granting a Lien on any material real property or any material property or assets of the Company or any of its Subsidiaries;
(viii) Company real property leases and all leases related to any material tangible personal property of the Company or any of its Subsidiaries;
(ix) Contracts, purchase agreements or other similar documents that obligate the Company or any of its Subsidiaries in an amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) per year or for which another Person is obligated to the Company or any of its Subsidiaries in excess of such amount;
(x) Collective bargaining agreements or other Contracts with any labor union and employment Contracts (other than for employment at-will or similar arrangements) that are not terminable by the Company without notice and without cost to the Company;
(xi) Contracts for indemnification or guarantees that are or could be material to the Company and its Subsidiaries, taken as a whole (in each case, under which the Company or any of its Subsidiaries has continuing obligations as of the date hereof);
(xii) Contracts that give any guarantee or warranty of products or services of the Company or its Subsidiaries, other than any warranty or guarantee implied by Law or consistent with those offered by the Company in the ordinary course of business; and
(xiii) Contracts that (A) grant any exclusive distribution agreement or supply agreement or other exclusive rights, (B) grant any “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights, rights of first refusal, rights of first negotiation or similar rights with respect to any similar requirement in favor product, or (C) contain any provision that requires the purchase of any person (other than all or a given portion of the Company Company’s or any of its subsidiaries);Subsidiaries’ requirements from a given third party, or any similar provision.
(vii) any contract relating The Company has heretofore made available to any joint venture, partnership, strategic alliance, or other similar agreements to which the Parent correct and complete copies of each Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries Material Contract in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding existence as of the date of this Agreement;
hereof, together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto; (viiiii) any contract each Company Material Contract is valid, binding and in full force and effect and is enforceable in all material respects in accordance with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures its terms by the Company or any of and its subsidiaries in excess of $1,000,000 in the aggregate;
Subsidiaries party thereto; and (xiiii) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither neither the Company nor any subsidiary of the Company its Subsidiaries is in material breach of default under, has received written notice of, or material default under otherwise has Knowledge of, the terms or conditions existence of any Company Material Contract and no event or condition has occurred that which constitutes, or, after notice or lapse of time or both, would will constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto Subsidiaries under any such Company Material Contract, nor has except where such defaults would not, individually or in the Company or any of its subsidiaries received any notice of any such material defaultaggregate, event or condition. To the knowledge of the Company, no other party to any have a Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Altra Holdings, Inc.), Merger Agreement (Tb Woods Corp)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documentsthis Agreement, Schedule 3.18(a) Section 3.16 of the Company Disclosure Schedules, sets forth Letter contains a complete and accurate list correct list, as of the date hereof, of each Contract described below in this Agreement of:Section 3.16 under which the Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which the Company or any Company Subsidiary is a party or to which any of their respective properties or assets is subject (all Contracts of the type described in this Section 3.16(a), whether or not set forth on Section 3.16 of the Company Disclosure Letter, being referred to herein as the “Material Contracts”):
(i) each Contract that limits, in each case in any contract that is required material respect the freedom of the Company, any Company Subsidiary or any of their respective affiliates (including Pubco and its affiliates after the Effective Time) to be filed as an exhibit to a report compete or filing under the Securities Act engage in any line of business or the Exchange Actgeographic region or with any Person;
(ii) each acquisition or divestiture Contract that contains any contract that involves annual payments material and ongoing obligations (including “earnout” or consideration from other contingent payment obligations or any ongoing indemnification obligations) on the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltySubsidiary;
(iii) each Contract that gives any contract that contains Person the right to acquire any covenant restricting the ability material assets of the Company or any Company Subsidiary (excluding ordinary course commitments to purchase Company Offerings), or any shares of its subsidiaries capital stock or affiliates (including Parent other equity interests of any other Person, after the Merger Closing) to: (x) conduct or compete date hereof with an aggregate value in any material line excess of business, (y) compete with any person or (z) operate in any geographic area$250,000;
(iv) any contract granting to any person (other than the all Material Company or any of its subsidiaries) “most favored nation” pricing provisionsIP Agreements;
(v) each Contract to provide material Source Code for any contract that provides for “exclusivity,” rights Company Offering to any third Person, including any Contract to put such Source Code in escrow with a third Person on behalf of first refusal, rights of first negotiation a licensee or any similar requirement in favor of any person (other than the Company or any of its subsidiaries)contracting party;
(vi) any contract relating Contract (x) granting exclusive rights to purchase, license, distribute, market, sell, support, make available or deliver any joint venture, partnership, strategic alliance, Company Offerings; or other similar agreements to which (y) otherwise contemplating an exclusive relationship between the Company or and any of its subsidiaries other Person, including any exclusive supply Contract, in each case which is material to the Company and the Company Subsidiaries taken as a partywhole;
(vii) each settlement agreement or similar Contract restricting in any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture material respect the operations or other contract (collectively, “debt obligations”) pursuant to which any indebtedness conduct of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company Subsidiary or any of their respective affiliates (including Pubco and its subsidiaries of debt obligations of any other person, including affiliates after the respective aggregate principal amounts outstanding as of the date of this AgreementEffective Time);
(viii) each Contract that obligates the Company or any contract with Company Subsidiary to make any capital investment or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement)capital expenditure outside the ordinary course of business;
(ix) any contract each Contract that requires is a consent to Material Customer Agreement or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the MergerMaterial Vendor Agreement;
(x) each Contract that contains any contract requiring exclusivity rights or otherwise relating to any future capital expenditures by “most favored nations” provisions or minimum use, supply or display requirements that are binding on the Company or any of its affiliates (including Pubco and its affiliates after the Effective Time), in each case which is material to the Company and its subsidiaries in excess of $1,000,000 in the aggregatetaken as a whole;
(xi) any contract providing for indemnification by the each material Company Lease;
(xii) each Contract relating to Indebtedness (or any its subsidiaries of any officer, director or employee commitments in respect thereof) of the Company or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) or relating to any Liens on the material assets of its subsidiariesthe Company or any Company Subsidiary;
(xiii) each Contract involving derivative financial instruments or arrangements (including swaps, caps, floors, futures, h▇▇▇▇▇, forward contracts and option agreements);
(xiv) each Related Party Contract;
(xv) each Collective Bargaining Agreement; and
(xiixvi) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract Contract not otherwise described in any of clauses (i) through (xii) other subsection of this Section 3.18(a3.16(a) (and each contract entered into after the date of this Agreement that would have been described constitute a “material contract” (as such term is defined in any of clauses (i) through (xiiItem 601(b)(10) of this Section 3.18(aRegulation S-K of the SEC) if such contract existed on with respect to the date of this Agreement) is referred to herein as a “Company Material Contract”Company.
(b) Prior to the date of this AgreementTrue, the Company has provided correct and complete and accurate copies of all Company each Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) Contract in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part hereof have been made available to Pubco. None of the Company or any Company Subsidiary is in breach of its subsidiaries or, to or default under the knowledge terms of the Company, any other party thereto under any such Company Material Contract, nor except as has not had and would not reasonably be expected to have, individually or in the aggregate, Company or any of its subsidiaries received any notice of any such material default, event or conditionMaterial Adverse Effect. To the knowledge Company’s Knowledge, as of the Companydate hereof, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Material Contract where such breach or default has had or would reasonably be expected to have, individually or in the aggregate, a Company Material ContractAdverse Effect. Each Except as has not had and would not reasonably be expected to have a Company Material Adverse Effect, each Material Contract is a valid valid, binding and binding enforceable obligation of the Company or the Company Subsidiary which is party thereto and, to the knowledge Company’s Knowledge, of the Companyeach other party thereto, and is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtEnforceability Limitations.
Appears in 2 contracts
Sources: Merger Agreement (JFB Construction Holdings), Merger Agreement (JFB Construction Holdings)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.13(a) of the Company Disclosure Schedules, Letter sets forth a complete and accurate list of all Material Contracts as of the date of this Agreement of:
(i) Agreement. For purposes of this Agreement, “Material Contract” means any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements Contract to which the Company or any of its subsidiaries Subsidiaries is a party;party or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound (other than this Agreement and the Company Benefit Plans) that:
(viii) any loan agreementrelates to the formation, credit agreementcreation, notegovernance or control of, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness the economic rights or obligations of the Company or any of its subsidiaries in excess Subsidiaries in, any joint venture, partnership or other similar arrangement that is material to the business of $1,000,000 is outstanding or may be incurred the Company and all guarantees its Subsidiaries, taken as a whole;
(ii) provides for Indebtedness of or by the Company or any of its subsidiaries Subsidiaries having an outstanding or committed amount in excess of debt obligations of $ 750,000, other than (A) Indebtedness solely between or among any other person, including the respective aggregate principal amounts outstanding as of the date Company and any of this Agreementits Subsidiaries and (B) letters of credit;
(viiiiii) any contract with relates to the employment, severance, retention or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; andSubsidiaries that receives compensation in an amount in excess of $250,000 per annum;
(xiiiv) relates to the acquisition or disposition of any contract relating to any acquisition business, assets or properties (whether by merger, consolidationsale of stock, acquisition sale of all or substantially all of the assets or otherwise) from 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 person earn-out, indemnification or divestiture deferred or disposition contingent payment obligations remain outstanding that would reasonably be expected to involve payments by the Company or any of its subsidiaries to any person Subsidiaries of material properties, assets, more than $250,000;
(v) prohibits the payment of dividends or distributions in respect of the capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orSubsidiaries, to prohibits the knowledge pledging of the Company, any other party thereto under any such Company Material Contract, nor has capital stock of the Company or any of its subsidiaries received Subsidiaries or prohibits the issuance of any guarantee by the Company or any of its Subsidiaries;
(vi) is (or contains provisions described in this clause (vi) that are or would reasonably be expected to be) material to the business of the Company and its Subsidiaries, taken as a whole, and contains provisions that prohibit the Company or any of its Subsidiaries from competing in or conducting any line of business or grants a right of exclusivity or “most favored nation” right to any person that prevents the Company or any of its Subsidiaries from entering any territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries upon notice of ninety (90) days or less;
(vii) relates to any real property owned or leased by the Company or its Subsidiaries;
(viii) to which any Card Network, Regions Bank or any other BIN sponsor bank is party;
(ix) relates to an agreement with (a) Emdeon Business Services LLC or its Affiliates, (b) one of the top ten (10) resellers (based on revenues derived from such material defaultresellers during the twelve-month period ending on December 31, event 2013), or condition(c) one of the top ten (10) fuel merchants (based on revenues derived from such fuel merchants during the twelve-month period ending on December 31, 2013); or
(x) (A) is not otherwise covered by clauses (i) through (ix) of this Section 3.13(a) and (B) either (x) is with a vendor or supplier pursuant to which 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 and its Subsidiaries (based on revenues derived from such customers during the twelve-month period ending on December 31, 2013) for each Business Line.
(b) All of the Material Contracts are valid and binding and in full force and effect (except those that terminate or are terminated after the date of this Agreement in accordance with their respective terms). To the knowledge Knowledge of the Company, no other party to any Company Material Contract Person is in material breach of challenging the validity or material default under the terms or conditions enforceability of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of Neither the Company andnor any of its Subsidiaries, nor to the knowledge Knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, 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 any of the court before other 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 proceeding therefor may be broughtprovision of, and neither the Company nor any of its Subsidiaries has received written notice that it has violated or defaulted under, any Material Contract. Company has delivered to Parent a complete copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Fleetcor Technologies Inc)
Material Contracts. Except as set forth on Schedule 3.15 (acollectively, the "Material Contracts") Except and except for contracts (including all amendments this Agreement and modifications thereto) filed as exhibits to except for any Material Lease and except for Customer Financing Indebtedness, neither the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth nor any Subsidiary is a complete and accurate list as of the date of this Agreement ofparty to or bound by any:
(i) contract for the employment of any contract that is required to be filed as an exhibit to officer, individual employee or other person on a report full-time, part-time, consulting or filing under the Securities Act or the Exchange Actother basis providing annual compensation in excess of $250,000;
(ii) agreement or indenture with any contract that involves annual payments or consideration from third party imposing a Lien on any of the Company Company's or any Subsidiary's assets or relating to the incurrence, assumption or guarantee of its subsidiaries of more any indebtedness for borrowed money, except for indebtedness for borrowed money for an amount less than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty1,000,000;
(iii) lease or agreement under which the Company or any Subsidiary is lessee of or holds or operates any property (other than real property), owned by any other party, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iv) lease or agreement under which the Company or any Subsidiary is lessor of or permits any third party to hold or operate any property (other than real property), owned or controlled by the Company or any Subsidiary, except for any lease or agreement under which the aggregate annual rental payments do not exceed $250,000;
(v) contract that or group of related contracts with the same party or group of affiliated parties the performance of which provides for the expenditure of more than $500,000 annually or $5,000,000 in the aggregate;
(vi) agreement which contains restrictions with respect to payment of any covenant restricting distribution in respect of any of the ability Membership Interests;
(vii) except for contracts for the employment of any officer, individual employee or other person on a full-time, part-time, consulting or other basis providing for annual compensation of $250,000 or less, agreement, contract or commitment containing covenants of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or Subsidiaries not to compete in any material line of business, (y) compete business or with any person or (z) operate in any geographic area;
(iv) geographical area or covenants of any contract granting other person not to any person (other than compete with the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) the Subsidiaries in any contract that provides for “exclusivity,” rights line of first refusal, rights of first negotiation business or in any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliancegeographical area, or other similar agreements to which that otherwise materially restricts the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness right of the Company or any of its subsidiaries the Subsidiaries to engage in excess a particular line of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreementbusiness;
(viii) any collective bargaining agreement, labor contract with or with respect to a labor union, guild or other written agreement, arrangement with any labor union or any employee representative (including any collective bargaining agreement or works council agreement)organization;
(ix) any contract contract, arrangement or understanding that requires a consent relates to the future disposition or otherwise contains a provision relating to a change acquisition of controlmaterial assets or properties, or that would any merger or could reasonably be expected to preventbusiness combination; or
(x) except for contracts for the employment of any officer, delay individual employee or impair other person on a full-time, part-time, consulting or other basis providing for annual compensation of $250,000 or less, any contract providing for severance, retention, change in control or other similar payments as a result (whether in and of itself or in conjunction with one or more events or transactions) of the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Equity Purchase and Merger Agreement (Refco Information Services, LLC), Equity Purchase and Merger Agreement (Refco Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 2.13(a) of the Company Disclosure Schedules, Schedule sets forth a complete and accurate correct list as of each of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements following Contracts to which the Company or any of its subsidiaries Subsidiaries is a partyparty (each of the Contracts and other documents required to be listed in Section 2.13(a) of the Company Disclosure Schedule, a “Company Material Contract”) as of the Agreement Date:
(i) Contracts with the Company’s top five marketing and advertising partners based on cost in the 12-month period prior to the Agreement Date;
(viiii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) All licenses pursuant to which any Person is authorized to use any Company-Owned IP Rights, other than Company-Owned IP Rights licensed to customers or marketing and advertising partners in the ordinary course of business;
(iii) Contracts for the acquisition, sale or lease of material properties or material assets (by merger, purchase or sale of stock or assets or otherwise) other than for capital equipment in the ordinary course of business;
(iv) Loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money (contingent or otherwise) or for the deferred purchase price of property or services by the Company or any of its Subsidiaries, or any Contract or instrument pursuant to which indebtedness for borrowed money (contingent or otherwise) or for the deferred purchase price of property or services may be incurred or is guaranteed by the Company or any of its Subsidiaries, or any guarantees by third parties for the benefit of the Company or any of its subsidiaries Subsidiaries, in each case having an outstanding principal amount in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement100,000;
(viiiv) any contract with or with respect to a labor unionMortgage, guild pledge, security agreement, deed of trust or other employee representative (including Contract granting a Lien on any collective bargaining agreement material property or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee material assets of the Company or any of its subsidiaries; andSubsidiaries other than for capital equipment in the ordinary course of business;
(xiivi) Contracts containing a covenant expressly limiting in any contract relating to any acquisition (by merger, consolidation, acquisition material respect the freedom of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries Subsidiaries to engage in any business with any Person or in any geographic area or to compete with any Person;
(vii) severance or change in control Contracts (but only to the extent remaining payments are or could be owing by the Company);
(viii) any Contract that gives rise to any person payment or benefit in excess of material properties$100,000 as a result of the performance of this Agreement or any of the Transactions;
(ix) Contracts with a term of more than six months which are not terminable by the Company upon less than 30 days’ notice without penalty and involve consideration in excess of $100,000 annually;
(x) Contracts to which a Governmental Authority is a party;
(xi) Contracts for the leases or subleases of real property to or by the Company or a Subsidiary, assets, capital stock other than leases or other equity interests, in each case, involving subleases that do not involve aggregate payments in excess of $1,000,000100,000 over the 12-month period commencing on the Agreement Date;
(xii) any settlement agreement of any Legal Proceeding since the Company Reference Date; in each case for such contracts as and
(xiii) any other agreement (or group of related agreements) the performance of which requires aggregate payments to which or from the Company or any of its subsidiaries is a party Subsidiaries after the Agreement Date in excess of $250,000 annually, other than agreements with marketing or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract advertising partners entered into after in the date ordinary course of this Agreement business that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on are terminable by the date of this Agreement) is referred to herein as a “Company Material Contract”upon less than 30 days’ notice without penalty.
(b) Prior Except as has not had and would not reasonably be expected to have, individually or in the date aggregate, a Company Material Adverse Effect, each of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendmentsis, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Agreement Date, valid, binding and in full force and effect and is enforceable in accordance with its terms by the Company or the applicable Subsidiary, subject to the General Enforceability Exceptions. Neither the Company nor any subsidiary of the Company applicable Subsidiary is in default in any material breach of or material default respect under the terms or conditions of any Company Material Contract and no event or Contract, nor, to the Knowledge of the Company, does any condition has occurred that constitutesexist that, or, after with notice or lapse of time or both, would constitute, constitute a default in any material default on the part of respect thereunder by the Company or any the applicable Subsidiary. As of its subsidiaries orthe Agreement Date, to the knowledge Knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, (i) no other party to any Company Material Contract is in default, in any material respect, under any of the provisions, terms or conditions thereunder and (ii) no condition exists that with notice or lapse of time or both would constitute a default in any material respect by any such other party thereunder. As of the Agreement Date, to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received written notice of (i) any termination or cancellation of any Company Material Contract or (ii) any past, present or future material breach of or material default under the terms any Company Material Contract, or conditions granted to any third party any material rights, adverse or otherwise, that would constitute a material breach of any Company Material Contract. Each Company Material Contract is (it being understood and agreed that any breach or default that gives the other party a valid and binding obligation of the Company and, right to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all termination shall be considered a material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium breach or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtmaterial default).
Appears in 2 contracts
Sources: Merger Agreement (Spark Networks SE), Agreement and Plan of Merger
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.15(a) of the Disclosure Letter lists the following types of Contracts to which the Company Disclosure Schedules, sets or any Company Subsidiary is a party or any of their respective assets are bound (such Contracts as are required to be set forth a complete and accurate list as in Section 3.15(a) of the date of this Agreement of:Disclosure Letter being the “Material Contracts”):
(i) any contract that each “material contract” (as such term is required to be filed as an exhibit to a report or filing defined in Item 601(b)(10) of Regulation S-K under the Securities Act or Act) with respect to the Exchange ActCompany and the Company Subsidiaries;
(ii) any contract that involves annual payments all Contracts evidencing indebtedness for borrowed money, whether as borrower or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltylender;
(iii) all joint venture, partnership, strategic alliance and business acquisition or divestiture Contracts under which the Company or a Company Subsidiary has any contract material obligation;
(iv) all Contracts relating to issuances of securities of the Company or any Company Subsidiary (other than the Company Stock Awards);
(v) all Contracts with any Governmental Authority to which the Company or any Company Subsidiary is a party and that contains any covenant restricting are material to the business and operations of the Company and the Company Subsidiaries, taken as a whole;
(vi) all Contracts that materially limit, or purport to materially limit the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or Company Subsidiary to compete in any material line of business, (y) compete business or with any person or (z) operate entity or in any geographic areaarea or during any period of time;
(ivvii) any contract granting to any person (other than the Company or any of its subsidiaries) all employment, consulting, change in control, “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivitygolden parachute,” rights of first refusal, rights of first negotiation severance or any similar requirement termination Contracts (in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements each case with respect to which the Company or any Company Subsidiary has continuing obligations as of its the date hereof) with any current or former (x) executive officer of the Company or any Company Subsidiary, (y) member of the Company Board or the board of directors of any Company Subsidiary or (z) employee providing for an annual base salary in excess of $100,000;
(viii) all Contracts providing for indemnification or any guaranty by the Company or any Company Subsidiary, in each case that is material to the Company and the Company Subsidiaries, taken as a whole, other than any guaranty by the Company or a Company Subsidiary of any of the obligations of the Company or Company Subsidiary;
(ix) all Contracts relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of the Company Subsidiaries after the date of this Agreement of assets with a fair market value in excess of $250,000;
(x) all material Contracts that obligate the Company or any of the Company Subsidiaries to conduct business on an exclusive or preferential basis with any third party or upon consummation of the Merger will obligate Parent, the Surviving Corporation or any of their respective subsidiaries is a to conduct business on an exclusive or preferential basis with any third party;
(viixi) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture all Contracts that prohibit the payment of dividends or other contract (collectively, “debt obligations”) pursuant to which any indebtedness distributions in respect of the capital stock of the Company or any of its subsidiaries in excess the Company Subsidiaries, prohibit the pledging of $1,000,000 is outstanding the capital stock of the Company or may be incurred and all guarantees any of the Company Subsidiaries or prohibit the issuance of any guarantee by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiariesSubsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to Contracts under which the Company or any of its subsidiaries the Company Subsidiaries is a party obligated to make payments or by incur costs in excess of $500,000 in any year and which any of them is bound. Each such contract are not otherwise described in any of clauses (ii)–(xi) through above. The Company has made available to Parent correct and complete copies of all Material Contracts, including any amendments thereto. Except as expressly described in Section 3.15(a), Material Contracts shall not include (xiiA) Insurance Contracts issued by any Company Subsidiary in the ordinary course of this Section 3.18(abusiness, (B) Reinsurance Contracts (and each contract whether assumed or ceded) entered into after by a Company Subsidiary in the date ordinary course of this Agreement that would have been described in business, (C) Contracts between the Company or any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed Company Subsidiary, on one hand, and any broker, managing general underwriter or managing general agent, on the date other hand, entered into in the ordinary course of this Agreementbusiness and (D) is referred to herein as Contracts between the Cost Management Subsidiary and a “Company Material Contract”recipient of, or consultant or employee for, medical and indemnity care cost management services, entered into in the ordinary course of business.
(b) Prior to Except as would not constitute a Material Adverse Effect or as set forth in Section 3.15(b) of the date of this AgreementDisclosure Letter, (i) each Material Contract is a legal, valid and binding agreement, in full force and effect and enforceable against the Company has provided complete and accurate copies of all or applicable Company Material Contracts Subsidiary in accordance with its terms, (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereofii) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part none of the Company or any of its subsidiaries Company Subsidiary or, to the knowledge of the Company, any other third party thereto has received any claim of default under or cancellation of any such Company Material Contract, nor has Contract and none of the Company or any of its subsidiaries received Company Subsidiary is in breach or violation of, or default under, any notice of any such material default, event or condition. To the knowledge of Material Contract; (iii) to the Company’s knowledge, no other party to any Company Material Contract is in material breach of or material violation of, or default under the terms or conditions of under, any Company Material Contract. Each Company Material Contract is ; and (iv) neither the execution of this Agreement nor the consummation of the Transactions shall constitute a valid and binding obligation default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtCompany Subsidiary under any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Enstar Group LTD), Merger Agreement (SeaBright Holdings, Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a4.16(a) of the Company Disclosure SchedulesSchedules lists, sets forth a complete and accurate list as of the date hereof, each of the following contracts and agreements of the Company and its Subsidiaries (such contracts and agreements as described in this Agreement of:Section 4.16(a) being “Material Contracts”):
(i) any contract all contracts or agreements that is required to be filed as an exhibit to a report provide for payment or filing under receipt by the Securities Act Company or its Subsidiaries of more than $25,000 per year or which the Exchange ActCompany or its subsidiaries cannot terminate without penalty on less than thirty (30) days’ notice;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period all contracts and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyagreements relating to Indebtedness;
(iii) any contract all contracts and agreements that contains any covenant restricting limit or purport to limit the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or Subsidiaries to compete in any material line of business, (y) compete business or with any person Person or (z) operate in any geographic areaarea or during any period of time;
(iv) any contract granting to any person (other than the Company all joint venture, partnership or any of its subsidiaries) “most favored nation” pricing provisionssimilar agreements or arrangements;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation all contracts or any similar requirement in favor of any person (other than agreements pursuant to which the Company or its Subsidiaries has granted any of its subsidiaries)exclusive or “most-favored’ rights to any third party;
(vi) any contract all contracts or agreements relating to any joint venture, partnership, strategic alliance, Encumbrance upon any of the assets or other similar agreements to which properties o of the Company or any of its subsidiaries is a partySubsidiaries;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgagesurety, guarantee, indenture indemnification or other similar contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or agreement involving potential obligations payable by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this AgreementSubsidiaries;
(viii) all contracts or agreements relating to the making of any contract with loan, advance or with respect to a labor unioncapital contribution to, guild or investment in, any other employee representative (including any collective bargaining agreement or works council agreement)Person;
(ix) any contract that requires a consent to all contracts or otherwise contains a provision agreements relating to a change the acquisition or disposition (including by way of controlmerger, consolidation, acquisition or that would sale of stock or could reasonably be expected to preventassets or otherwise) of any material assets, delay properties or impair the consummation of the transactions contemplated herein, including the Mergersecurities;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregateall energy purchase agreements;
(xi) all service and maintenance agreements, including any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiarieslong term service agreements;
(xii) all gas commodity contracts;
(xiii) all energy procurement contracts; and
(xiixiv) any other contract relating or agreement that is material to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of and its subsidiaries to any person of material propertiesSubsidiaries, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein taken as a “Company Material Contract”whole.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Each Material Contract is valid and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default binding on the part of the Company or any of its subsidiaries orthe applicable Subsidiary, as the case may be, and, to the knowledge Knowledge of the Company, any other party thereto under any such Company Material Contractthe counterparties thereto, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect. Except as set forth on Schedule 4.16(b) of the Disclosure Schedules, enforceable in accordance with none of the Company, any of its terms in all material respectsSubsidiaries nor, 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 Knowledge of the court before Company, any counterparty to any Material Contract is in breach of, or default under, any Material Contract to which any proceeding therefor may be broughtit is a party. The Company has previously delivered to Buyer a complete and accurate copy of each Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement (Energy & Power Solutions, Inc.), Purchase Agreement (Energy & Power Solutions, Inc.)
Material Contracts. (a) Except for contracts (including all amendments this Agreement and modifications thereto) filed as exhibits to the Company SEC Documentsother Transaction Agreements, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date hereof, none of this Agreement ofCompany T or its Subsidiaries is a party to nor are any of Company T's or its Subsidiaries' properties or assets bound by:
(i) any contract Contract that is would be required to be filed as an exhibit or furnished by Company T pursuant to a report or filing Item 19 and paragraph 4 of the Instructions to Exhibits of Form 20-F under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments Contract granting a right of first refusal, first offer or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyfirst negotiation;
(iii) any contract that contains any covenant restricting Contract relating to the ability formation, creation, operation, management or control of the Company a partnership, joint venture, limited liability company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic areasimilar arrangement;
(iv) any contract granting to any person Contract for the acquisition, sale or lease (other than the including leases in connection with financing transactions) of material properties or assets of Company T (by merger, purchase or any sale of its subsidiaries) “most favored nation” pricing provisionsassets or stock or otherwise);
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or Contract with any similar requirement in favor of any person (other than the Company or any of its subsidiaries)Governmental Entity;
(vi) any contract Contract involving the payment or receipt of amounts by Company T or its Subsidiaries, or relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company indebtedness for borrowed money or any financial guaranty, of its subsidiaries is a partymore than US$4,000,000;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture non-competition Contract or other contract (collectivelyContract that purports to limit, “debt obligations”) pursuant to which curtail or restrict in any indebtedness material respect the ability of the Company T or any of its subsidiaries Subsidiaries to compete in excess any geographic area, industry or line of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreementbusiness;
(viii) any contract with Contract that contains a put, call or with respect similar right pursuant to a labor unionwhich Company T or any of its Subsidiaries could be required to purchase or sell, guild or other employee representative (including as applicable, any collective bargaining agreement or works council agreement)equity interests of any Person ;
(ix) any contract Contract that requires a consent contains restrictions with respect to (A) payment of dividends or otherwise contains a provision relating any distribution with respect to a change equity interests of controlCompany T or any of its Subsidiaries, (B) pledging of share capital of Company T or that would any of its Subsidiaries or could reasonably be expected to prevent, delay (C) issuance of guaranty by Company T or impair the consummation any of the transactions contemplated herein, including the Merger;its Subsidiaries; or
(x) any contract requiring or otherwise relating to any future capital expenditures by the material Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
T IP Agreements other than agreements for Off-the-Shelf Software and UGC Agreements (xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract Contracts described in any of clauses (i) through (xii) of this Section 3.18(a) (x), and each contract entered into after any Company T VIE Contracts, collectively, the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “"Company T Material Contract”Contracts").
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary Each of the Company is in material breach of or material default under T Material Contracts constitutes the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and legally binding obligation of the Company and, to the knowledge of the Company, is in full force and effectT or its applicable Subsidiary, enforceable in accordance with its terms and is in all full force and effect. There is no material respectsbreach or default under any Company T Material Contract so listed either by Company T or, except to Company T's knowledge, by any other party thereto, and no event has occurred that (i) with the lapse of time or the giving of notice or both would constitute a default thereunder by Company T or, to Company T's knowledge, any other party. No party to any such enforcement may be subject Company T Material Contract has given notice to applicable bankruptcy, insolvency, reorganization, moratorium Company T of or other similar Laws, now made a claim against Company T with respect to any material breach or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtdefault thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Youku Inc.), Merger Agreement (Tudou Holdings LTD)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits All material Contracts to the which Company SEC Documents, Schedule 3.18(a) or any Subsidiary is a party or any of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement of:
(i) any contract their respective properties or assets is subject that is are required to be filed as an exhibit to a report or filing under any Available Company SEC Document have been filed as an exhibit to such Available Company SEC Document (such filed Contracts, the Securities Act or "Filed Contracts"). Schedule 3.13(a) lists all Contracts, other than the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Filed Contracts, to which Company or any of its subsidiaries Subsidiaries is a party and which fall within any of more than $1,000,000 during any twelve the following categories (12together with the Filed Contracts, the "Material Contracts"): (i) month period material Contracts not entered into in the ordinary course of business; (ii) joint venture, partnership and is not terminable by the Company like agreements involving a sharing of profits, losses, costs or its subsidiary on 90 (or fewer) days’ notice without penalty;
liabilities; (iii) Real Property Leases; (iv) Contracts relating to any contract that contains outstanding commitment for capital expenditures in excess of $100,000 or which provided for payments to or from Company or any covenant restricting Subsidiary in excess of $100,000 in the ability aggregate over the life of the such Contract; (v) indentures, mortgages, promissory notes, loan agreements, guarantees, letter of credit or other agreements, instruments or Indebtedness of Company or any of its subsidiaries Subsidiaries or affiliates (including Parent after commitments for the Merger Closing) to: (x) conduct borrowing or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the lending by Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides Subsidiaries of amounts in excess of $50,000 or providing for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor the creation of any person (other than Lien upon any of the assets of Company or any of its subsidiaries);
Subsidiaries; (vi) any contract relating non-competition agreement or any other agreement or obligation that purports to limit in any joint venture, partnership, strategic alliancerespect the manner in which, or other similar agreements to which the localities in which, the business of Company or any of its subsidiaries is a party;
the Subsidiaries may be conducted; (vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture Contract that by its express terms would prohibit or other contract (collectively, “debt obligations”) pursuant to which any indebtedness materially delay the consummation of the Company Merger or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or the Transactions contemplated by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
; (viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
; (ix) any contract that requires a consent material Contracts pertaining to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
Intellectual Property (excluding Contracts for commercially available off-the-shelf software); and (x) any contract requiring or otherwise relating to any future capital expenditures by agreement for the Company or any sale of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee significant assets out of the Company or any ordinary course of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”business.
(b) Prior All the Material Contracts are valid and in full force and effect, except to the date extent they have previously expired or terminated in accordance with their terms and except for any invalidity or failure to be in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. None of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company Subsidiary is in material breach violation of or material default under the terms (with or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after without notice or lapse of time or both) under, would constitute, a material default on the part of the Company or has waived or failed to enforce any of its subsidiaries or, to the knowledge of the Companyrights or benefits under, any other party thereto under any such Company Material Contract, nor has except for violations, defaults, waivers or failures to enforce rights or benefits that individually or in the Company or any of its subsidiaries received any notice of any such material default, event or conditionaggregate would not reasonable be expected to have a Material Adverse Effect. To the knowledge Knowledge of the Company, no other party to any Company Material Contract is in material breach thereof or default thereunder, except for breaches or defaults that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. Company has made available to Parent true and complete copies of or material default under the terms or conditions of any Company each Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in including all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtamendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Cpac Inc), Merger Agreement (Cpac Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as As of the date of this Agreement of:Agreement, none of the Company, any of its subsidiaries or their respective properties or other assets is a party to or bound by any Contract (other than Company Plans):
(i) pursuant to which the Company, any contract that is required to be filed as an exhibit to a report of its subsidiaries or filing under the Securities Act any other party thereto has material continuing obligations, rights or the Exchange Act;
(ii) any contract that involves interests and including annual payments by the Company and its subsidiaries of $100,000 or consideration from more relating to the research, development, clinical trial, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to, any product candidate for which the Company or any of its subsidiaries is currently engaged in research or development, including but not limited to: (A) material manufacture or supply services or material Contracts with contract research organizations for clinical trials-related services; (B) material transfer Contracts for pre-clinical products or clinical products of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or any of its subsidiary on 90 subsidiaries with commercial, pharmaceutical or biotechnology companies; (C) Contracts involving the payment of royalties or fewerother amounts calculated based upon the revenues or income of the Company or any of its subsidiaries or income or revenues related to any clinical product candidate of the Company or any of its subsidiaries; and (D) days’ notice without penaltyContracts pursuant to which the Company has minimum purchase or “most favored nation” obligations;
(iiiii) any contract that contains any covenant restricting non-compete or exclusivity provision or limits or purports to limit, curtail or restrict the ability of the Company or any of its subsidiaries (or affiliates (including Parent after which following the consummation of the Merger Closingand the other transactions contemplated hereby would reasonably be expected to limit the ability of the Surviving Corporation) to: in a manner that is material to the business of the Company and its subsidiaries, taken as a whole, as currently conducted (xA) conduct or to compete in any material line of business, (y) compete with any person or (z) operate in any geographic areaarea or with any Person and (B) to sell to or purchase from any other Person;
(iii) that requires or permits the Company, or any successor to, or acquirer of, the Company, to make any payment to another Person, or requires the consent of another Person, in each case in connection with a change of control of the Company or gives another Person a right to receive or elect to receive a change of control payment;
(iv) that is a joint-venture or partnership agreement or other similar agreement or arrangement;
(v) that (A) relates to the disposition or acquisition by the Company or its subsidiaries of a material amount of assets or equity interests in any contract granting to any person Person (1) after the date of this Agreement, other than the sale of inventory in the ordinary course of business consistent with past practice, or (2) which contains any ongoing obligations (including sale of inventory, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely to result in claims in excess of $50,000 or (B) pursuant to which the Company or its subsidiaries will acquire or dispose of any material ownership interest in any other person or other business enterprise other than the Company’s subsidiaries;
(vi) that is a loan or credit agreement, indenture, note or other Contract or instrument relating to or evidencing Indebtedness for borrowed money (including any guarantee thereto) or any Contract pursuant to which Indebtedness for borrowed money may be incurred or guaranteed, including any Contract that is a financial derivatives master agreement or confirmation, or futures account opening agreement and/or brokerage statement, evidencing financial hedging or similar trading activities;
(vii) that is a mortgage, pledge, security agreement, deed of trust, capital lease or similar agreement that creates or grants a Lien on any material property or asset of the Company or any of its subsidiaries) “most favored nation” pricing provisions, in each case involving annual payments of more than $100,000;
(vviii) any contract that provides is a Collective Bargaining Agreement;
(ix) that is a Contract providing for “exclusivity,” rights of first refusal, rights of first negotiation the issuance or any similar requirement in favor sale of any person (other than equity securities of the Company or any of its subsidiaries);
(vix) any contract relating to any joint ventureThat is a settlement agreement, partnershipor agreement entered into in connection with a settlement agreement, strategic alliancecorporate integrity agreement, consent decree, deferred prosecution agreement, or other similar agreements to which the Company type of agreement with any Governmental Authority or any of its subsidiaries is a partyother Person that has existing or contingent performance obligations;
(viixi) that is a Contract granting a right of first refusal or first negotiation to any loan third party over any material assets of the Company;
(xii) that is a Contract, including any ancillary or subagreements thereto, with any contract research organization or other agreement, credit agreementincluding any ancillary or subagreements thereto, note, debenture, bond, mortgage, guarantee, indenture with a third party which is conducting one or other contract (collectively, “debt obligations”) pursuant to which any indebtedness more clinical studies on behalf of the Company or any of its subsidiaries in excess and is reasonably expected to require payment of more than $1,000,000 is outstanding 50,000 within twelve (12) months prior to or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of after the date of this Agreement;
(viiixiii) involves the use or license by the Company or its subsidiaries of any contract with material Software used by the Company or with respect its subsidiaries as presently conducted (other than non-customized Software subject to a labor unionshrink-wrap, guild click-wrap and off-the-shelf or other employee representative (including any collective bargaining agreement or works council agreementcommercially available Software);
(ixxiv) is an IP Agreement of the type set forth in Section 3.15(f) or 3.15(g) of the Company Disclosure Letter or involves the joint development of products or technology with a third party that is material to the Company and its subsidiaries, taken as a whole; or
(xv) that is any contract Contract that requires is a consent “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC).
(xvi) All Contracts, arrangements, commitments or understandings described in this Section 3.12(a), together with each Company Real Property Lease, shall be collectively referred to or otherwise contains a provision relating to a change of controlas the “Company Material Contracts.”
(b) Except, or that in each case, as has not been and would or could not reasonably be expected to preventbe, delay individually or impair in the consummation aggregate, material to the Company and its subsidiaries, taken as a whole, as of the transactions contemplated hereindate hereof, including (i) each of the Merger;
Company Material Contracts is valid, binding and in full force and effect with respect to the Company and its subsidiaries party thereto and, to the Knowledge of the Company, each other party thereto and enforceable, in all material respects, in accordance with its terms by the Company and its subsidiaries party thereto (xsubject to the Bankruptcy and Equity Exception); (ii) any contract requiring or otherwise relating the Company and each of its subsidiaries has performed all material obligations required to be performed by them under the Company Material Contracts to which they are parties; (iii) to the Knowledge of the Company, each other party to a Company Material Contract has performed all material obligations required to be performed by it under such Company Material Contract and (iv) no party to any future capital expenditures by Company Material Contract has given the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any written notice of its subsidiaries; and
(xii) any contract relating intention to any acquisition (by mergercancel, consolidationterminate, acquisition change the scope of all rights under or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries fail to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of renew any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of neither the Company or nor any of its subsidiaries orsubsidiaries, nor, to the knowledge Knowledge of the Company, any other party thereto under to any such Company Material Contract, nor has repudiated in writing any material provision thereof. Neither the Company nor any of its subsidiaries has knowledge of, or has received written notice of, any violation or default under any Company Material Contract or any other Contract to which it is a party or by which it or any of its subsidiaries received any notice material properties or assets is bound, except for violations or defaults that have not been and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its subsidiaries, taken as a whole. True, unredacted and complete copies of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation all of the Company and, Material Contracts have been made available to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtParent.
Appears in 2 contracts
Sources: Merger Agreement (Akari Therapeutics PLC), Merger Agreement (Peak Bio, Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) Section 3.18 of the Company Disclosure Schedules, Schedule sets forth a list of all Material Contracts. The Company has heretofore made available to Parent true, correct and complete copies of all written or oral contracts and accurate list as of the date of this Agreement of:
agreements (i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of businessall amendments, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements modifications and supplements thereto and all side letters to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of party affecting the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viiiparty thereunder) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any its assets or properties are bound that are of clauses the following type: (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreementextent material to the business, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes assets or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary properties of the Company and its subsidiaries taken as a whole, product design or development, or indemnification contracts (including, any contract to which the Company or any of its subsidiaries is a party involving employees of the Company); (ii) merchandising or distribution agreements involving the payment of in excess of $2,500,000 per year; (iii) to the extent material breach to the business, assets or properties of the Company and its subsidiaries taken as a whole, contracts granting a right of first refusal or first negotiation; (iv) to the extent material default under to the terms business, assets or conditions properties of the Company and its subsidiaries taken as a whole, partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease of material assets or properties of the Company (by merger, purchase or sale of assets or stock or otherwise) entered into since January 1, 1996 involving in excess of $1,000,000; (vi) to the extent material to the business, assets or properties of the Company and its subsidiaries taken as a whole, contracts or agreements with any Governmental Entity; (vii) loan or credit agreements, mortgages, indentures or other agreements or instruments evidencing indebtedness for borrowed money by the Company Material Contract or any of its subsidiaries or any such agreement pursuant to which indebtedness for borrowed money, in each case involving in excess of $1,000,000; (viii) to the extent material to the business, assets or properties of the Company and no event its subsidiaries taken as a whole, agreements that purport to limit, curtail or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on restrict the part ability of the Company or any of its subsidiaries or, to compete in any geographic area or line of business; (ix) to the knowledge extent material to the business, assets or properties of the CompanyCompany and its subsidiaries taken as a whole, foundry, wafer manufacturing or fabricating agreements, (x) supply or second source agreements involving the payment of in excess of $2,500,000 per year, (xi) agreements with customers relating to the sale of products involving the payment of in excess of $2,500,000 per year and (xii) commitments and agreements to enter into any other party thereto under of the foregoing (collectively, together with any such Company Material Contractcontracts entered into in accordance with Section 5.1, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge "MATERIAL CONTRACTS").
(b) Each of the Company, no other party to any Company Material Contract is in material breach of or material default under Contracts constitutes the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and legally binding obligation of the Company andor its subsidiaries, to the knowledge of the Companyenforceable in accordance with its terms, and is in full force and effect. There is no default under any Material Contract so listed either by the Company (or its subsidiaries) or, enforceable in accordance with its terms in all material respects, 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 Company's knowledge, by any other party thereto, and no event has occurred that with the giving of notice, the court before which lapse of time, or both would constitute a default thereunder by the Company (or its subsidiaries) or, to the Company's knowledge, any proceeding therefor may be broughtother party.
(c) No party to any such Material Contract has given notice to the Company of or made a claim against the Company in respect of any breach or default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Unitrode Corp), Merger Agreement (Texas Instruments Inc)
Material Contracts. (a) Except for contracts (including all amendments this Agreement and modifications thereto) except for Contracts disclosed in the Data Room or filed as exhibits to the Company SEC DocumentsReports filed with the SEC prior to the date of this Agreement, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date hereof, none of this Agreement ofthe Company or its Subsidiaries is a party to or bound by:
(i) any contract Contract that is would be required to be filed as an exhibit by the Company pursuant to a report or filing Item 4 of the Instructions to Exhibits of Form 20-F under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments Contract involving the payment or consideration from receipt of amounts by the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company Subsidiaries, or its subsidiary on 90 (or fewer) days’ notice without penaltyrelating to material Indebtedness;
(iii) any contract material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that contains any covenant restricting limits, or purports to limit, the ability of the Company or any of its subsidiaries Subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or any of their respective employees to compete in any material line of business, (y) compete business or with any person Person or (z) operate entity or in any geographic areaarea or during any period of time;
(ivv) any contract granting material Contract entered into after December 31, 2010, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person, which is material to the Company and its Subsidiaries, taken as a whole;
(vi) any person 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) “most favored nation” pricing provisionsSubsidiaries), on the other hand, that involves an amount of payments which is material to the Company and its Subsidiaries, taken as a whole;
(vvii) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than Contract between the Company or any of its subsidiaries);
(vi) Subsidiaries and any contract relating to any joint venture, partnership, strategic alliance, director or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) each Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment in an amount which is material to the Company and its subsidiaries in excess of $1,000,000 is outstanding or may Subsidiaries, taken as a whole, to be incurred and all guarantees of or made by the Company or any of its subsidiaries of debt obligations of any other person, including Subsidiaries or (B) the respective aggregate principal amounts outstanding as value of the date of this Agreement;
(viii) any contract with or with respect outstanding receivables due to the Company and its Subsidiaries under such Contract is in an amount which is material to the Company and its Subsidiaries, taken as a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);whole; and
(ix) any contract that requires other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a consent to or otherwise contains a provision relating to a change of controlwhole, or that the conduct of their respective businesses, or the absence of which would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the have a Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is boundMaterial Adverse Effect. Each such contract Contract described in any of clauses (i) through (xiiix) of this Section 3.18(a) (and each contract entered into after above, whether or not filed as an exhibit to the date of this Agreement that would have been described Company SEC Reports or disclosed in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) Company Disclosure Schedule or the Data Room, is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as As of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any hereof, except as would not have a Company Material Contract and no event or condition has occurred that constitutesAdverse Effect, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the knowledge of Company’s Knowledge, the Companyother parties thereto, is in full force and effect, enforceable in accordance with its terms in all material respects, 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 neither the Company nor any of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and its Subsidiaries nor, to the discretion Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any 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 court before which Company’s Knowledge, the action or inaction of any proceeding therefor may be broughtthird party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (NewQuest Asia Fund I, L.P.), Merger Agreement (China Hydroelectric Corp)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits No Acquired Company, is a party to the Company SEC Documents, Schedule 3.18(a) or bound by any of the Company Disclosure Schedules, sets forth following (a complete and accurate list as Contract responsive to any of the date of this Agreement of:following categories being hereinafter referred to as a “Material Contract”):
(i) other than as listed in 3.09(a)(i) of the Disclosure Schedule, any contract that is required to be filed as an exhibit to a report lease (whether of real or filing under personal property) providing for annual rentals of the Securities Act equivalent of $20,000 or the Exchange Actmore;
(ii) other than as listed in 3.09(a)(ii) of the Disclosure Schedule, any contract that involves annual payments Contract pursuant to which any Intellectual Property Right or consideration from the Technology, including any Third Party IP, is licensed, sold, assigned or otherwise conveyed or provided to any Acquired Company or pursuant to which any of its subsidiaries of more Person has agreed not to enforce any Intellectual Property Right against any Acquired Company, other than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyContracts for Generally Available Software;
(iii) any contract that contains Contract pursuant to which any covenant restricting the ability of the Intellectual Property Right or Technology is or has been licensed (whether or not such license is currently exercisable), sold, assigned or otherwise conveyed or provided to a third party by any Acquired Company, or pursuant to which any Acquired Company or has agreed not to enforce any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in Intellectual Property Right against any material line of business, (y) compete with any person or (z) operate in any geographic area;third party.
(iv) any contract granting to Contract imposing any person (other than restriction on any Acquired Company’s right or ability, or, after the Company Closing Date, the right or ability of Purchaser or any of its subsidiariesAffiliates (A) “most favored nation” pricing provisionsto compete in any line of business or with any Person or in any area or which would so limit the freedom of Purchaser or any of its Affiliates after the Closing Date (including granting exclusive rights or rights of first refusal to license, market, sell or deliver any of the products or services offered by any Acquired Company or any related Intellectual Property Right), (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) to develop or distribute any Intellectual Property Right or Technology;
(v) other than as listed in 3.09(a)(v) of the Disclosure Schedule, any contract that provides for “exclusivity,” rights of first refusalpartnership, rights of first negotiation joint venture or any similar requirement in favor sharing of any person (other than the Company revenues, profits, losses, costs or liabilities or any of its subsidiaries)other similar Contract;
(vi) any contract Contract relating to the acquisition or disposition of any joint venturebusiness (whether by merger, partnershipsale of stock, strategic alliance, sale of assets or other similar agreements otherwise) entered into since inception pursuant to which the any Acquired Company has any current or any of its subsidiaries is a partyfuture rights or obligations;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”than as listed in 3.09(a)(vii) pursuant to which any indebtedness of the Disclosure Schedule, any Contract relating to Indebtedness or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(viii) any Contract relating to the acquisition, issuance or transfer of any securities;
(ix) any Contract relating to any interest rate, currency or commodity derivatives or hedging transaction;
(x) any Contract under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of any Acquired Company or (B) any of its subsidiaries in excess of $1,000,000 is outstanding Acquired Company has directly or may be incurred and all guarantees of indirectly guaranteed liabilities or by the Company or any of its subsidiaries of debt obligations of any other personPerson (in each case other than endorsements for the purposes of collection in the ordinary course of business and intercompany guarantees among the Acquired Companies);
(xi) other than as listed in 3.09(a)(xi) of the Disclosure Schedule, including any Contract relating to the respective aggregate principal amounts outstanding creation of any Lien (other than Permitted Liens) with respect to any asset of any Acquired Company;
(xii) any Contract which contains any provisions requiring any Acquired Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products or services in the ordinary course of business consistent with past practice);
(xiii) other than as listed in 3.09(a)(xiii) of the Disclosure Schedule, any Contract with any Related Person;
(xiv) any Contract with a Governmental Authority generating revenues or that has been executed within six months prior to the date of this Agreement;
(viiixv) any contract with or with respect to a labor unionemployment, guild severance, retention, change-in-control, bonus or other employee representative Contract with any current or former employee, officer, director, advisor or consultant of any Acquired Company (including A) pursuant to which any collective bargaining agreement Acquired Company has any current or works council agreement);
future rights or obligations other than as a result of normal employment status, (ixB) that provides for the payment of any contract that requires a consent to cash or otherwise contains a provision relating to a change of control, other compensation or that would or could reasonably be expected to prevent, delay or impair benefits upon the consummation of the transactions contemplated hereinTransaction, including or (C) that otherwise restricts any Acquired Company’s ability to terminate the Merger;
employment or engagement of such individual without penalty or liability (x) excluding any contract requiring penalty or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries liability in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee respect of the Company or any of its subsidiaries; and
(xii) any contract relating employee’s notice period and right not to any acquisition (by mergerbe unfairly dismissed), consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity intereststhan, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract Contracts entered into after in the date ordinary course of this Agreement business consistent with past practice with any advisor, consultant or employee of any Acquired Company;
(xvi) any Contract that would have been described cannot be provided to the Purchaser; and
(xvii) any other Contract not made in the ordinary course of business that is material to any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”Acquired Company.
(b) Prior Subject to the date of this Agreementlimitations set forth in Section 5.03(b), the Company Seller has provided made available to Purchaser accurate and complete and accurate copies of all Company Material written Contracts (identified in Section 3.09(a) of the Disclosure Schedule, including all amendmentsamendments thereto. Subject to the limitations set forth in Section 5.03(b), modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereofSection 3.09(a) in effect as of the date Disclosure Schedule provides an accurate description of this Agreementthe material terms of each Material Contract identified in Section 3.09(a) of the Disclosure Schedule that is not in written form. Seller has notified Purchaser of any Contracts or portions thereof that Seller has withheld from Purchaser pursuant to Section 5.03(b) and has disclosed to Purchaser any material liabilities or obligations under any such Contracts, to the extent permitted thereunder.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation agreement of the Acquired Company andparty thereto, to the knowledge of the Company, and is in full force and effect, enforceable and no Acquired Company is and, to the Knowledge of Seller, no other party thereto is in accordance default or breach in any material respect under the terms of any such Contract, and, to the Knowledge of Seller, other than as set forth in Section 3.04 of the Disclosure Schedule regarding the consummation of the Transaction, no event has occurred, and no circumstance or condition exists, that (with its terms in all material respectsor without notice or lapse of time) will, except that or would reasonably be expected to, (i) such enforcement may be subject to applicable bankruptcyresult in a violation or breach of any of the provisions of any Material Contract, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies give any Person the right to declare a default or exercise any remedy under any Material Contract, (iii) give any Person the right to accelerate the maturity or performance of specific performance and injunctive and any grant or rights or other forms of equitable relief may be subject obligation under a Material Contract, or (iv) give any Person the right to equitable defenses and cancel, terminate or modify any Material Contract.
(d) No Acquired Company has received any written notice or, to the discretion Knowledge of Seller, any other communication regarding any violation or breach of, or default under, any Material Contract.
(e) No Person is renegotiating, or has a right (or has asserted a right) pursuant to the court before which terms of any proceeding therefor may be broughtMaterial Contract to renegotiate, any amount paid or payable to any Acquired Company under any Material Contract or any other material term or provision of any Material Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Esports Entertainment Group, Inc.), Stock Purchase Agreement (Esports Entertainment Group, Inc.)
Material Contracts. (a) Except (x) as set forth in Section 3.16(a) of the Transferor Disclosure Letter and (y) the Company Leases, neither the Company nor any Company Subsidiary is a party to or bound by any contract that, as of the date of this Agreement: (i) obligates the Company or any Company Subsidiary to make non- contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $5,000,000, except for contracts (including all amendments A) any Company Lease pursuant to which any third party is a lessee or sublessee on any Company Property or (B) any agreement entered into in connection with any capital expenditure project set forth in the budget previously provided to Transferee Parent by the Company; (ii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Company or any Company Subsidiary, or that otherwise restricts the lines of business conducted by the Company or any Company Subsidiary or the geographic area in which the Company or any Company Subsidiary may conduct business, except for radius restrictions that may be contained in the Company Leases entered into in the ordinary course of business; provided that any contract that is terminable upon not more than thirty (30) days’ notice shall not constitute a Company Material Contract pursuant to this Section 3.16(a)(ii); (iii) (A) is an agreement (other than an Organizational Document of the Company or a Company Subsidiary) that obligates the Company or any Company Subsidiary to indemnify
(A) requires the Company or any Company Subsidiary to dispose of or acquire assets or properties (other than in connection with the expiration of a Company Lease pursuant to which any third party is a lessee or sublessee on any Company Property), (B) gives any Person the right to buy any Company Property, (C) involves any pending or contemplated merger, consolidation or similar business combination transaction or (D) grants any buy/sell right, put option, call option, redemption right, option to purchase, marketing right, forced sale, tag or drag right, right of first offer, right of first refusal or right that is similar to any of the foregoing, pursuant to the terms of which the Company or any Company Subsidiary could be required to purchase or sell the equity interests or assets of any Person or any real property or any other material assets, rights or the Company Properties; (vi) constitutes a joint venture or partnership agreement between the Company or any Company Subsidiary, on the one hand, and modifications theretoany third party, on the other hand; (vii) filed as exhibits constitutes a loan to any Person (other than a wholly owned Company Subsidiary) by the Company or any Company Subsidiary (other than advances or rent relief made in connection with or pursuant to the Company SEC DocumentsLeases or pursuant to any disbursement agreement, Schedule 3.18(a) development agreement or development addendum entered into in connection with a Company Lease with respect to the development, construction or equipping of the Company Disclosure Schedules, sets Properties or the funding of improvements to the Company Properties) in an amount in excess of $5,000,000; or (viii) constitutes a Third-Party Property Management Agreement or a Material Company Lease; (ix) constitutes a license granted to the Company or any Company Subsidiary with respect to Intellectual Property Rights (other than licenses for off-the-shelf software with an annual fee of less than $50,000).
(b) Each contract in any of the categories set forth in Section 3.16(a)(i) through Section 3.16(a)(ix) to which the Company or any Company Subsidiary is a complete and accurate list party or by which it is bound as of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.. For the avoidance of doubt, the term “Company Material Contract” does not include any Company Leases, other than Material Company Leases. (c)
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(ci) Neither the Company nor any subsidiary of the Company Subsidiary is in material (or has received any written claim of) breach of or material default under the terms or conditions of any Company Material Contract and Contract, and, to the Knowledge of Transferor, no event or condition has occurred that constitutes, or, after with notice or lapse of time or both, both would constitute, constitute a material breach or default on the part of thereunder by the Company or any of its subsidiaries orCompany Subsidiary, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) to the knowledge Knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the CompanyTransferor, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Contract where such breach or default would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect and (iii) as of the date of this Agreement, each Company Material Contract is a valid and binding obligation agreement of the Company or a Company Subsidiary, as applicable, and, to the knowledge Knowledge of Transferor, the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.parties thereto and
Appears in 2 contracts
Sources: Contribution Agreement (Sachem Capital Corp.), Contribution Agreement (Sachem Capital Corp.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) Section 3.12 of the Company Disclosure Schedules, Letter sets forth a complete and accurate list of each of the following Contracts to which, as of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from Agreement, the Company or any of its subsidiaries of more than $1,000,000 during any twelve Subsidiaries is a party (12each, a “Company Material Contract”):
(i) month period and is each Contract (A) not terminable by the Company or its subsidiary on 90 to (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant otherwise restricting or limiting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger ClosingSubsidiaries to) to: (x) conduct or compete in any material line of business, (y) compete with any person business or geographic area or (zB) operate to restrict the ability of the Company or any of its Subsidiaries to conduct business in any geographic area;
(ivii) any contract granting to any person each Contract (other than any Company Benefit Plan) providing for or resulting in payments by the Company or any of its subsidiariesSubsidiaries that exceeded $250,000 since the Company Incorporation Date;
(iii) “most favored nation” pricing provisionsall Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material Company Assets;
(iv) all material Contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment;
(v) all partnership, joint venture or other similar agreements or arrangements;
(vi) any contract that provides agreement relating to indebtedness for “exclusivity,” rights borrowed money or the deferred purchase price of first refusalproperty (in either case, rights of first negotiation whether incurred, assumed, guaranteed or secured by any similar requirement in favor of asset), except any person such agreement with an aggregate outstanding principal amount not exceeding $1,000,000;
(other than vii) any agreement for the disposition or acquisition by the Company or any of its subsidiaries);
(vi) any contract relating to any joint ventureSubsidiaries, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness with material obligations of the Company or any of its subsidiaries in excess Subsidiaries (other than confidentiality obligations) remaining to be performed or material liabilities of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of Subsidiaries 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) any contract an agreement with a (A) the top 10 customers of the Company and its Subsidiaries, taken as a whole, as applicable, and (B) the top 10 suppliers of the Company and its Subsidiaries, taken as a whole, as applicable (in each case measured by aggregate obligations paid or with respect agreed to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreementsince the Company’s inception);
(ix) any contract that requires a consent agreement restricting or limiting the payment of dividends or the making of distributions to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated hereinstockholders, including the Mergerintercompany dividends or distributions other than such restrictions or limitations that are required by applicable Law;
(x) any contract requiring or otherwise relating to any future capital expenditures by Contract for the Company or any development of its subsidiaries in excess of $1,000,000 Intellectual Property, other than those entered into in the aggregate;ordinary course of business with Company employees and contractors on the Company’s standard form for such Contracts; and
(xi) any contract providing for indemnification by to the Company or any its subsidiaries of any officer, director or employee extent not set forth in Section 3.12(a) of the Company or any of its subsidiaries; and
(xii) any contract relating Disclosure Letter pursuant to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) another subsection of this Section 3.18(a3.12(a), all material agreements with any Governmental Authority.
(b) A true and complete copy of each Company Material Contract (and each contract including any amendments thereto) entered into after prior to the date of this Agreement that would have has been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred made available to herein as a “Company Material Contract”.
(b) Prior Parent prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation agreement of the Company andor 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. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company or such Subsidiary nor, to the knowledge Knowledge of the Company, any other party thereto, is in full force and effectbreach of or default under any such Company Material Contract, enforceable in accordance with its terms in all material respects, 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 as of the court before which date of this Agreement, there are no material disputes with respect to any proceeding therefor may be broughtsuch Company Material Contract and (iii) as of the date of this Agreement, no party under any Company Material Contract has given written notice of its intent to terminate or otherwise seek a material amendment to such Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Ikonics Corp), Merger Agreement (Ikonics Corp)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.13(a) of the Company Parent Disclosure Schedules, Schedule sets forth a complete and accurate correct list of each of the following Contracts (other than Parent Plans) to which Parent or any of its Subsidiaries is a party (each of the Contracts and other documents required to be listed in Section 3.13(a) of the Parent Disclosure Schedule, a “Parent Material Contract”) as of the date of this Agreement ofDate:
(i) any contract that is required Contracts with Parent’s top five marketing and advertising partners based on cost in the 12-month period prior to be filed as an exhibit to a report or filing under the Securities Act or the Exchange ActAgreement Date;
(ii) All licenses pursuant to which any contract that involves annual payments Person is authorized to use any Parent-Owned IP Rights, other than Parent-Owned IP Rights licensed to customers or consideration from marketing and advertising partners in the Company or any ordinary course of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltybusiness;
(iii) any contract that contains any covenant restricting Contracts for the ability acquisition, sale or lease of material properties or material assets (by merger, purchase or sale of stock or assets or otherwise) other than for capital equipment in the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line ordinary course of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person Loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money (other than contingent or otherwise) or for the Company deferred purchase price of property or services by Parent or any of its subsidiariesSubsidiaries, or any Contract or instrument pursuant to which indebtedness for borrowed money (contingent or otherwise) “most favored nation” pricing provisionsor for the deferred purchase price of property or services may be incurred or is guaranteed by Parent or any of its Subsidiaries, or any guarantees by third parties for the benefit of Parent or any of its Subsidiaries, in each case having an outstanding principal amount in excess of $100,000;
(v) Mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any contract that provides for “exclusivity,” rights material property or material assets of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company Parent or any of its subsidiaries)Subsidiaries other than for capital equipment in the ordinary course of business;
(vi) Contracts containing a covenant expressly limiting in any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which material respect the Company freedom of Parent or any of its subsidiaries Subsidiaries to engage in any business with any Person or in any geographic area or to compete with any Person;
(vii) Contracts to which a Governmental Authority is a party;
(viiviii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture Contract that gives rise to any payment or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries benefit in excess of $1,000,000 is outstanding or may be incurred and all guarantees 100,000 as a result of or by the Company performance of this Agreement or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement)Transactions;
(ix) any contract that requires a consent Contracts for the leases or subleases of real property to or otherwise contains by Parent or a provision relating to a change Subsidiary, other than leases or subleases that do not involve aggregate payments in excess of control, or that would or could reasonably be expected to prevent, delay or impair $100,000 over the consummation of 12-month period commencing on the transactions contemplated herein, including the MergerAgreement Date;
(x) any contract requiring or otherwise relating to settlement agreement of any future capital expenditures by Legal Proceeding since the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;Parent Reference Date; and
(xi) any contract providing for indemnification by other agreement (or group of related agreements) the Company performance of which requires aggregate payments to or any its subsidiaries of any officer, director or employee of the Company from Parent or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of Subsidiaries after the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments Agreement Date in excess of $1,000,000; in each case for such contracts as to which the Company 250,000 annually, other than agreements with marketing or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract advertising partners entered into after in the date ordinary course of this Agreement business that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”are terminable by Parent upon less than 30 days’ notice without penalty.
(b) Prior Except as has not had and would not reasonably be expected to have, individually or in the date aggregate, a Parent Material Adverse Effect, each of this Agreement, the Company has provided complete and accurate copies of all Company Parent Material Contracts (including all amendmentsis, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Agreement Date, valid, binding and in full force and effect and is enforceable in accordance with its terms by Parent or the applicable Subsidiary, subject to the General Enforceability Exceptions. Neither Parent nor the Company nor any subsidiary of the Company applicable Subsidiary is in default in any material breach respect under any Parent Material Contract, nor, to the Knowledge of or material default under the terms or conditions of Parent, does any Company Material Contract and no event or condition has occurred that constitutesexist that, or, after with notice or lapse of time or both, would constitute, constitute a default in any material default on respect thereunder by Parent or the part applicable Subsidiary. As of the Company or any of its subsidiaries orAgreement Date, to the knowledge Knowledge of the CompanyParent, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, (i) no other party to any Company Parent Material Contract is in default, in any material respect, under any of the provisions, terms or conditions thereunder and (ii) no condition exists that with notice or lapse of time or both would constitute a default in any material respect by any such other party thereunder. As of the Agreement Date, to the Knowledge of Parent, neither Parent nor any of its Subsidiaries has received written notice of (i) any termination or cancellation of any Parent Material Contract or (ii) any past, present or future material breach of or material default under the terms any Parent Material Contract, or conditions granted to any third party any material rights, adverse or otherwise, that would constitute a material breach of any Company Material Contract. Each Company Parent Material Contract is (it being understood and agreed that any breach or default that gives the other party a valid and binding obligation of the Company and, right to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all termination shall be considered a material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium breach or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtmaterial default).
Appears in 2 contracts
Sources: Merger Agreement (Spark Networks SE), Agreement and Plan of Merger
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.22(a) of the Company Disclosure Schedules, Schedule sets forth a true and complete list of each Contract (and accurate list any amendments, supplements and modifications thereto), other than any Company Benefit Plan, to which the Company or any of the Company Subsidiaries is a party as of the date of this Agreement, or by which the Company, any of the Company Subsidiaries or any of their respective properties or assets is bound as of the date of this Agreement of(all Contracts described in clauses (i) through (x) of this Section 3.22(a), the “Material Contracts”), which:
(i) any contract that is required to be filed as an exhibit to a report or filing under “material contract” within the Securities Act or meaning of Item 601(b)(10) of Regulation S-K promulgated by the Exchange ActSEC;
(ii) is required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act and has not been so disclosed prior to the date hereof;
(iii) to the extent material to the business of the Company and the Company Subsidiaries, taken as a whole, relates to the management of any contract that involves annual payments Company Property or consideration from portion thereof which is not terminable on ninety (90) days’ notice or less without liability for any penalty or other payment;
(iv) contains covenants of the Company or any of its subsidiaries the Company Subsidiaries not to compete or engage in any line of more than $1,000,000 during business or compete with any twelve Person in any geographic area, in each case, in a manner that is material to the Company and the Company Subsidiaries, taken as a whole;
(12v) month period and is not terminable by (A) provides for a partnership or joint venture or a material strategic alliance, collaboration, co-promotion, co-marketing or similar arrangement (including any tenancy-in-common arrangement or understanding) between the Company or its subsidiary on 90 any Company Subsidiary and a third party, or (B) to the extent material to the business of the Company and the Company Subsidiaries, taken as a whole, involves a sharing of the Company’s, the Company Subsidiaries’ or fewer) days’ notice without penaltyany other Person’s revenues, profits, losses, costs or liabilities with any other Person (other than the Company or any of the Company Subsidiaries);
(iiivi) any contract provides for the pending purchase or sale, option to purchase or sell, right of first refusal, right of first offer or other right to purchase, sell, dispose of, or ground lease (by merger, by purchase or sale of assets or stock, by lease or otherwise), or that contains any covenant restricting limits or purports to limit the ability of the Company or any of its subsidiaries the Company Subsidiaries to own, operate, sell, transfer, pledge or affiliates otherwise dispose of, (A) any real property (including Parent after the Merger Closingany Company Property or any portion thereof) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(ivB) any contract granting to any person (other than material asset of the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation Company Subsidiary with a fair market value or any similar requirement in favor of any person (other purchase price greater than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party$20,000,000;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness contains continuing material obligations of the Company or a Company Subsidiary involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of real property, assets, capital stock or other equity interests, including any of its subsidiaries “earn-out” provisions or other contingent payment obligations that would reasonably be expected to result in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or any material payment obligation by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of Company Subsidiaries after the date of this Agreement;
(viii) relates to any contract with Indebtedness for borrowed money in excess of $1,000,000 (provided, that Section 3.22(a) of the Company Disclosure Schedule sets forth only (A) the principal Contract relating to any such Indebtedness or with respect (B) in the case of a mortgage, the applicable Company Property encumbered by such mortgage, the outstanding principal amount of such mortgage as of November 4, 2021, and whether such mortgage is subject to a labor unionany “lock-out” or similar provision as of September 28, guild or other employee representative (including any collective bargaining agreement or works council agreement2021);
(ix) provides for any contract that requires a consent to swap, forward, futures, warrant, option or otherwise contains a provision relating to a change of control, other derivative or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated hereinhedging transaction, including the Merger;any interest rate cap, interest rate collar, interest rate swap or other similar Contract or agreement; or
(x) provides for (A) annual aggregate payments or other consideration to the Company or any contract requiring of the Company Subsidiaries of more than $1,000,000 or otherwise relating to any future capital expenditures (B) annual aggregate payments or other consideration by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries Subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of more than $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”2,500,000.
(b) Prior The Company has made available to Parent a true and complete copy of each Material Contract. Each Material Contract is a valid and binding obligation of the Company or the Company Subsidiaries party thereto and, to the date knowledge of this Agreementthe Company, each other party thereto, in full force and effect and enforceable in accordance with its terms, except (i) as such enforceability is subject to the Company has provided complete Bankruptcy and accurate copies of all Equity Exception, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Contracts Adverse Effect and (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereofii) for any such Material Contract that is in effect as of on the date of this Agreement.
(c) hereof but will expire in accordance with its terms prior to the Closing Date. Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orSubsidiaries nor, to the knowledge of the Company, any other party thereto is in breach of or in default under any such Company Material Contract, nor and no event has occurred that, with the lapse of time or the giving of notice or both, would result in a material violation or material breach of, or give the Company, a Company Subsidiary or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity of performance of, or to cancel or terminate or modify, any Material Contract, in each case except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Since January 1, 2021 through the date of this Agreement, neither the Company or nor any of its subsidiaries the Company Subsidiaries has received any written notice of any such material default, event actual or condition. To the knowledge of the Company, no other party to any Company Material Contract is in alleged material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Industrial Logistics Properties Trust), Merger Agreement (Monmouth Real Estate Investment Corp)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) set forth in Section 3.19 of the Company Disclosure SchedulesSchedule and except for Company Benefit Plans, sets forth a complete and accurate list as of the date of this Agreement ofAgreement, neither the Company nor any of its Subsidiaries is a party to or bound by:
(i) any contract that “material contract” (as such term is required to be filed as an exhibit to a report or filing under defined in Item 601(b)(10) of Regulation S-K of the Securities Act or the Exchange ActSEC);
(ii) any contract Contract between the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any Subsidiary of the Company or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including (but not limited to) any Contract pursuant to which the Company or any Subsidiary of the Company has an obligation to indemnify such officer, director, Affiliate or family member;
(iii) any Contract that involves annual payments imposes any restriction on the right or consideration from ability of the Company, any of its Subsidiaries or any Affiliate of them to compete with any other person in any line of business or geographic region, or solicit any customer (or that following the Effective Time will restrict the right or ability of Parent or its Subsidiaries to engage in any line of business or compete in any geographic area);
(iv) any Contract that obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains a “most favored nation” or similar covenant;
(v) any acquisition or divestiture Contract or material licensing agreement that contains material indemnities or any “earnout” or other contingent payment obligations that are outstanding obligations of the Company or any of its subsidiaries Subsidiaries as of the date of this Agreement;
(vi) any Collective Bargaining Agreement or other works council agreement;
(vii) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(viii) any Contract that grants any right of first refusal or right of first offer or similar right with respect to any assets, rights or properties of the Company or its Subsidiaries (A) for, or that would reasonably be expected to result in, total consideration of more than $1,000,000 during 10,000,000 or (B) with a fair market value in excess of $10,000,000;
(ix) any twelve (12) month period and is not terminable Contract that provides for the acquisition or disposition by the Company or any of its subsidiary on 90 Subsidiaries of any assets (other than acquisitions or fewerdispositions of assets in the ordinary course of business) days’ notice without penaltyor a business (whether by merger, sale of stock or otherwise) that contain ongoing obligations that are material to the Company and the Company’s Subsidiaries, taken as a whole;
(iiix) any contract that contains joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any covenant joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(xi) any Contract expressly limiting or restricting the ability of the Company or any of its subsidiaries Subsidiaries (A) to make distributions or affiliates (including Parent after declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the Merger Closing) to: (x) conduct or compete in any material line of businesscase may be, (yB) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than make loans to the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic allianceSubsidiaries, or other similar agreements (C) to which grant liens on the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness property of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by Subsidiaries;
(xii) any Contract that obligates the Company or any of its subsidiaries of debt obligations of Subsidiaries to make any other loans, advances or capital contributions to, or investments in, any person, including except for (A) loans or advances for indemnification, attorneys’ fees, or travel and other business expenses in the respective aggregate principal amounts outstanding as ordinary course of business, (B) extended payment terms for customers in the ordinary course of business, (C) prepayment of Taxes for repatriated employees of the date of this Agreement;
Company and its Subsidiaries or (viiiD) any contract with loans, advances or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of controlcapital contributions to, or investments in, any Person that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director is not an Affiliate or employee of the Company or any not in excess of its subsidiaries; and$25,000,000 individually;
(xiixiii) any settlement agreement entered into since July 1, 2013 (A) with a Governmental Entity, (B) that requires the Company and its Subsidiaries to pay more than $25,000,000 after the date of this Agreement or (C) imposes any restrictions on the business of the Company or its Subsidiaries;
(xiv) any Contract with a Top Customer, Top Distributor or Top Supplier (excluding purchase orders issued in the ordinary course of business);
(xv) any Contract that involved the payment of more than $10,000,000 by the Company and its Subsidiaries in fiscal year 2016 or that is expected to result in the payment of such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding Contracts (A) with customers, distributors, suppliers or Representatives or (B) that are purchase orders issued in the ordinary course of business);
(xvi) any Contract that involved the receipt of more than $10,000,000 by the Company and its Subsidiaries in fiscal year 2016 or that is expected to result in the receipt of such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding Contracts (A) with customers, distributors, suppliers or Representatives or (B) that are purchase orders issued in the ordinary course of business);
(xvii) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service and under which the Company paid more than $5,000,000 to the relevant supplier in fiscal year 2016 or that is expected to result in the payment of such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding purchase orders issued in the ordinary course of business);
(xviii) any material Government Contract that has not been closed out; or
(xix) any contract relating to the creation of any acquisition Lien (by merger, consolidation, acquisition other than Permitted Liens) with respect to any material asset of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any Subsidiary of its subsidiaries the Company. All contracts of the types referred to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xiixix) above (whether or not set forth on Section 3.19 of this Section 3.18(a) (and each contract entered into after the Company Disclosure Schedule), are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement that would have been described in any a complete and correct copy of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “each Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) Contract as in effect as of on the date of this Agreement.
(cb) Neither the Company nor any subsidiary Subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orand, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms of any Company Material Contract and no event has occurred or conditions not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the knowledge of the Company, through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach of or default under the terms of any Company Material Contract, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of the Company, is of each other party thereto (except in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such each case as enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to affecting creditors’ rights generally generally, and (ii) equitable remedies that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought), and is in full force and effect, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract and as of the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract prior to its stated expiration date, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) As of the date of this Agreement, no Top Supplier, Top Customer or Top Distributor has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the Company, given notice to the Company or any Subsidiary of the Company of any intention to cancel, terminate or substantially curtail its relationship with the Company or any Subsidiary of the Company, or, to the knowledge of the Company, threatened to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Linear Technology Corp /Ca/), Merger Agreement (Analog Devices Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) this Agreement, agreements filed as exhibits to the Company SEC Documents, Schedule 3.18(a) Documents or as set forth in Section 3.21 of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement ofAgreement, neither the Company nor any of its Subsidiaries is a party to or expressly bound by any Contract (excluding any Company Benefit Plan) that:
(i) any contract that would constitute a “material contract” (as such term is required to be filed as an exhibit to a report or filing under defined in Item 601(b)(10) of Regulation S-K of the Securities Act or the Exchange Act);
(ii) contains a non-compete, non-solicit, exclusivity or similar restriction that materially restricts the conduct of any contract that involves annual payments or consideration from line of business by the Company or any of its subsidiaries Affiliates or the solicitation of more than $1,000,000 during any twelve (12) month period and is not terminable by business from any third party or upon consummation of the Company Merger will materially restrict the ability of the Surviving Corporation or any of its subsidiary on 90 (Affiliates to engage in any line of business or fewer) days’ notice without penaltyin any geographic region or to solicit any business from any third party;
(iii) contains a non-solicit of the employees of any contract entity or similar restriction that materially restricts solicitation of management-level or professional prospective hires or upon consummation of the Merger will materially restrict the ability of the Surviving Corporation or any of its Affiliates to solicit the employment or services of any management-level or professional prospective hire (in each case, other than customary non-solicitation provisions included in non-disclosure agreements);
(iv) that is a settlement, consent or similar agreement that would require the Company or any of its Subsidiaries to pay consideration of more than $500,000 after the date of this Agreement or that contains any covenant restricting material continuing obligations of the Company or any of its Subsidiaries;
(v) that includes a material indemnification obligation of the Company or any of its Subsidiaries which was granted outside of the Ordinary Course of Business;
(vi) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiary could be required to sell, as applicable, any equity interests of any person or material amount of assets;
(vii) that provides any current employees, officers or directors of the Company or any Company Subsidiary with annual base compensation in excess of $275,000, other than Contracts that are terminable without penalty or notice or employment Contracts entered into on standard Governmental Entity forms;
(viii) is a Contract that involves the payment or delivery of cash or other consideration or minimum purchase obligations (by or to the Company or any Company Subsidiary) in an amount or having a value in excess of $5,000,000 in the aggregate, or contemplates or involves the performance of services (by or for the Company or any Company Subsidiary) having a value in excess of $5,000,000 in the aggregate;
(ix) is a Company Real Property Lease pursuant to which the Company or any of its Subsidiaries leases real property that is material to the business of the Company or any of its Subsidiaries;
(x) is a Contract providing for the purchase of goods or services or the development or construction of, or additions or expansions to, any property or equipment under which the Company or any Company Subsidiary has, or expects to incur, costs or obligations in excess of $5,000,000 in the aggregate;
(xi) that is material and obligates the Company or any Company Subsidiary, or will obligate the Surviving Corporation, to provide a party with “most favored nation” or “most favored customer” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries;
(xii) provides for the formation, creation, operation, management or control of any material joint venture, partnership, strategic alliance, collaboration or other similar arrangement with a third party;
(xiii) is a Contract relating to any material currency or other hedging arrangement;
(xiv) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any if its Subsidiaries or any guaranty of such obligations or guarantee of obligations of any Person that is not the Company or a Subsidiary (other than indebtedness among the Company and/or any of its Subsidiaries), in each case in excess of $1,000,000 individually, or $5,000,000 in the aggregate;
(xv) provides for the acquisition or disposition by the Company or any of its Subsidiaries of any business (whether by merger, sale of stock, sale of assets or otherwise), or any real property, that would, in each case, reasonably be expected to result in the receipt or making by the Company or any Subsidiary of the Company of future payments (including “earnout” or other material contingent payment obligations) in excess of $1,000,000, in each case, except for purchases and sales of goods, services or inventory in the Ordinary Course of Business;
(xvi) obligates the Company or any Subsidiary of the Company to make any future capital investment or capital expenditure outside the Ordinary Course of Business and in excess of $500,000;
(xvii) limits or restricts the ability of the Company or any of its subsidiaries Subsidiaries to declare or affiliates (including Parent after the Merger Closing) to: (x) conduct pay dividends or compete make distributions in any material line respect of businesstheir capital stock, (y) compete with any person partner interests, membership interests or (z) operate in any geographic areaother equity interests;
(ivxviii) any contract granting pursuant to any person (other than which the Company or any of its subsidiaries) “most favored nation” pricing provisionsthe Company Subsidiaries receives from any third party a license or similar right to any Intellectual Property that is material to the Company, other than licenses with respect to software that is generally commercially available;
(vxix) any contract that provides for “exclusivity,” rights is a Contract entered into outside of first refusalthe Ordinary Course of Business, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements pursuant to which the Company or any of its subsidiaries Subsidiaries is a party;, or is otherwise bound, and the contracting counterparty of which is a Governmental Entity; or
(viixx) that is a Contract (or form thereof and a list of the parties thereto) between the Company or any loan agreementCompany Subsidiary, credit agreementon the one hand, noteand any officer, debenture, bond, mortgage, guarantee, indenture director or affiliate (other contract (collectively, “debt obligations”than a wholly-owned Company Subsidiary) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company Subsidiary or any of its subsidiaries of debt obligations of any other person, including the their respective aggregate principal amounts outstanding “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the date of this Agreement;
Exchange Act), on the other hand (viii) other than any contract with or with respect to Contract that is a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreementCompany Benefit Plan);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation . Each Contract of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract type described in any of clauses (i) through – (xiixx) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement3.21(a) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary Subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on Contract. To the part of the Company or any of its subsidiaries or, to the knowledge Knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge as of the Companydate of this Agreement, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, or the Subsidiary of the Company that is party thereto and to the knowledge Knowledge of the Company, of each other party thereto, and is in full force and effect, enforceable in accordance with its terms in all material respectssubject to the Enforceability Exceptions, except that (i) such enforcement may as would not or would not reasonably be subject expected 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 material to the discretion of the court before which Company or any proceeding therefor may be broughtMaterial Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Enerflex Ltd.), Merger Agreement (Exterran Corp)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to Neither the Company SEC Documents, Schedule 3.18(a) nor any of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement ofits Subsidiaries is party to or bound by any:
(i) any contract Contracts that is would be required to be filed by the Company as an exhibit a “material contract” pursuant to a report or filing Item 601(b)(10) of Regulation S-K under the Securities Act or the Exchange Act;
(ii) Contracts relating to any contract partnership, strategic alliance or joint venture that involves annual payments or consideration from is material to the Company or any of and its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltySubsidiaries, taken as a whole;
(iii) Contracts pursuant to which the Company or any contract Subsidiary of the Company (A) has any material continuing “earn-out” or other material contingent payment obligations or (B) has any material indemnification obligations that, in either case, were not entered into in the ordinary course of business;
(iv) Contracts that contains (i) limit in any covenant restricting material respect the ability of the Company or any of its subsidiaries Subsidiaries to compete with or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete to provide services in any material line of business, (y) compete business or with any person Person or (z) operate in any geographic area;
area or market segment or (ivii) provide any contract granting to any person (other than the Company or any of its subsidiaries) standstill, “most favored nation” provision or equivalent preferential pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusalterms, rights of first negotiation exclusivity or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements obligations to which the Company or any of its subsidiaries Subsidiaries is subject or a partybeneficiary thereof, which, in the case of clauses (i) and (ii), is material to the Company and its Subsidiaries taken as a whole;
(v) Contracts that are material Collective Bargaining Agreements;
(vi) Contracts with (A) any beneficial owner (as defined in Rule 13d-3 under the ▇▇▇▇ ▇▇▇) of 5% or more of any class of securities of the Company or any Company Subsidiary or (B) any Affiliate or “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the ▇▇▇▇ ▇▇▇) of any of the foregoing, including any shareholders agreement, investors’ rights agreement, registration rights agreement, tax receivables agreement (other than the Tax Receivable Agreement) or similar or related Contracts;
(vii) any Contracts that (A) are a material indenture, loan agreementor credit Contract, credit agreement, loan note, debenturemortgage Contract, bond, mortgage, guarantee, indenture letter of credit or other contract (collectivelyContract representing, “debt obligations”) pursuant to which or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of its subsidiaries the Company in excess of $1,000,000 5,000,000, (B) is outstanding or may be incurred and all guarantees of or a guarantee by the Company or any Subsidiary of its subsidiaries of debt obligations the Company of any indebtedness for borrowed money or similar obligation of any Person other person, including than the respective aggregate principal amounts outstanding as Company or a wholly-owned Subsidiary of the date Company or (C) that become due and payable as a result of this Agreement;the transactions contemplated hereby; or
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as Contracts pursuant to which the Company or any of its subsidiaries Subsidiaries (i) obtain the right to use, or a covenant not to be sued under, any Intellectual Property (other than non-exclusive licenses for commercially available off-the-shelf software that is generally available for an annual cost of less than $100,000) or (ii) grants the right to use, or a party or by which any covenant not to be sued under, Intellectual Property, in the case of them is bound. Each such contract described in any each of clauses (i) through and (xii) of this Section 3.18(a) (ii), that is material to the Company and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein its Subsidiaries, taken as a “Company Material Contract”whole.
(b) Prior The Company has made available to Parent prior to the date hereof a complete and correct copy of this Agreement, each Contract listed or required to be listed in Section 5.20(a) of the Company has provided complete and accurate copies of all Disclosure Schedule (each, a “Material Contract”). Except for breaches, violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Contracts Adverse Effect, (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereofi) in effect as each of the date of this Agreement.
Material Contracts is valid, binding and in full force and effect and (cii) Neither neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orSubsidiaries, nor to the knowledge Knowledge of the Company, any other party thereto under any such Company to a Material Contract, nor has breached or violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a breach or default under the provisions of such Material Contract, and since January 1, 2015, neither the Company or nor any of its subsidiaries Subsidiaries has received notice that it has breached, violated or defaulted under any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Tyson Foods Inc), Merger Agreement (Tyson Foods Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aany Government Contract or Government Bid that are set forth instead on Section 4.16(a) of the Company Disclosure SchedulesLetter, Section 4.15(a) of the Company Disclosure Letter sets forth the following (each of which, together with each Lease shall constitute a complete and accurate list as of the date of this Agreement of:“Material Contract”):
(i) any contract that “material contract” (as such term is required to be defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC), whether or not filed as an exhibit to a report or filing under by the Securities Act or Company with the Exchange ActSEC;
(ii) any contract that involves annual payments employment or consideration from consulting Contract (in each case with respect to which the Company or any a Subsidiary of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company has continuing obligations as of the date hereof) with any current (A) officer of the Company, (B) member of the Company Board, or its subsidiary on 90 (C) Company Employee providing for an annual base salary or fewer) days’ notice without penaltypayment in excess of $100,000;
(iii) any contract Contract providing for indemnification or any guaranty by the Company or any Subsidiary thereof, in each case that contains is material to the Company and its Subsidiaries, taken as a whole, other than any covenant restricting Contract providing for indemnification of third party claims under Contracts with customers entered into in the ability ordinary course of business;
(iv) any Contract that purports to limit in any material respect the right of the Company or any of its subsidiaries or affiliates Subsidiaries (including Parent or, at any time after the Merger Closingconsummation of the Merger, Parent or any of its Subsidiaries) to: to (xA) conduct or compete engage in any material line of business, (yB) compete with any person Person or solicit any client or customer, or (zC) operate in any geographic areageographical location;
(ivv) any contract granting Contract relating to any person the disposition or acquisition, directly or indirectly (other than by merger, sale of stock, sale of assets, or otherwise), by the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights Subsidiaries of first refusal, rights of first negotiation assets or any similar requirement in favor capital stock or other equity interests of any person Person (other than the Company A) with a fair market value or any aggregate consideration under such Contract in excess of its subsidiaries);
$1,000,000 and (viB) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements pursuant to which the Company or any of its subsidiaries is Subsidiaries has a partycontinuing material earn-out or other contingent payment obligation or any material indemnification obligation;
(viivi) any loan agreementContract that grants any right of first refusal, credit agreementright of first offer, noteor similar right with respect to any material assets, debenturerights, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness properties of the Company or any of its subsidiaries Subsidiaries;
(vii) any Contract that contains any provision that requires the purchase of all or a material portion of the Company’s or any of its Subsidiaries’ requirements for a given product or service from a given third party, which product or service is material to the Company and its Subsidiaries, taken as a whole;
(viii) 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 Merger will obligate Parent, the Surviving Corporation, or any of their respective Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party;
(ix) any partnership, joint venture, limited liability company agreement, or similar Contract relating to the formation, creation, operation, management, or control of any material joint venture, partnership, or limited liability company, other than any such Contract solely between the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries;
(x) any mortgages, indentures, guarantees, loans, or credit agreements, security agreements, or other Contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, other than (A) accounts receivables and payables, (B) loans to Subsidiaries of the Company, or (C) for principal amounts less than $250,000;
(xi) any employee collective bargaining agreement or other Contract with any labor union;
(xii) any Company IP Agreement, other than licenses for shrinkwrap, clickwrap, or other similar commercially available off-the-shelf software that has not been modified or customized by a third party for the Company or any of its Subsidiaries;
(xiii) any Contract that is 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 $1,000,000 is outstanding 150,000 annually on account of products or may be incurred and all guarantees of or services rendered by the Company or any of its subsidiaries Subsidiaries or (B) the purchase of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with products or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures services by the Company or any of its subsidiaries Subsidiaries from any Person in excess of $1,000,000 150,000 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 aggregate;Company Disclosure Letter, but shall be deemed to be a Material Contract for purposes of this Agreement; or
(xixv) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of Contract which is not otherwise described in clauses (i)-(xiv) above that is material to the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”Subsidiaries.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (CRAWFORD UNITED Corp), Merger Agreement (CRAWFORD UNITED Corp)
Material Contracts. (a) Except for contracts (including all amendments those agreements and modifications thereto) 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 January 1, 2010 and prior to the date hereof or as Previously Disclosed, neither Company SEC Documentsnor any of its Subsidiaries is a party to, Schedule 3.18(abound 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 Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
SEC’s Regulation S-K; (ii) that contains a non-compete or client or customer non-solicit requirement or any contract other provisions that involves annual payments materially restricts the conduct of, or consideration from the manner of conducting, any line of business of Company or any of its subsidiaries affiliates (or, upon consummation of more the Merger, of Purchaser or any of its affiliates); (iii) that obligates Company or any of its affiliates (or, upon consummation of the Merger, Purchaser or any of its affiliates) to conduct business with any third party on an exclusive or preferential basis; (iv) that requires referrals of business or requires Company or any of its affiliates to make available investment opportunities to any person on a priority or exclusive basis; (v) that relates to the incurrence of indebtedness by Company or any of its Subsidiaries (other than $1,000,000 during deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with past practice) including any twelve sale and leaseback transactions, capitalized leases and other similar financing transactions; (12vi) month period and is not terminable that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of Company or any of its Subsidiaries; (vii) that limits the payment of dividends by Company or any of its Subsidiaries; (viii) that relates to a material joint venture, partnership, limited liability company agreement or other similar agreement or arrangement with any third party, or to the formation, creation or operation, management or control of any material partnership or joint venture with any third parties, except in each case that relate to merchant banking investments by the Company or its subsidiary on 90 Subsidiaries in the ordinary course of business; (ix) that relates to an acquisition, divestiture, merger or fewersimilar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) days’ notice without penalty;
that are still in effect; (iiix) any contract that contains any covenant restricting the ability of the provides for payments to be made by Company or any of its subsidiaries Subsidiaries upon a change in control thereof; (xi) that is a consulting agreement or affiliates (including Parent after data processing, software programming or licensing contract involving the Merger Closing) to: (x) conduct or compete in any material line payment of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person more than $200,000 per annum (other than the any such contracts which are terminable by Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) Subsidiaries on 60 days or less notice without any contract that provides for “exclusivity,” rights of first refusalrequired payment or other conditions, rights of first negotiation or any similar requirement in favor of any person (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 subsidiariesSubsidiaries a license to Company Licensed Intellectual Property (excluding licenses to shrink-wrap or click-wrap software);
, in each case that involves the payment or more than $200,000 per annum or is material to the conduct of the businesses of the Company; (vixiii) to which any contract relating affiliate, officer, director, employee or consultant of such party or any of its Subsidiaries is a party or beneficiary (except with respect to any joint venture, partnership, strategic allianceloans to, or other similar agreements deposit or asset management accounts of, directors, officers and employees entered into in the ordinary course of business and in accordance with all applicable regulatory requirements with respect to which it); or (xiv) that is otherwise material to the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness 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 complete copies of each Material Contract.
(i) Each Material Contract is a valid and legally binding agreement of Company or one of its Subsidiaries, as applicable, and, to the 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, (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 nor any of its subsidiaries Subsidiaries, and, to the Knowledge of Company, any counterparty or counterparties, is in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations breach of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
, and (biv) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred exists that constitutes, or, after notice or lapse of time or both, would will constitute, a material breach, violation or default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto Subsidiaries under any such Company Material Contract or provide any party thereto with the right to terminate such Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (West Coast Bancorp /New/Or/), Merger Agreement (Columbia Banking System Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documentsthis Agreement, Schedule 3.18(aSection 4.17(a) of the Company Disclosure Schedules, Letter sets forth a true and complete and accurate list list, as of the date of this Agreement Agreement, and the Acquired Companies have made available to Parent true and complete copies, of:
(i) each Contract to which any contract member of the Acquired Company Group is a party that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(iiA) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting restricts the ability of any member of the Acquired Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or Group to compete in any material line of businessbusiness or with any Person in any geographical area, (yB) compete with requires any person or (z) operate in member of the Acquired Company Group to conduct any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) business on a “most favored nationnations” pricing provisions;
basis with any third party or (vC) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person third party;
(ii) each Contract under which any member of the Acquired Company Group licenses Intellectual Property from or to any third party (other than (A) generally commercially available, off-the-shelf software programs and (B) non-exclusive licenses in the ordinary course of business), except for such licenses and sublicenses that are not material to the Acquired Company Group, taken as a whole;
(iii) any Contract pursuant to which any member of the Acquired Company Group will acquire any material ownership interest in any other Person or other business enterprise other than any Acquired Company Subsidiary, in each case, with a value greater than $1,000,000 after the date of its subsidiaries)this Agreement;
(iv) each Contract that constitutes a commitment relating to indebtedness for borrowed money or the deferred purchase price of property by any member of the Acquired Company Group (whether incurred, assumed, guaranteed or secured by any asset) in excess of $1,000,000, other than agreements solely between or among the members of the Acquired Company Group;
(v) each Contract for a Derivative Transaction;
(vi) each Contract (including any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements Company Real Property Lease) to which any member of the Acquired Company or any of its subsidiaries Group is a partyparty that provides for annual payments, receipts or expenditures in excess of $1,000,000;
(vii) any loan agreementContract that is a settlement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture conciliation or other contract (collectively, “debt obligations”) similar agreement with any Governmental Entity or pursuant to which any indebtedness member of the Acquired Company or Group will, in either case, have any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt material obligations of any other person, including the respective aggregate principal amounts outstanding as of after the date of this Agreement;
(viii) each (A) Labor Agreement respecting Business Employees; and (B) Contract with a Management Company providing for the engagement of Business Employees by any contract with or with respect member of the Acquired Company Group that would reasonably be expected to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement)result in annual payments by the members of the Acquired Company Group in excess of $1,000,000;
(ix) any contract Contract that requires a consent to (A) contains “earn out” or otherwise other contingent payment obligations, (B) guarantees any obligations of another Person or (C) contains a provision relating to a change of controlindemnity or similar obligations, or in each case, that would or could reasonably be expected to prevent, delay result in annual payments by or impair the consummation to any member of the transactions contemplated herein, including the MergerAcquired Company Group in excess of $1,000,000;
(x) any contract requiring or otherwise all Contracts relating to any future capital expenditures by the Company pending acquisition, swap, exchange, sale or other disposition of (or option to purchase, acquire, swap, exchange, sell or dispose of) any of its subsidiaries the assets or properties of any member of the Acquired Company Group (including any Oil and Gas Properties but excluding purchases and sales of Hydrocarbons), taken as a whole, for which the aggregate consideration (or the fair market value of such consideration, if non-cash) exceeds $1,000,000;
(xi) each joint development agreement, exploration agreement, participation, farmout, farm-in or program agreement or similar Contract (excluding joint operating agreements) that would reasonably be expected to require any member of the Acquired Company Group to make expenditures in excess of $1,000,000 in the aggregateany one calendar year period;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to Contract that contains a “take-or-pay” clause or any acquisition (by mergersimilar prepayment obligation, consolidationminimum volume commitment, acquisition capacity reservation fees or forward sale arrangement or obligation that otherwise guarantee or commit volumes of all or substantially all Hydrocarbons from any member of the assets Acquired Company Group’s Oil and Gas Properties at some future time without then or otherwisethereafter receiving full payment therefor; and
(xiii) from any person Contract providing for the purchase or divestiture or disposition sale by the any Acquired Company or any Acquired Company Subsidiaries of its subsidiaries Hydrocarbons, or related to Hydrocarbons or produced water or freshwater or Contracts for gathering, processing, transportation, treating, storage, blending or similar midstream services (each, a “Company Marketing Contract”) that (A) has a remaining term of greater than 90 days and does not allow any member of the Acquired Company Group to terminate it without penalty to any person member of material propertiesthe Acquired Company Group within 90 days, assets, capital stock (B) which would reasonably be expected to involve volumes in excess of 500 barrels of liquid Hydrocarbons per day or other equity interests, 1,500 MMcf of gas per day (in each case, involving payments in excess calculated on a yearly average basis) or (C) that contains acreage dedications of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is boundmore than 1,000 acres. Each such contract Contract described in any of clauses (i) through (xiixiii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) above is referred to herein as a “Company Material Specified Contract.”.
(b) Prior to As of the date of this Agreement, each of the Company has provided complete Specified Contracts is valid, binding and accurate copies enforceable on the applicable member of all the Acquired Company Material Contracts Group, as the case may be, and, to the Knowledge of the Acquired Company Group, each other party thereto, and is in full force and effect except (including all amendmentsi) for such failures to be valid, modifications, supplements, exhibits, schedules, annexes binding or other documents modifying enforceable or supplementing the terms thereof) to be in full force and effect as would not reasonably be expected, individually or in the aggregate, to be material to the Acquired Company Group, taken as a whole, or that would impair, hinder, or delay any member of the Acquired Company Group’s ability to perform its obligations under this Agreement and (ii) insofar as such enforceability may be limited by Creditors’ Rights. As of the date of this Agreement.
(c) Neither , to the Company nor any subsidiary Knowledge of the Acquired Company Group, there is in material breach of or material no default under the terms or conditions of any Company Material Specified Contract by any member of the Acquired Company Group or any other party thereto, and no event or condition has occurred that constitutes, or, after notice or with the lapse of time or both, the giving of notice or both would constitute, constitute a material default on the part thereunder by any member of the Acquired Company Group or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under thereto, in each case except as would not reasonably be expected, individually or in the aggregate, to be material to the Acquired Company Group, taken as a whole, or that would impair, hinder, or delay any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge member of the Company, no other party Acquired Company Group’s ability to any Company Material Contract is in material breach of or material default perform its obligations under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Pedevco Corp), Merger Agreement (Amplify Energy Corp.)
Material Contracts. (a) Except for contracts (including all amendments as set forth on Schedule 3.12(a) and modifications thereto) filed except as exhibits to the Company SEC Documentswould constitute an Excluded Asset or Excluded Liability, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date hereof, neither Seller nor any Subsidiary of this Agreement ofeither Seller is a party to, nor is either Seller, any Subsidiary of a Seller or any of their respective assets bound by, any Contract (each, a "Material Contract"):
(i) relating to (A) the employment (as an employee or consultant) or termination of employment of any Person by each Seller or any Subsidiary of either Seller which may not be terminated without penalty or other obligation (other than any severance payments required by law) by such Seller or, as the case may be, such Subsidiary within twelve (12) months from the date hereof, or (B) the payment to any Person by each Seller or any Subsidiary of either Seller of any bonus award which is contingent on a sale of such Seller, any Subsidiary of such Seller or any of their respective assets;
(ii) which contains material restrictions with respect to payment of dividends or any other distribution in respect of its capital stock;
(iii) relating to Indebtedness of each Seller or any of its Subsidiaries;
(iv) materially limiting the ability of either Seller or any Subsidiary of a Seller to manufacture, sell or distribute any product, to engage in any line of business or to compete with any Person;
(v) with any labor union or any employee organization;
(vi) pursuant to which either Seller or any Subsidiary of a Seller is entitled or obligated to acquire any assets with a value in excess of $250,000 from a third party other than the purchase of inventory in the ordinary course of business;
(vii) in the form of a performance, payment, and other bonds issued by a Seller that are guaranteed by any Affiliate of such Seller (the "Bonds"); or
(viii) pursuant to which either Seller or any its Subsidiary of a Seller is obligated to provide goods or services to another Person with a total Contract value in excess of $2,000,000.
(b) Except as set forth in Schedule 3.12(b) and except as otherwise would not reasonably be expected to have a Material Adverse Effect on the Business:
(i) there is no default under any contract Material Contract either by a Seller or any Subsidiary of a Seller or, to the Knowledge of the Sellers, by any other party thereto, and no event has occurred that is required to be filed as an exhibit to a report or filing under with the Securities Act lapse of time or the Exchange Actgiving of notice or both would constitute a default thereunder by a Seller or any Subsidiary of a Seller or, to the Knowledge of the Sellers, any other party;
(ii) no party to any contract that involves annual payments or consideration from the Company Material Contract has given written notice to a Seller or any Subsidiary of its subsidiaries a Seller of more than $1,000,000 during or made a claim in writing against a Seller or any twelve (12) month period and is not terminable by the Company Subsidiary or its subsidiary on 90 (a Seller with respect to any breach or fewer) days’ notice without penaltydefault thereunder;
(iii) any contract that contains any covenant restricting to the ability Knowledge of the Company Sellers, no party to any Material Contract intends to cancel, withdraw, modify or amend any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic areasuch Material Contract;
(iv) with respect to each Material Contract or Bid, (A) each Seller or its Subsidiaries has complied in all material respects with all material terms and conditions of such Material Contract or Bid, including all clauses, provisions and requirements incorporated expressly, by reference or by operation of law therein; (B) each Seller or its Subsidiaries has complied in all material respects with all requirements of any contract granting statute, rule, regulation or order pertaining to such Material Contract or Bid; (C) all representations and certifications executed, acknowledged or set forth in or pertaining to such Material Contract or Bid were current, accurate and complete in all material respects as of their effective date, and each Seller or its Subsidiaries has complied in all material respects with all such representations and certifications, including, without limitation, those required by or relating to the Foreign Corrupt Practices Act, the Cost Accounting Standards, and the regulations and rules relating to the submission of progress payment requests; (D) no Governmental Authority nor any person prime contractor, subcontractor or other Person has notified either Seller or their Subsidiaries in writing that either Seller or its Subsidiaries has breached or violated any statute, rule, regulation, certification, representation, clause, provision or requirement; (E) no termination for convenience, termination for default, cure notice or show cause notice has been issued (other than to the Company extent satisfied, cured or withdrawn); (F) no cost incurred by either Seller or its Subsidiaries has been disallowed in respect of any such Material Contract (in each case, other than costs not exceeding one percent (1%) of the value of the respective Material Contract); and (G) no money due to either Seller or its subsidiariesSubsidiaries has been withheld, reduced or set-off in respect of any such Material Contract (in each case, other than monies not exceeding one percent (1%) “most favored nation” pricing provisionsof the value of the respective Material Contract);
(v) there exist (A) no financing arrangements with respect to the performance of any contract Client Contract; (B) to the Knowledge of the Sellers, no material outstanding claims or requests for equitable or financial adjustments against the Sellers or their Subsidiaries, either by any party to a Material Contract, any Governmental Authority or by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Material Contract or Bid; (C) to the Knowledge of the Sellers, no facts that provides for “exclusivity,” rights are known by the Sellers upon which such a claim may be validly based in the future; and (D) to the Knowledge of first refusalthe Sellers, rights of first negotiation no material disputes between either Seller or its Subsidiaries and any party to a Material Contract, any Governmental Authority or any similar requirement in favor of prime contractor, subcontractor or vendor arising under or relating to any person (other than the Company or any of its subsidiaries);Client Contract; and
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness revenues and profits associated with each of the Company or any of its subsidiaries Client Contracts have been recorded in excess of $1,000,000 is outstanding or may be incurred accordance with GAAP, and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts there exists no uncompleted Client Contract as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts Company's estimated cost at completion (including all amendmentsmaterial and labor costs, modificationsother direct costs, supplementsoverheads, exhibits, schedules, annexes and engineering costs whether incurred or other documents modifying or supplementing the terms thereofyet to be incurred) in effect as of the date of this AgreementBalance Sheet Date exceeds the aggregate contract revenue recorded or to be recorded under such Client Contract through completion.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Tetra Tech Inc), Asset Purchase Agreement (Foster Wheeler LTD)
Material Contracts. (a) Except for contracts (including Schedule 3.14 sets forth all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedulesfollowing contracts, sets forth a complete and accurate list as of the date of this Agreement of:
agreements, commitments (i"Contracts") any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries Subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture party or other contract by which it is bound (collectively, “debt obligations”the "Material Contracts"): (i) pursuant to which Contracts with any indebtedness current officer or director of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding Subsidiaries; (ii) Contracts with any labor union or may be incurred and all guarantees of or by the Company or association representing any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiariesSubsidiaries; and
(xiiiii) Contracts pursuant to which any contract relating party is required to purchase or sell a stated portion of its requirements or output from or to another party; (iv) Contracts for the sale of any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets of the Company or otherwise) from any of its Subsidiaries other than in the ordinary course of business or for the grant to any person of any preferential rights to purchase any of its assets; (v) joint venture agreements; (vi) material Contracts containing covenants of the Company or divestiture any of its Subsidiaries not to compete in any line of business or disposition with any person in any geographical area or covenants of any other person not to compete with the Company or any of its Subsidiaries in any line of business or in any geographical area; (vii) Contracts relating to the acquisition by the Company or any of its subsidiaries to Subsidiaries of any person of material properties, assets, operating business or the capital stock of any other person; (viii) Contracts relating to the borrowing of money; or (ix) any other equity interestsContracts, other than Real Property Leases, which involve the expenditure of more than $50,000 in each case, involving payments in excess of the aggregate or $1,000,000; in each case for such contracts as to which the Company 25,000 annually or require performance by any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after more than one year from the date of this Agreement that would hereof. There have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior made available to the date of this AgreementPurchaser, the Company has provided its affiliates and their representatives true and complete and accurate copies of all Company of the Material Contracts. Except as set forth on Schedule 3.14, all of the Material Contracts (including all amendmentsand other agreements are in full force and effect and are the legal, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effectand/or its Subsidiaries, enforceable against them in accordance with its terms in all material respectsterms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other and similar Laws, now or hereafter in effect, relating to laws affecting creditors’ ' rights and remedies generally and subject, as to enforceability, to general principles of equity (ii) equitable remedies regardless of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and whether enforcement is sought in a proceeding at law or in equity). Except as set forth on Schedule 3.14, neither the Company nor any Subsidiary is in default in any material respect under any Material Contracts, nor, to the discretion knowledge of the court before which Company, is any proceeding therefor may be broughtother party to any Material Contract in default thereunder in any material respect.
Appears in 2 contracts
Sources: Agreement and Plan of Amalgamation (Thomas Equipment, Inc.), Amalgamation Agreement (Maxim Mortgage Corp/)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to Neither the Company SEC Documentsnor any of its Subsidiaries is a party to or bound by any contract, Schedule 3.18(aarrangement, lease, commitment or understanding (whether written or oral) (i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company Disclosure Schedules, sets forth a complete and accurate list as of SEC) to be performed after the date of this Agreement of:
(i) any contract that is required has not been filed or incorporated by reference in the Company SEC Reports filed prior to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
date hereof, (ii) that contains (A) any contract that involves annual payments non-competition or consideration from exclusive dealing agreement, or any other agreement or obligation which purports to limit or restrict in any respect the Company ability of the Company, the Surviving Corporation or any of their Subsidiaries or their businesses or, following consummation of the Transaction and the other transactions contemplated hereby, Parent or its subsidiaries Affiliates, to solicit customers or the manner in which, or the localities in which, all or any portion of more than $1,000,000 during any twelve (12) month period and is not terminable by the business of the Company or its subsidiary on 90 Subsidiaries or, following consummation of the transactions contemplated by this Agreement, Parent or its Affiliates, is or would be conducted or (or fewer) days’ notice without penalty;
(iiiB) any contract agreement that contains grants any covenant restricting right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its subsidiaries Subsidiaries or, following consummation of the Transaction, Parent or affiliates (including Parent after the Merger Closing) to: (x) conduct its Affiliates, to own or compete in operate any material line of assets or business, (yiii) compete with any person containing a “most favored nation” clause or (z) operate in any geographic area;
(iv) any contract granting other similar term providing preferential pricing or treatment to any person a party (other than the Company or any of its subsidiariesSubsidiaries) “most favored nation” pricing provisions;
that is material to the Company or its Subsidiaries, (viv) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than between the Company or any of its subsidiariesSubsidiaries, on the one hand, and any Affiliate, director or officer (or, to the Company’s Knowledge, any of their respective Affiliates);
, on the other hand, other than (viA) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which contracts between the Company or and any of its subsidiaries is a party;
Subsidiaries, (viiB) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness contracts among Subsidiaries of the Company and (C) contracts with Parent or any of its subsidiaries in excess of $1,000,000 is outstanding Affiliates or may be incurred and all guarantees of (v) that, upon the execution, delivery or performance by the Company of this Agreement or any of its subsidiaries of debt obligations the consummation of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated hereinhereby, including the Merger;
(x) requires any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock consent or other equity interestsaction by any Person under, in each caseconstitutes a default, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party an event that, with or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after without notice or lapse of time or both, would constituteconstitute a default, a material default on under, or causes or permits the part termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company or any of its subsidiaries or, Subsidiaries is entitled and that is material to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation business of the Company andand its Subsidiaries, to the knowledge taken as a whole. Each contract, arrangement, commitment or understanding of the Companytype described in this Section, whether or not set forth in the Company Disclosure Schedule, is referred to as a “Material Contract”.
(b) Except for breaches, violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Material Contracts is valid and in full force and effect, enforceable in accordance with its terms in all material respects, 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 effect and (ii) equitable remedies neither the Company nor any of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and its Subsidiaries, nor to the discretion Company’s Knowledge any other party to a Material Contract, has violated any provision of, or taken or failed to take any action which, with or without notice, lapse of time, or both, would constitute a default under the court before which provisions of such Material Contract, and neither the Company nor any proceeding therefor may be broughtof its Subsidiaries has received notice that it has breached, violated or defaulted under any Material Contract.
Appears in 2 contracts
Sources: Transaction Agreement (Sovereign Bancorp Inc), Transaction Agreement (Banco Santander, S.A.)
Material Contracts. (a) Except for contracts (including all amendments those agreements and modifications thereto) 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 SEC Documentsnor any of its Subsidiaries is a party to, Schedule 3.18(abound 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 Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
SEC’s Regulation S-K; (ii) that contains a non-compete or client or customer non-solicit requirement or any contract other provisions that involves annual payments restricts the conduct of, or consideration from the manner of conducting, any line of business of Company or any of its subsidiaries affiliates (or, upon consummation of more the Merger, of Purchaser or any of its affiliates); (iii) that obligates Company or any of its affiliates (or, upon consummation of the Merger, Purchaser or any of its affiliates) to conduct business with any third party on an exclusive or preferential basis; (iv) that requires referrals of business or requires Company or any of its affiliates to make available investment opportunities to any person on a priority or exclusive basis; (v) that relates to the incurrence of indebtedness by Company or any of its Subsidiaries (other than $1,000,000 during deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with past practice) including any twelve sale and leaseback transactions, capitalized leases and other similar financing transactions; (12vi) month period and is not terminable that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of Company or any of its Subsidiaries; (vii) that limits the payment of dividends by Company or any of its Subsidiaries; (viii) that relates to a material joint venture, partnership, limited liability company agreement or other similar agreement or arrangement with any third party, or to the formation, creation or operation, management or control of any material partnership or joint venture with any third parties, except in each case that relate to merchant banking investments by the Company or its subsidiary on 90 Subsidiaries in the ordinary course of business; (ix) that relates to an acquisition, divestiture, merger or fewersimilar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) days’ notice without penalty;
that are still in effect; (iiix) any contract that contains any covenant restricting the ability of the provides for payments to be made by Company or any of its subsidiaries Subsidiaries upon a change in control thereof; (xi) that is a consulting agreement or affiliates (including Parent after data processing, software programming or licensing contract involving the Merger Closing) to: (x) conduct or compete in any material line payment of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person more than $200,000 per annum (other than the any such contracts which are terminable by Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) Subsidiaries on 60 days or less notice without any contract that provides for “exclusivity,” rights of first refusalrequired payment or other conditions, rights of first negotiation or any similar requirement in favor of any person (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 subsidiariesSubsidiaries a license to Company Licensed Intellectual Property (excluding licenses to shrink-wrap or click-wrap software);
, in each case that involves the payment or more than $200,000 per annum or is material to the conduct of the businesses of the Company; (vixiii) to which any contract relating affiliate, officer, director, employee or consultant of such party or any of its Subsidiaries is a party or beneficiary (except with respect to any joint venture, partnership, strategic allianceloans to, or other similar agreements deposit or asset management accounts of, directors, officers and employees entered into in the ordinary course of business and in accordance with all applicable regulatory requirements with respect to which it); or (xiv) that is otherwise material to the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness 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 complete copies of each Material Contract.
(i) Each Material Contract is a valid and legally binding agreement of Company or one of its Subsidiaries, as applicable, and, to the 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, (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 nor any of its subsidiaries Subsidiaries, and, to the Knowledge of Company, any counterparty or counterparties, is in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations breach of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
, and (biv) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred exists that constitutes, or, after notice or lapse of time or both, would will constitute, a material breach, violation or default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto Subsidiaries under any such Company Material Contract or provide any party thereto with the right to terminate such Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Hilltop Holdings Inc.), Merger Agreement (Plainscapital Corp)
Material Contracts. (a) Except for contracts (including all amendments this Agreement and modifications thereto) filed as exhibits to the Company SEC DocumentsReassignment Agreement, Schedule 3.18(a) Section 4.14 of the Company Huya Disclosure Schedules, Schedule sets forth a true and complete and accurate list as of all of the date following types of this Agreement ofContracts that currently remain in effect (x) to which Huya or any of its Subsidiaries is a party or which binds or affects their respective properties or assets, and (y) have not been filed with or furnished to the SEC as an exhibit to the Huya SEC Reports:
(i) any contract Contract that is would be required to be filed as an exhibit or furnished by Huya pursuant to a report or filing Item 19 and paragraph 4 of the Instructions to Exhibits of Form 20-F under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments Contract granting a right of first refusal, first offer or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyfirst negotiation;
(iii) any contract that contains any covenant restricting Contract relating to (A) the ability formation, creation, operation, management or control of a partnership, joint venture, limited liability company or similar arrangement, (B) strategic cooperation or partnership arrangements, or (C) other similar agreements outside the Company ordinary course of business involving a sharing of profits, losses, costs or liabilities, in each case, more than RMB20,000,000, by Huya or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic areaSubsidiaries;
(iv) any contract granting to any person Contract for the acquisition, sale or lease (other than the Company including leases in connection with financing transactions) of material properties or any assets of its subsidiaries) “most favored nation” pricing provisionsHuya (by merger, purchase or sale of assets or stock or otherwise);
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or Contract with any similar requirement in favor of any person (other than the Company or any of its subsidiaries)Governmental Entity;
(vi) any contract relating to Contract granting or evidencing a Lien on any joint venture, partnership, strategic alliance, material properties or other similar agreements to which the Company assets of Huya or any of its subsidiaries is Subsidiaries, other than a partyPermitted Lien;
(vii) any loan agreementContract involving the capital expenditure by Huya or its Subsidiaries, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant relating to which any indebtedness of the Company for borrowed money or any of its subsidiaries financial guaranty, in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other personeach case, including the respective aggregate principal amounts outstanding as of the date of this Agreementmore than RMB20,000,000;
(viii) any contract with Contract involving a loan (other than accounts receivable from trade debtors in the ordinary course of business) or with respect advance to (other than travel and entertainment allowances to the employees of the Company and any of its Subsidiaries extended in the ordinary course of business), or investment in, any Person, in each case, more than RMB20,000,000, other than a labor unionwholly-owned Subsidiary of Huya or any Contract relating to the making of any such loan, guild advance or other employee representative (including any collective bargaining agreement or works council agreement)investment that is material to the financial status of Huya;
(ix) any contract non-competition Contract or other Contract that requires a consent purports to limit, curtail or otherwise restrict in any material respect the ability of Huya or any of its Subsidiaries to compete in any geographic area, industry or line of business;
(x) any Contract that contains a provision relating put, call or similar right pursuant to which Huya or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests or assets of any Person that have fair market value or purchase price of more than RMB20,000,000;
(xi) any Contracts involving any resolution or settlement of any actual or threatened material litigation, arbitration, claim or other dispute, more than RMB5,000,000;
(xii) any Contract (other than Contracts granting Huya Options / Huya RSU Awards) giving the other party the right to terminate such Contract as a change result of control, this Agreement or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated hereinby this Agreement, including the Merger;
(xxiii) any contract requiring Contract that contains restrictions with respect to (A) payment of dividends or otherwise relating any distribution with respect to any future capital expenditures by the Company equity interests of Huya or any of its subsidiaries in excess Subsidiaries, (B) pledging of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries share capital of any officer, director or employee of the Company Huya or any of its subsidiaries; and
Subsidiaries or (xiiC) any contract relating to any acquisition (issuance of guaranty by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company Huya or any of its subsidiaries to Subsidiaries;
(xiv) any person of material properties, assets, capital stock or other equity interestsHuya IP Agreements with an aggregate contract value exceeding RMB20,000,000;
(xv) Contracts with top twenty streamers and top twenty talent agencies, in each case, involving payments in excess terms of $1,000,000contract value; in each case for such contracts as or
(xvi) any other Contract, a breach or termination of which could reasonably be expected to which the Company or any of its subsidiaries is have a party or by which any of them is boundHuya Material Adverse Effect. Each such contract Contract of the type described in any of clauses (i) through (xii) of this Section 3.18(a) (4.14(a), together with any Contract that has been filed or furnished by Huya pursuant to Item 19 and each contract entered into after paragraph 4 of the date Instructions to Exhibits of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on Form 20-F under the date of this Agreement) Exchange Act, is referred to herein as a “Company Huya Material Contract”.
(b) Prior to the date . A true and complete copy of this Agreement, the Company has provided complete and accurate copies of all Company each Huya Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) Contract in effect as of the date of this Agreementhereof has been made available to DouYu (including, where applicable, pursuant to agreed-upon procedures to protect competitively sensitive information) or publicly filed with the SEC.
(cb) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Each Huya Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on constitutes the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and legally binding obligation of the Company andHuya or its applicable Subsidiary, to the knowledge of the Company, enforceable in accordance with its terms and is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcyBankruptcy and Equity Exception. There is no material breach or default under any Huya Material Contract either by Huya or, insolvencyto Huya’s knowledge, reorganizationby any other party thereto, moratorium and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by Huya or, to Huya’s knowledge, any other similar Laws, now party. No party to any such Huya Material Contract has given notice to Huya of or hereafter in effect, relating made a claim against Huya with respect to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtmaterial breach or default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (HUYA Inc.), Merger Agreement (DouYu International Holdings LTD)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) disclosed in Section 4.18 of the Company PDN Disclosure SchedulesSchedule, sets forth a complete and accurate list as except for this Agreement, neither PDN nor any of the date of this Agreement ofits Subsidiaries is bound by any contract, arrangement, commitment or understanding:
(i) that constitutes a partnership, joint venture, technology sharing or similar agreement between PDN or any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Actof its Subsidiaries and any other person;
(ii) with respect to the service of any contract directors, officers, employees, or independent contractors or consultants that involves annual payments are natural persons, involving the payment of $100,000 or consideration from the Company more in any 12 month period, other than those that are terminable by PDN or any of its subsidiaries of Subsidiaries on no more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) 30 days’ notice without penalty;penalty;
(iii) any contract that contains any covenant restricting limits the ability of the Company PDN or any of its subsidiaries Subsidiaries to compete or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete enter into in any material line of business, (y) compete with any person or (z) operate in any geographic areaarea or with any person, in each case, which limitation or requirement would reasonably be expected to be material to PDN and its Subsidiaries taken as a whole;
(iv) with or to a labor union, works council or guild (including any contract granting collective bargaining agreement or similar agreement);
(v) relating to the use or right to use Intellectual Property, including any license or royalty agreements, other than an agreement entered into in the ordinary course of business and that is not material to PDN;
(vi) that provides for indemnification by PDN to any person, other than an agreement entered into in the ordinary course of business and that is not material to PDN;
(vii) between PDN or any of its Subsidiaries and any current or former director or officer of PDN or any of its Subsidiaries, or any affiliate of any such person (other than the Company an PDN Benefit Plan);
(viii) with respect to (A) Indebtedness, (B) any capital lease obligations to any person other than PDN or any of its subsidiariesSubsidiaries, (C) any obligations to any person other than PDN or any of its Subsidiaries in respect of letters of credit and bankers’ acceptances, (D) any indebtedness to any person other than PDN or any of its Subsidiaries under interest rate swap, hedging or similar agreements, (E) any obligations to pay to any person other than PDN or any of its Subsidiaries the deferred purchase price of property or services, (F) indebtedness secured by any Lien on any property owned by PDN or any of its Subsidiaries even though the obligor has not assumed or otherwise become liable for the payment thereof, or (G) any guaranty of any such obligations described in clauses (A) through (F) of any person other than PDN or any of its Subsidiaries, in each case, having an outstanding amount in excess of $100,000 individually or $250,000 in the aggregate;
(ix) that is material to PDN or that contains any so called “most favored nation” pricing provisionsprovision or similar provisions requiring PDN to offer to a person any terms or conditions that are at least as favorable as those offered to one or more other persons;
(vx) pursuant to which any contract that provides for “exclusivity,” agent, sales representative, distributor or other third party markets or sells any PDN Product;
(xi) pursuant to which PDN or any Subsidiary is a party granting rights of first refusal, rights of first negotiation offer or similar rights to acquire any business or assets of the PDN or any similar requirement in favor of any person (other than the Company or any of its subsidiaries)Subsidiary;
(vixii) any contract relating to any joint venture, partnership, strategic alliance, the purchase or other similar agreements to which sale of assets outside the Company or any ordinary course of its subsidiaries is a partybusiness of PDN;
(viixiii) relating to the issuance of any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture securities of PDN or other contract any Subsidiary;
(collectively, “debt obligations”xiv) pursuant to which any indebtedness material asset of the Company PDN or any of its subsidiaries Subsidiaries is leased;
(xv) relates to the purchase of (A) any equipment entered into since December 31, 2013 and (B) any materials, supplies, or inventory since December 31, 2013, other than any agreement which, together with any other related agreement, involves the expenditure by the PDN of less than $100,000;
(xvi) that represents a purchase order with any supplier for the purchase of inventory items in an amount in excess of $1,000,000 is outstanding or may be incurred and all guarantees 100,000 of or by the Company materials;
(xvii) pursuant to which PDN or any Subsidiary is a party and having a remaining term of its subsidiaries of debt obligations of any other person, including more than one (1) year after the respective aggregate principal amounts outstanding date hereof or involving a remaining amount payable thereunder (either to or from PDN) as of the date hereof, of this Agreementat least $100,000;
(viiixviii) that involves the payment of $250,000 or more in any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);12-month period after the date hereof; or
(ixxix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair impede the consummation consummation, or otherwise reduce the contemplated benefits, of any of the transactions contemplated herein, including the Merger;
(x) any contract requiring by this Agreement. PDN has previously made available to PDN or otherwise relating to any future capital expenditures by the Company or any its representatives complete and accurate copies of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee each Contract of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract type described in any of clauses (i) through (xii) of this Section 3.18(a4.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is collectively referred to herein as a “Company PDN Material ContractContracts”).
(b) Prior All of the PDN Material Contracts were entered into at arms’ length in the ordinary course of business and are valid and in full force and effect, except to the date extent they have previously expired in accordance with their terms. Neither PDN nor any of this Agreementits Subsidiaries has given or received a notice of cancellation or termination under any PDN Material Contract, or has, or is alleged to have, and to the Company has provided complete and accurate copies knowledge of all Company Material Contracts (including all amendmentsPDN, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as none of the date other parties thereto have, violated any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of this Agreementtime or both would constitute a default under the provisions of, any PDN Material Contract.
(c) Neither the Company PDN nor any subsidiary Subsidiary of the Company PDN is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company PDN Material Contract, nor has the Company or any of its subsidiaries received any notice of except for any such material defaultbreach or default that has not had and would not reasonably be expected to have, event individually or conditionin the aggregate, a PDN Material Adverse Effect. To the knowledge of the CompanyPDN, no other party to any Company PDN Material Contract is in material breach of or material default under the terms or conditions of any Company PDN Material ContractContract except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a PDN Material Adverse Effect. Each Company PDN Material Contract is a valid and binding obligation of PDN or the Company Subsidiary of PDN which is party thereto and, to the knowledge of the CompanyPDN, of each other party thereto, and is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(d) Neither PDN nor any Subsidiary of PDN is subject to any continuing obligations or restrictions under the Alliance Agreement between Monster Worldwide Inc. and PDN or the Diversity Recruitment Partnership Agreement, dated as of November 6, 2012, between PDN and LinkedIn Corporation (including under any amendment to either such agreement).
Appears in 2 contracts
Sources: Merger Agreement (Ladurini Daniel), Merger Agreement (Professional Diversity Network, Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 4.20(a) of the Company Disclosure SchedulesSchedule contains an accurate and complete list of each contract described below in this Section 4.20(a) under which the Company or any of its Subsidiaries has any current or future rights, sets forth a complete and accurate list responsibilities, obligations or liabilities (in each case, whether contingent or otherwise), in each case as of the date of this Agreement of:hereof (other than the Company Plans) (collectively, the “Material Contracts”):
(i) any partnership, joint venture, strategic alliance, collaboration, co-promotion or research and development project contract that is required material to be filed the Company and its Subsidiaries, taken as an exhibit to a report or filing under the Securities Act or the Exchange Actwhole;
(ii) any contract that involves annual payments or consideration from relating to outstanding indebtedness of the Company or any of its subsidiaries Subsidiaries for borrowed money or any financial guaranty thereof in an amount in excess of more $1,000,000, other than $1,000,000 during any twelve (12A) month period and is not terminable by contracts among the Company or and its subsidiary on 90 wholly owned Subsidiaries and (or fewerB) days’ notice without penaltyfinancial guarantees entered into in the ordinary course of business;
(iii) any contract that contains any covenant restricting (excluding licenses for commercial off-the-shelf computer software and non-exclusive licenses granted in the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line ordinary course of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries Subsidiaries is a partyparty pursuant to which the Company or any of its Subsidiaries (A) is granted any license or right to use, or covenant not to sue with respect to, any Intellectual Property of a Third Party or (B) has granted to a Third Party any license or right to use, or covenant not to sue with respect to, any Intellectual Property, and, in the case of both (A) and (B), which contract is material to the Company and its Subsidiaries, taken as a whole;
(iv) any agreement for the purchase, sale or lease of supplies, goods or products or for the furnishing or receipt of services, in each case, which provides for payments to or by the Company and its Subsidiaries that exceed $2,000,000 annually or $7,500,000 in the aggregate;
(v) any shareholders, investors rights or registration rights agreement;
(vi) any other agreement which provides for payments to or by the Company and its Subsidiaries that exceed $5,000,000 individually or $15,000,000 in the aggregate;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Labor Agreement;
(viii) any contract that is a settlement, conciliation or similar agreement with any Governmental Authority or with respect to a labor union, guild Person or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as pursuant to which the Company or any of its subsidiaries is a party Subsidiaries has any material outstanding obligation;
(ix) any contract (A) prohibiting, or by which purporting to limit or restrict the Company’s, any of them is bound. Each such contract described the Company’s Affiliates’ or any of its Subsidiaries’ ability to compete or to conduct its businesses in any geographical area or the type or line of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after business in which the date of this Agreement that would have been described in Company or any of clauses its Subsidiaries is engaged, (iB) through (xii) of this Section 3.18(a) if such contract existed on providing “most favored nation” or similar provisions where the date of this Agreement) is referred pricing, discounts or benefits to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes any customer or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part business relation of the Company or any of its subsidiaries orSubsidiaries changes based on the pricing, discounts or benefits offered to the knowledge other customers or business relations, (C) granting a right of the Company, first refusal or right of first offer or similar right for any other party thereto under any such Company Material Contract, nor has line of business or assets of the Company or any of its subsidiaries received Subsidiaries, (D) establishing an exclusive sale or purchase or similar obligation with respect to any notice obligation or geographical area or (E) imposing any minimum requirements or obligations of the Company or any of its Subsidiaries for any minimum purchase, expenditure, investment, sale, payment, production, supply, output, distribution or similar minimum requirements obligations or any take-or-pay provision in favor of a third party;
(x) any contract related to any completed, pending or future (A) disposition, divestiture or acquisition (whether by merger, sale of stock, sale of assets or otherwise) of any business, equity interests or material portion of assets or properties by the Company or any of its Subsidiaries or (B) consolidation, recapitalization, reorganization or other business combination with respect to the Company or any of its Subsidiaries, in each case, under which the Company or any of its Subsidiaries has outstanding payment or indemnification obligations; and
(xi) any other contract, arrangement, commitment or understanding that is a “material contract” (as such material default, event or condition. To the knowledge term is defined in Item 601(b)(10) of Regulation S-K of the CompanySEC).
(b) Except for breaches, no violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date hereof (i) each contract set forth in Section 4.20(a) of the Company Disclosure Schedule is valid and in full force and effect and (ii) neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Companysuch contract, is in full force and effect, enforceable in accordance with its terms in all material respects, 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 violation 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 broughtprovision thereof.
Appears in 2 contracts
Sources: Merger Agreement (Chase Corp), Merger Agreement (Chase Corp)
Material Contracts. (a) Except for contracts Schedule 3.11, Part (including a) lists all amendments agreements, contracts, arrangements and modifications theretocommitments (collectively, “Material Contracts”) filed as exhibits to which the Company SEC Documents, Schedule 3.18(a) of is a party and which are currently in effect and constitute the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement offollowing:
(i) any all partnership, joint venture or limited liability company contract that is required to be filed as an exhibit to a report arrangements or filing under the Securities Act or the Exchange Actagreements;
(ii) any contract that involves annual payments all material license agreements or consideration from agreements in respect of similar rights granted or held, except for licenses with respect to (A) pre-packaged software applications, or (B) rights to display or use the Company marks or any names of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by third parties pursuant to agreements with the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyCompany’s suppliers;
(iii) any contract all contracts or other documents that contains any covenant restricting substantially limit the ability freedom of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or to compete in any material line of business, (y) compete business or with any person Person or (z) operate in any geographic area;
(iv) any contract granting to any person (all agreements or other than documents of the Company in respect of borrowed money, including financial instruments of indenture or any security instruments (typically interest-bearing) such as notes, mortgages, loans and lines of its subsidiaries) “most favored nation” pricing provisionscredit;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a “change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger,” in connection with this Agreement;
(xvi) any contract requiring with any officer, director, or otherwise relating to any future capital expenditures by shareholder of the Company (each, a “Related Party”) or any contract with any family member or Affiliate of its subsidiaries in excess of $1,000,000 in the aggregatea Related Party;
(xivii) any contract providing for indemnification by the Company to or from any its subsidiaries of Person with respect to liabilities relating to any officer, director current or employee former business of the Company or any of its subsidiariesCompany; and
(xiiviii) any contract relating to any acquisition (by mergerall contracts, consolidation, acquisition of all agreements or substantially all other documents of the Company in respect of property or assets (whether real or otherwisepersonal, tangible or intangible) from any person or divestiture or disposition by in which the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving holds a leasehold interest with annual payments in excess of Twenty Five Thousand United States Dollars ($1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”25,000).
(b) Prior to Each Material Contract set forth on Schedule 3.11, Part (a) is a valid and binding agreement of the date of this AgreementCompany, enforceable in accordance with its terms against the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orand, to the knowledge Knowledge of the Company, the other contracting party (subject to the Bankruptcy and Equity Exception), and is in full force and effect, except where the failure of any Material Contract to be valid, binding, enforceable and in full force and effect, individually or in the aggregate, would not reasonably be expected to be material to the Company. Neither the Company, nor to the Knowledge of the Company, any other party thereto under any such Company Material Contractthereto, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each , and the Company has made available to the Parent a copy of each Material Contract.
(c) Except as set forth on Schedule 3.11, Part (b), no consent, approval, waiver or other action by any Person under any Material Contract listed on Schedule 3.11, Part (a) is required or necessary for, or as a result of, the execution, delivery and performance by the Company of this Agreement or any other Transaction Document to which the Company is a party or the consummation by the Company of the transactions contemplated hereby or thereby.
(d) The License & Supply Agreement between the Company and Daewoong, dated as of September 30, 2013 (the “Daewoong Agreement”) is a valid and binding obligation of the Company and, to the knowledge agreement of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that against the Company and Daewoong (i) such enforcement may be subject to applicable bankruptcythe Bankruptcy and Equity Exception), insolvencyand is in full force and effect. Neither the Company nor Daewoong is in default under the terms of the Daewoong Agreement. Except as listed on Schedule 3.11(d), reorganizationno consent, moratorium approval, waiver or other similar Lawsaction by any Person under the Daewoong Agreement is required or necessary for, now or hereafter in effectas a result of, relating the execution, delivery and performance by the Company of this Agreement or any other Transaction Document 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 which the discretion Company is a party or the consummation by the Company of the court before which any proceeding therefor may be broughttransactions contemplated hereby or thereby.
Appears in 2 contracts
Sources: Contribution Agreement (Evolus, Inc.), Contribution Agreement (Evolus, Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) Section 3.18 of the Company Disclosure Schedules, sets forth a complete and accurate list as Schedule lists each of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report following oral or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of businesswritten contracts, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusalagreements, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venturelicenses, partnershipnotes, strategic alliancebonds, mortgages, indentures, commitments or other similar agreements instruments or obligations (and all amendments, modifications and supplements thereto and all side letters to which the Company or any of its subsidiaries Subsidiaries is a party;
(viiparty affecting the obligations of any party thereunder) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligationsContracts”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries Subsidiaries is a party or by which any of them is bound. Each their respective properties or assets are bound (each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (Contract and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as agreement, being a “Company Material Contract”.) (notwithstanding anything below, “Material Contract” shall not include any Contract that (1) is terminable by the Company or any of its Subsidiaries upon 30 days’ notice without a penalty, premium or other cost, (2) will be fully performed and satisfied as of or prior to Closing or (3) is a Company Lease, a Leasehold Interest or an Employee Benefit Plan):
(a) all Contracts that call for aggregate payments to or by, or other considerations to or from, the Company or any of its Subsidiaries under such Contract of more than $1,750,000 over the remaining term of such Contract;
(b) Prior all Contracts that call for annual aggregate payments to the date of this Agreementor by, or other consideration to or from, the Company has provided complete and accurate copies or any of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing its Subsidiaries under such Contract of more than $750,000 over the terms thereof) in effect as remaining term of the date of this Agreement.such Contract;
(c) Neither any Contract that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or any of its Subsidiaries, or any existing or future affiliate of any of them or that purports to restrict the right of the Company or any Subsidiaries or any existing or future affiliate of any of them to conduct any line of business or to compete with any Person or operate in any geographic area or location;
(d) any partnership, limited liability company agreement, joint venture or other similar agreement entered into with any third party;
(e) any Contracts for the pending purchase or sale, option to purchase or sell, right of first refusal, right of first offer or any other contractual right to purchase, sell, dispose of, or master lease, by merger, purchase or sale of assets or stock or otherwise, any real property;
(f) any Contract pursuant to which the Company or any of its Subsidiaries agrees to indemnify or hold harmless any director or executive officer of the Company or any of its Subsidiaries (other than the organizational documents for the Company or any of its Subsidiaries);
(g) (i) any loan agreement, letter of credit, indenture, note, bond, debenture, mortgage or any other document, agreement or instrument evidencing a capitalized leased obligation or other indebtedness, or any guarantee thereof, of, for the benefit of, or payable to the Company or any of its Subsidiaries, in each case in excess of $1,750,000, or (ii) any Contract to provide any funds to or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of the Company or other Person;
(h) any Contract concerning an interest rate cap, interest rate collar, interest rate swap, currency hedging transaction or any other similar agreement to which the Company or any of its Subsidiaries is a party;
(i) any Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability in respect of any purchase price adjustment, earn-out or contingent purchase price or other indemnity that, in each case, could reasonably be expected to result in future payments of more than $1,750,000; or any Contract relating to the settlement or proposed settlement of any action, which involves the issuance of equity securities or the payment of an amount in excess of $750,000;
(j) any “standstill” or similar agreement, voting agreement or registration rights agreement;
(k) any Contract with any Governmental Entity;
(l) any Contract (other than among consolidated Subsidiaries of the Company) under which indebtedness is outstanding or may be incurred or pursuant to which any property or asset is mortgaged, pledged or otherwise subject to encumbrances, other than a Permitted Encumbrance, or any Contract restricting the incurrence of indebtedness or the incurrence of Encumbrances or restricting the payment of dividends or the transfer of any properties owned by the Company or any of its Subsidiaries; and
(m) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act). Except as would not reasonably be expected to result in a Company Material Adverse Effect, (i) neither the Company nor any subsidiary of its Subsidiaries is and, to the Knowledge of the Company, no other party is in breach or violation of, or default under, any Material Contract, (ii) none of the Company is in material breach or any of or material its Subsidiaries has received any claim of default under the terms or conditions cancellation of any Company Material Contract, and (iii) no event has occurred which would result in a breach or violation of, or a default under, any Material Contract and no event (in each case, with or condition has occurred that constitutes, or, after without notice or lapse of time or both). Each Material Contract is valid, would constitute, a material default on the part of binding and enforceable in accordance with its terms and is in full force and effect with respect to the Company or any of its subsidiaries orSubsidiaries and, to the knowledge Knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, with respect to the knowledge other parties thereto. The Company has made available to Parent true and complete copies of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that Material Contracts (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium including any amendments or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtmodifications thereof).
Appears in 2 contracts
Sources: Merger Agreement (Trustreet Properties Inc), Merger Agreement (Trustreet Properties Inc)
Material Contracts. (a) Except for contracts Subsections (including all amendments and modifications theretoi) filed as exhibits to the Company SEC Documents, Schedule through (xvi) of Section 3.18(a) of the Company Disclosure Schedules, sets Schedule set forth a an accurate and complete and accurate list as of all of the date following types of Contracts (x) to which any Group Company is a party, excluding in each case, Contracts under which such Group Company has no outstanding rights or obligations and (y) have not been filed with or furnished to the SEC as an exhibit to the Company’s filings with the SEC (such Contracts as are required to be set forth in Section 3.18(a) of the Company Disclosure Schedule being the “Material Contracts”), and, other than this Agreement ofAgreement, none of the Company or any of its Subsidiaries is a party to or bound by any Material Contracts not listed in Section 3.18(a) of the Company Disclosure Schedule:
(i) any contract Contract that is would be required to be filed as an exhibit by the Company pursuant to a report or filing Item 4 of the Instructions to Exhibits of Form 20-F under the Securities Act or the Exchange Act;
(ii) any contract Contract relating to (A) the formation, creation, operation, management or control of a partnership, joint venture, limited liability company or similar arrangement with the Group Company making investment in the amount of more than US$50,000,000, (B) strategic cooperation or partnership arrangements, or (C) other similar agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by any Group Company that involves annual payments is material to the business of the Company;
(iii) any Contract involving a loan (other than accounts receivable from trade debtors in the ordinary course of business) or consideration from advance to (other than travel and entertainment allowances to the employees of the Company and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person other than a Group Company or any Contract relating to the making of any such loan, advance or investment that is material to the financial status of the Company;
(iv) any Contract involving Indebtedness of the Company or any of its subsidiaries Subsidiaries in excess of US$50,000,000;
(v) any Contract granting or evidencing a Lien on any material properties or assets of the Company or any of its Subsidiaries, other than a Permitted Encumbrances;
(vi) any Contract for the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of properties or assets of the Company or any of its Subsidiaries that have a fair market value or purchase price of more than $1,000,000 during US$50,000,000 (by merger, purchase or sale of assets or stock or otherwise) or pursuant to which the Company or any twelve of its Subsidiaries have continuing, indemnification, guarantee, “earn-out” or other contingent payment obligations;
(12vii) month period and is not terminable any Contracts involving any resolution or settlement of any actual or threatened material litigation, arbitration, claim or other dispute;
(viii) any Contract for the employment of any officer, individual employee or other person by the Company or any of its subsidiary Subsidiaries on 90 (a full-time or fewer) days’ notice without penaltyconsulting basis or any severance agreements calling for payments in excess of US$10,000,000 annually;
(iiiix) any contract non-competition Contract or other Contract that contains purports to limit, curtail or restrict in any covenant restricting material respect the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or Subsidiaries to compete in any material line of business, (y) compete with any person or (z) operate in any geographic area, industry or line of business that is material to the business of the Company;
(ivx) any contract granting to any person (other than the Company Contract that contains a put, call or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements right pursuant to which the Company or any of its subsidiaries is 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$50,000,000;
(viixi) any loan agreementContract (other than Contracts granting Company Options or Company RSUs) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Transactions, credit agreementincluding the Merger, note, debenture, bond, mortgage, guarantee, indenture where (A) such Contract requires any payment in excess of US$50,000,000 to be made by the Company or other contract any of its Subsidiaries or (collectively, “debt obligations”B) pursuant the value of the outstanding receivables due to which the Company and its Subsidiaries under such Contract is in excess of US$50,000,000;
(xii) any indebtedness 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 in excess Subsidiaries, (B) pledging of $1,000,000 is outstanding share capital of the Company or may be incurred and all guarantees any of its Subsidiaries or (C) issuance of guarantee by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this AgreementSubsidiaries;
(viiixiii) any contract with or with respect material Contract providing for (A) a license, covenant not to a labor union, guild s▇▇ or other employee representative right granted by any Third Party under any Intellectual Property to the Company or any of its Subsidiaries, (including any collective bargaining agreement B) a license, covenant not to s▇▇ or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures other right granted by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
Subsidiaries to any Third Party under any Intellectual Property, other than agreements for off-the-shelf Software, (xiC) any contract providing for indemnification by the Company or any its subsidiaries an indemnity of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to Subsidiaries against any person charge of material propertiesinfringement, assetsmisappropriation, capital stock unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which amount payable by the Company or any of its subsidiaries is a party Subsidiaries to any person by reason of the ownership, use, sale or by which any disposition of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.Intellectual Property;
(bxiv) Prior to any material Contract outside the date ordinary course of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary business of the Company is in material breach of or material default under the not on arm’s length terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of between the Company or any of its subsidiaries Subsidiaries, on one hand, and any Affiliate or other entity in which any Group Company has a direct or indirect equity interest, or director, or executive officer, or any person beneficially owning ten percent (10%) or more of the outstanding Equity Securities of any Group Company or any of their respective Affiliates (other than the Group Companies), or immediate family members or any of the respective Affiliates of such family members, on the other hand;
(xv) any Contract which have not been covered by subsections (i) through (xiv) and involves consideration of more than US$50,000,000, in the aggregate, over the remaining term of such Contract; or
(xvi) any other Contract which could reasonably be expected to have a Company Material Adverse Effect.
(i) Each Material Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against the such Group Company in accordance with its terms, subject to the Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception, (iii) no Group Company and, to the knowledge of the Company, no counterparty, is or is alleged to be in full force and effectmaterial breach or violation of, enforceable in accordance with its terms in all material respectsor default under, except any Material Contract; (iv) to the knowledge of the Company, no person intends to terminate or cancel any Material Contract; (v) no Group Company has received any written claim of default under any such Material Contract and, to the Company’s knowledge, no fact or event exists that (i) such enforcement may be subject would give rise to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally any claim of default under any Material Contract; and (iivi) equitable remedies neither the execution of specific performance and injunctive and other forms this Agreement nor the consummation of equitable relief may be subject any Transaction shall constitute a material default under, give rise to equitable defenses and to the discretion cancellation rights under, or otherwise adversely affect any of the court before which material rights of any proceeding therefor may be broughtGroup Company under any Material Contract. The Company has furnished or made available to Parent true and complete copies of all Material Contracts, including any amendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Yao Jinbo), Merger Agreement (58.com Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date For purposes of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under Agreement, "Material Contract" shall mean the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements following to which the Company or any of its subsidiaries Subsidiaries is a partyparty or any of the respective assets are bound:
(i) any "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the SEC;
(viiii) any loan agreementLease;
(iii) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, credit agreement(y) member of the Company Board, noteor (z) Company Employee;
(iv) any Contract providing for indemnification or any guaranty by the Company or any Subsidiary thereof, debentureother than (x) any guaranty by the Company or a Subsidiary thereof of any of the obligations of (A) the Company or another wholly-owned Subsidiary thereof or (B) any Subsidiary (other than a wholly-owned Subsidiary) of the Company that was entered into in the ordinary course of business pursuant to or in connection with a customer Contract, bond, mortgage(y) any Contract providing for any guaranty by a Person other than the Company with respect to a liability or obligation of the Company, guarantee, indenture or (z) any Contract providing for indemnification of customers or other contract (collectively, “debt obligations”) Persons pursuant to which Contracts entered into in the ordinary course of business;
(v) any indebtedness Contract that purports to limit the right of the Company or any of its subsidiaries Subsidiaries (or, at any time after the consummation of the Merger, Parent or any of its Subsidiaries) (x) to engage in excess any line of $1,000,000 is outstanding business, or may be incurred and all guarantees of (y) to compete with any Person or operate in any geographical location;
(vi) any Contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of Subsidiaries after the date of this AgreementAgreement of assets other than consumable inventory (including, without limitation, fibers);
(vii) any Contract relating to the repair and maintenance of Company Medical Equipment involving payments by the Company in excess of $50,000 in any year;
(viii) any contract Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis with any third party or upon consummation of the Merger will obligate Parent, the Surviving Corporation or any of their respective Subsidiaries to conduct business on an exclusive or preferential basis with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement)third party;
(ix) any contract partnership, joint venture or similar Contract that requires is material to the Company and its Subsidiaries taken as a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Mergerwhole;
(x) any contract requiring mortgages, indentures, guarantees, loans or otherwise credit agreements, security agreements or other Contracts, in each case relating to any future capital expenditures by the Company indebtedness for borrowed money, whether as borrower or any of its subsidiaries in excess of $1,000,000 in the aggregatelender, other than accounts receivables and payables;
(xi) any contract providing for indemnification by the Company employee collective bargaining agreement or other Contract with any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; andlabor union;
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to Contract under which the Company or any of its subsidiaries Subsidiaries is a party obligated to make payment or by incur costs in excess of $50,000 in any year and which any of them is bound. Each such contract not otherwise described in any of clauses (ii)-(xi) through above;
(xiixiii) any Contract which is not otherwise described in clauses (i)-(xii) above that is material to the Company and its Subsidiaries, taken as a whole, and listed on Section 4.19(b) of this Section 3.18(athe Company Disclosure Letter; or
(xiv) (and each contract entered into after the date of this any Company IP Agreement that would have been described in any is material to the conduct of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”Company's business.
(b) Prior to the date Section 4.19(b) of this Agreement, the Company has provided Disclosure Letter sets forth a true and complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect list as of the date hereof of this Agreementall Material Contracts. The Company has made available to Parent correct and complete copies of all Material Contracts, including any amendments thereto.
(ci) Neither All the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract Contracts are valid and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default binding on the part of the Company or any of its subsidiaries orapplicable Subsidiary, to the knowledge of the Companyenforceable against it in accordance with its terms, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, 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 neither the Company nor any of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and its Subsidiaries nor, to the discretion Knowledge of the court before which Company, any proceeding therefor may be broughtthird party has materially violated any provision of, or materially failed to perform any obligation required under the provisions of, any Material Contract, and (iii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any third party is in breach, or has received written notice of any material breach, of any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Emergent Group Inc/Ny), Merger Agreement (Universal Hospital Services Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aContracts listed in Section 4.12(a) of the Company Disclosure SchedulesLetter or included as an exhibit to the Company's Form 10-K for the fiscal year ended December 31, sets forth a complete and accurate list 2014, as of the date of this Agreement ofAgreement, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract:
(i) any contract that is required to be filed as an exhibit to a report the Company's Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or filing under (10) of Regulation S-K promulgated by the Securities Act or the Exchange ActSEC;
(ii) any contract that involves annual payments pursuant to which or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements respect to which the Company or any of its subsidiaries is a party;
(vii) Subsidiaries and any loan agreementdirector, credit agreementofficer, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness Affiliate of the Company or any of its subsidiaries Subsidiaries (excluding in each case Parent) are parties or beneficiaries;
(iii) that obligates the Company or any of its Subsidiaries to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $1,000,000 and is outstanding not cancelable within 90 days without material penalty to the Company or may be incurred and all guarantees any of its Subsidiaries;
(iv) that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Company or any of its Subsidiaries, or that otherwise restricts the lines of business conducted by the Company or any of its subsidiaries of debt obligations of any other person, including Subsidiaries or the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by geographic area in which the Company or any of its subsidiaries in excess of $1,000,000 in the aggregateSubsidiaries may conduct business;
(xiv) that (A) is an agreement to which any contract providing for indemnification by Governmental Authority is a party or under which any Governmental Authority has any rights or obligations or (B) is intended to directly or indirectly benefit any Governmental Authority (including any subcontract or other Contract between the Company or any of its subsidiaries Subsidiaries and any contractor or subcontractor to any Governmental Authority);
(vi) which obligates the Company or any of its Subsidiaries to indemnify any officerpast or present directors, director officers, trustees, employees or employee agents of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as Subsidiaries pursuant to which the Company or any of its subsidiaries Subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.indemnitor;
(bvii) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part which constitutes Indebtedness of the Company or any of its subsidiaries or, to the knowledge Subsidiaries with a principal amount outstanding as of the Company, date hereof greater than $1,000,000;
(viii) that is an employment agreement with any other party thereto under any such Company Material Contract, nor has executive officer of the Company or any of its subsidiaries received Subsidiaries;
(ix) which requires the Company or any notice of its Subsidiaries to dispose of or acquire assets or properties (including any such Company Vessel) with a fair market value in excess of $1,000,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;
(x) that constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to a hedging transaction;
(xi) that sets forth the operational terms of a material defaultjoint venture, event partnership, limited liability company or condition. To strategic alliance of the knowledge Company or any of its Subsidiaries;
(xii) that constitutes a loan to any Person (other than a wholly owned Subsidiary of the Company, no other party ) by the Company or any of its Subsidiaries in an amount in excess of $1,000,000;
(xiii) relating to any material ship-sales, memoranda of agreement or other vessel acquisition Contract for Newbuildings and secondhand vessels currently contracted for by the Company or other material Contracts with respect to Newbuildings and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, material supervision agreement, material plan verification services agreements, and future charters;
(xiv) pursuant to which a Company Vessel is leased or chartered by the Company to a Third Party;
(xv) that is a management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Company Vessel involving annual payments in excess of $50,000, other than any such agreement or financial lease that is terminable by the Company or its Subsidiaries without fee or penalty upon 90 days' or less prior notice;
(xvi) that is a confidentiality or standstill agreement relating to any actual or potential Acquisition Proposal (other than the Confidentiality Agreement); or
(xvii) that, if breached or terminated, could reasonably be expected to have a Company Material Adverse Effect. Each Contract described in clauses (i) through (xvii) above to which the Company or any of its Subsidiaries is a party or by which it is bound is referred to herein as a "Company Material Contract."
(b) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract is in material breach legal, valid, binding and enforceable on the Company and each of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract its Subsidiaries that is a valid and binding obligation of the Company party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement as may be subject to applicable limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to Laws affecting creditors’ ' rights generally and by general principles of equity (ii) equitable remedies regardless of specific performance whether enforceability is considered in a proceeding in equity or at Law). Except as, individually or in the aggregate, have not had and injunctive would not reasonably be expected to have a Company Material Adverse Effect, the Company and other forms each of equitable relief may its Subsidiaries has performed all obligations required to be subject to equitable defenses and performed by it prior to the discretion date hereof under each Company Material Contract and, to the knowledge of the court before which Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof. Neither the Company nor any proceeding therefor may of its Subsidiaries has received any claim, notice or other communication (whether oral or written) of any violation or default under any Company Material Contract, except for violations or defaults that would not, individually or in the aggregate, reasonably be broughtexpected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Genco Shipping & Trading LTD), Merger Agreement (Baltic Trading LTD)
Material Contracts. (a) Except for contracts the Original Agreement (including all amendments and modifications thereto) as of the date of this Agreement and as of the Closing Date, this Agreement), the Company Benefit Plans, the Company Real Property Leases, the Company Subleases and agreements filed as exhibits to the Company SEC DocumentsDocuments (including those that are filed with the SEC at any time prior to the Original Agreement Date and incorporated by reference thereto), Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date Original Agreement Date, neither the Company nor any of this Agreement ofits Subsidiaries is a party to or bound by:
(i) any contract that “material contract” (as such term is required to be filed as an exhibit to a report or filing under defined in Item 601(b)(10) of Regulation S-K of the Securities Act or the Exchange ActSEC);
(ii) any contract that involves annual Contract with any Top Company Customer or Top Company Vendor pursuant to which material payments are to be made or consideration from received by the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company Subsidiaries or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability material obligations of the Company or any of its subsidiaries or affiliates (including Parent Subsidiaries will remain outstanding after the Merger Closing) to: (x) conduct or compete in any material line of businessOriginal Agreement Date, (y) compete other than with any person or (z) operate in any geographic arearespect to commercial product Warranties on customary terms;
(iviii) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to Contract under which the Company or any of its subsidiaries is Subsidiaries has continuing indemnification, earnout or similar obligations to or by any third person which are material to the Company and its Subsidiaries, taken as a partywhole, other than those entered into on customary terms in connection with the distribution, sale or license of the Company’s products in the Ordinary Course of Business and other than any such Contracts that may be cancelled without liability to the Company or its Subsidiaries upon notice of 90 days or less;
(viiiv) any loan agreementContract concerning the acquisition or divestiture of any entity or any business (or all or substantially all of the assets of any entity or any business), credit agreementor any investment in, noteor acquisition or divestiture of any security of, debentureany entity, bondby the Company or any of its Subsidiaries under which the Company or any of its Subsidiaries has any material continuing obligations;
(v) any Contract for capital expenditures involving payments of more than $4,000,000 individually or $8,000,000 in the aggregate, mortgage, guarantee, indenture by or other contract (collectively, “debt obligations”) pursuant to which any indebtedness on behalf of the Company or any of its subsidiaries Subsidiaries, for which reserves have not already been established in the financial statements of the Company and its Subsidiaries;
(vi) any Contract which is material to the operations of the Company and its Subsidiaries, taken as a whole, involving a joint venture or strategic alliance or partnership agreement or other sharing of profits or losses with any person;
(vii) any Contract relating to indebtedness for borrowed money in an amount in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement5,000,000 individually;
(viii) any contract Contract with any Top Company Customer or with respect to a labor unionTop Company Vendor containing any, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under material Contract containing any such Company Material Contractmaterial, nor has covenants, commitments, or other obligations by the Company or any of its subsidiaries received Subsidiaries (A) not to compete with any person in a line of business or activity, (B) not to engage in any line of business or activity in any geographic location in a line of business, activity or geographic location, (C) granting any exclusive rights to any third party, (D) including “take or pay,” “sole source” or “requirements” obligations, (E) granting any “most favored pricing” or similar terms to any third party, or (F) otherwise prohibiting or limiting the right of the Company or its Subsidiaries to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or subassemblies, in each case, other than any such Contracts (x) that may be cancelled without material liability to the Company or any of its Subsidiaries upon notice of 180 days or less, or (y) which are not material to the Company and its Subsidiaries, taken as a whole;
(ix) any such material defaultContract disclosed or required to be disclosed on Section 3.20(g) of the Company Disclosure Letter;
(x) any Order or settlement or conciliation agreement entered into since January 1, event 2018, other than (A) releases immaterial in nature and amount entered into with former employees or condition. To independent contractors of the knowledge Company in the Ordinary Course of Business or (B) settlement agreements which would not require the Company to pay consideration in excess of $2,000,000;
(xi) any Contract evidencing an outstanding loan, advance or investment by the Company or any of its Subsidiaries to or in, any person (other than the Company or any other Subsidiary of the Company) of more than $5,000,000 in the aggregate (excluding trade receivables and advances to employees for normally incurred business expenses, each arising in the Ordinary Course of Business);
(xii) each Material Government Contract (excluding any Government Contracts with universities or similar institutions on customary and reasonable terms); and
(xiii) any Contract not described above and pursuant to which the Company or any of its Subsidiaries has paid or received payments in excess of $5,000,000 in the most recent fiscal year, or is obligated to pay or entitled to receive payments in excess of $5,000,000 in the 12-month period following the Original Agreement Date, in each case, other than (A) Contracts solely between the Company and a wholly owned (direct or indirect) Subsidiary of the Company or solely between wholly owned (direct or indirect) Subsidiaries of the Company, no other (B) Contracts with customers, suppliers, vendors, or third-party to any Company Material Contract is service providers entered into in material breach the Ordinary Course of or material default under the Business on reasonable terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.C)
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Lumentum Holdings Inc.), Agreement and Plan of Merger (Coherent Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.17(a) of the Company Disclosure Schedules, Schedule sets forth a true and complete and accurate list list, as of the date hereof, of this Agreement each of the following Contracts (other than any Company Benefit Plans) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their assets or businesses are bound (and any material amendments, supplements and modifications thereto), and the Company has made available to Parent true and complete copies of:
(i) any contract each Contract that is 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 that has not been filed as an exhibit to a report or filing under the Securities Act or the Exchange ActCompany SEC Document;
(ii) Contracts with (A) any contract of the Material Vendors and (B) any of the Material Customers;
(iii) other than with respect to an entity that involves annual payments or consideration from is wholly owned by the Company or any of its subsidiaries Subsidiaries, Contracts concerning the establishment or operation of more than $1,000,000 during any twelve (12) month period and is not terminable by a partnership, joint venture or limited liability company in which the Company or any of its subsidiary on 90 Subsidiaries holds an equity interest (including with respect to each Minority Investment), or fewer) days’ notice without penaltythat is material to the Company and its Subsidiaries, taken as a whole;
(iiiiv) (A) (x) licenses or sublicenses (or other Contracts in which the Company or any of its Subsidiaries grants or is granted a similar right to use) of Intellectual Property from or to any third party (other than (1) licenses or sublicenses of generally commercially available off-the-shelf software programs with annual license fees or a total replacement cost of less than $250,000, (2) non-exclusive licenses or sublicenses to customers in the ordinary course of business consistent with past practice, or (3) non-exclusive licenses or sublicenses ancillary to commercial agreements entered into in the ordinary course of business consistent with past practice) or (y) a Contract that, since April 27, 2024, provided or provides for the assignment of Intellectual Property to or from any third party (except for inventor assignments), in the case of each of clauses (x) and (y), except for such assignments, licenses and sublicenses that are not material to the Company and the Company Subsidiaries, taken as a whole, or (B) a Contract that subjects Company Owned Intellectual Property to any material restriction;
(v) any contract Contract with an employee or independent contractor of the Company or any of its Subsidiaries that contains provides for annual base compensation in excess of $350,000;
(vi) any Labor Agreement;
(vii) Contracts containing (A) a covenant materially restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete Subsidiaries to engage in any material line of business, (y) business in any geographic area or to compete with any person Person, to market any product or to solicit customers; (zB) operate in any geographic area;
(iv) any contract a provision granting to any person (the other than the Company or any of its subsidiaries) party “most favored nation” status or equivalent preferential pricing provisionsterms; (C) a provision providing for an exclusive license, supply, distribution or other right in connection with any product or technology purchased or supplied by the Company; or (D) a right of first or last offer or refusal to any third party, except in the case of each of clauses (B) and (D) for such restrictions, requirements and provisions that are not material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(vviii) any contract that provides for “exclusivity,” rights of first refusalindentures, rights of first negotiation or any credit agreements, loan agreements and similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements instruments pursuant to which the Company or any of its subsidiaries is a partySubsidiaries has or will incur or assume any indebtedness or has or will guarantee or otherwise become liable for any indebtedness of any other Person for borrowed money in excess of $5,000,000 other than any indentures, credit agreements, loan agreements or similar instruments between or among any of the Company and any of its Subsidiaries;
(viiix) settlement, conciliation or similar Contracts, including any loan agreementsuch agreement with any Governmental Entity, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of that would require the Company or any of its subsidiaries in excess Subsidiaries to pay, after taking into account amounts paid or payable by insurance, consideration of more than $1,000,000 is outstanding individually or may be incurred and all guarantees $2,000,000 in the aggregate after the date hereof or that contains material continuing restrictions on the business or operations of or by other non-monetary obligations of the Company or its Subsidiaries;
(x) Contracts that obligate the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect Subsidiaries to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to make any future capital expenditures by the Company investment or any of its subsidiaries capital expenditure in excess of $1,000,000 (individually or in the aggregate) other than in respect of purchases of products from suppliers that are to be sold to customers in the ordinary course of business;
(xi) any contract providing Contracts (A) that provide for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries Subsidiaries of any business or material assets (whether by merger, sale of stock, sale of assets or otherwise) under which the Company or any of its Subsidiaries has any material continuing obligations (monetary or otherwise) or would reasonably be expected to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments have liabilities in excess of $1,000,000; in each case for such contracts as 1,000,000 after the date hereof or (B) pursuant to which the Company or any of its subsidiaries is a party Subsidiaries acquired or by which will acquire any of them is bound. Each such contract described material ownership interest in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes other Person or other documents modifying or supplementing the terms thereof) business enterprise other than any Subsidiary, in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default each case, under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of which the Company or any of its subsidiaries Subsidiaries has obligations remaining to be performed as of the date hereof; or
(xii) any shareholders, investors rights, registration rights, joint venture or similar agreements or arrangements.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) all Contracts set forth or required to be set forth in Section 3.17(a) of the Company Disclosure Schedule or filed or required to be filed as exhibits to the Company SEC Documents (except to the extent subsequently terminated or superseded) (the “Company Material Contracts”) are valid, binding and in full force and effect and are enforceable by the Company or the applicable Subsidiary in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) the Company, or the applicable Subsidiary, has performed all obligations required to be performed by it under the Company Material Contracts, and it is not (with or without notice or lapse of time, or both) in breach or default thereunder and, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge Knowledge of the Company, no other party to any Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder and (iii) since April 25, 2021, neither the Company nor any of its Subsidiaries has received written notice of any actual, alleged, possible or potential material breach of violation of, or material default under the terms failure to comply with, any term or conditions requirement of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Patterson Companies, Inc.), Merger Agreement (Patterson Companies, Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) Section 4.15 of the Company Disclosure Schedules, Schedule sets forth a complete and accurate list as all of the date of this Agreement of:
(i) any contract that is required following Contracts to be filed as an exhibit to a report or filing under which the Securities Act or Company, the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company Purchased Companies or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries their Subsidiaries is a party or by which any of them it is bound. Each such contract described bound under which there are continuing obligations (other than confidentiality restrictions) and other than the Company Plans and Contracts made after the date hereof as permitted by or in any of clauses compliance with Section 6.2 (collectively, the “Material Contracts”): (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in Contracts with any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes current officer or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge director of the Company, any other party thereto under any such Company Material Contract, nor has the Company Purchased Companies or any of its subsidiaries received their Subsidiaries; (ii) Contracts with any notice of labor union or association representing any such material default, event or condition. To the knowledge employee of the Company, no the Purchased Companies or any of their Subsidiaries; (iii) Contracts pursuant to which any party is required to purchase or sell a stated portion of its requirements or output from or to another party; (iv) Contracts for the sale of any of the assets of the Company, the Purchased Companies or any of their Subsidiaries other party than in the Ordinary Course of Business or for the grant to any Company Material Contract is in material breach of or material default under the terms or conditions person of any preferential rights to purchase any of its assets; (v) joint venture agreements; (vi) Contracts containing covenants of the Company, the Purchased Companies or any of their Subsidiaries not to compete in any line of business or with any person in any geographical area or covenants of any other person not to compete with the Company, the Purchased Companies or any of their Subsidiaries in any line of business or in any geographical area; (vii) Contracts relating to the acquisition by the Company, the Purchased Companies or any of their Subsidiaries of any operating business or the capital stock of any other person; (viii) Contracts relating to the borrowing of money; (ix) any 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 similar commitment with respect to the Liability or Indebtedness of any other Person; (xi) trust indenture, mortgage, promissory note, loan agreement or (xii) other Contracts, other than Real Property Leases, which involve the expenditure by the Company, the Purchased Companies or any of their Subsidiaries of more than $150,000 in the aggregate or $25,000 annually or require performance by any party more than one year from the date hereof or are otherwise material to the Company, the Purchased Companies and any of their Subsidiaries taken as a whole. The Company, the Purchased Companies and their Subsidiaries have provided or made available to the Purchaser true and complete copies of all of the written Material ContractContracts and written summaries of the material terms of all of the oral Material Contracts. Each Company All of the Material Contract is a Contracts and other agreements are in full force and effect and are the legal, valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effectthe Purchased Companies and/or any of their Subsidiaries, enforceable against them in accordance with its terms in all material respectstheir terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other and similar Laws, now or hereafter in effect, relating to laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity (ii) equitable remedies regardless of specific performance and injunctive and other forms whether enforcement is sought in a proceeding at law or in equity). None of equitable relief may be subject to equitable defenses and the Company, the Purchased Companies or any of their Subsidiaries is in default in any material respect under any Material Contract, nor, to the discretion Knowledge of the court before which Company, the Purchased Companies or any proceeding therefor may be broughtof their Subsidiaries, is any other party to any Material Contract in default thereunder in any material 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. (ai) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date For purposes of this Agreement ofAgreement, “F▇▇▇▇▇ Material Contract” shall mean:
(iA) Any employment, severance, consulting or other Contract with an employee or former employee, officer or director of F▇▇▇▇▇ or any contract that is required to be filed Subsidiary of F▇▇▇▇▇ (other than any unwritten Contract for the employment of any such employee or former employee implied at law) which will require the payment of amounts by F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇, as an exhibit to a report or filing under applicable, after the Securities Act or the Exchange Actdate hereof in excess of $250,000 per annum;
(iiB) Any collective bargaining Contract with any contract that involves annual labor union;
(C) Any Contract for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $2,500,000;
(D) Any Contract containing covenants of F▇▇▇▇▇ or consideration from any Subsidiary of F▇▇▇▇▇ (1) to indemnify or hold harmless another Person or group of Persons, unless such indemnification or hold harmless obligation to such Person, or group of Persons, as the Company case may be, would not reasonably be expected to exceed a maximum of $1,000,000 (except for product warranty obligations in Contracts for the sale of goods in the ordinary course of business) or (2) not to (or otherwise restrict or limit the ability of F▇▇▇▇▇ or any of its subsidiaries of more than $1,000,000 during any twelve (12Subsidiaries to) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person business or (z) operate in any geographic area;
(ivE) any contract granting Any Contract requiring aggregate future payments or expenditures in excess of $2,500,000 and relating to any person (other than the Company cleanup, abatement, remediation or any of its subsidiaries) “most favored nation” pricing provisionssimilar actions in connection with environmental liabilities;
(vF) any contract that provides for “exclusivity,” rights of first refusalAny license, rights of first negotiation royalty Contract or other Contract with respect to Intellectual Property which, pursuant to the terms thereof, requires payments by F▇▇▇▇▇ or any similar requirement in favor Subsidiary of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries F▇▇▇▇▇ in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreementper annum;
(viiiG) Any Contract pursuant to which F▇▇▇▇▇ or any contract Subsidiary of F▇▇▇▇▇ has entered into a partnership or joint venture with any other Person (other than F▇▇▇▇▇ or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreementSubsidiary of F▇▇▇▇▇);
(ixH) Any indenture, mortgage, loan, guarantee or credit Contract under which F▇▇▇▇▇ or any contract that requires a consent to Subsidiary of F▇▇▇▇▇ has outstanding indebtedness or any outstanding note, bond, indenture or other evidence of indebtedness for borrowed money or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing guaranteed indebtedness for indemnification money borrowed by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interestsothers, in each case, involving for or guaranteeing an amount in excess of $2,500,000;
(I) Any Contract under which F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ is (1) a lessee of real property, (2) a lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third Person, (3) a lessor of real property, or (4) a lessor of any tangible personal property owned by F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇, in each case which requires annual payments in excess of $1,000,000; ;
(J) Any Contract (other than purchase or sale orders in each case for such contracts as to the ordinary course of business that are terminable or cancelable without penalty on 90 days’ notice or less) under which the Company F▇▇▇▇▇ or any Subsidiary of its subsidiaries F▇▇▇▇▇ is a party purchaser or supplier of goods and services which, pursuant to the terms thereof, requires payments by F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ in excess of $1,000,000 per annum;
(K) Any material Contract (including guarantees) between F▇▇▇▇▇ or any wholly-owned Subsidiary of F▇▇▇▇▇ and another Subsidiary of F▇▇▇▇▇ that is not wholly-owned by F▇▇▇▇▇;
(L) Any Contract which requires payments by F▇▇▇▇▇ or any Subsidiary of them is bound. Each such contract F▇▇▇▇▇ in excess of $1,000,000 per annum containing “change of control” or similar provisions;
(M) Any Contract entered into on or after January 1, 2001 relating to the acquisition or disposition of any business or any assets (whether by merger, sale of stock or assets or otherwise), in an amount in excess of $5,000,000 (all of which Contracts have been made available to Apogent prior to the date hereof in the data room maintained by F▇▇▇▇▇’▇ counsel in connection with the transactions contemplated hereby);
(N) Any Contract (other than Contracts of the type described in subclauses (A) through (M) above) that involves aggregate payments by or to F▇▇▇▇▇ or any Subsidiary of clauses F▇▇▇▇▇ in excess of $1,000,000 per annum, other than purchase or sales orders or other Contracts entered into in the ordinary course of business consistent with past practice that are terminable or cancelable without penalty on 90 days’ notice or less; and
(O) Any Contract the termination or breach of which, or the failure to obtain consent in respect of, would reasonably be expected to have a Material Adverse Effect on F▇▇▇▇▇ and its Subsidiaries, taken as a whole.
(ii) Schedule. Section 3.2(q)(ii) of the F▇▇▇▇▇ Disclosure Schedule sets forth a list of all F▇▇▇▇▇ Material Contracts as of the date hereof. With respect to the Contracts described in (i) through Section 3.2(q)(i)(D), (xiiF), (I), (J), (L) of this Section 3.18(aand (N) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereofSection 3.2(q)(ii) in effect as of the date F▇▇▇▇▇ Disclosure Schedule sets forth only Contracts which require payments, or in the case of this Agreement.
clause (cD) Neither the Company nor any subsidiary involve obligations, in excess of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, 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 $2,500,000 and (ii) equitable remedies Section 3.2(q)(i)(N) of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion this Agreement, Section 3.2(q)(ii) of the court before which F▇▇▇▇▇ Disclosure Schedule sets forth only Contracts involving payments to F▇▇▇▇▇, or any proceeding therefor may be broughtSubsidiary of F▇▇▇▇▇, in excess of $10,000,000.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Apogent Technologies Inc), Agreement and Plan of Merger (Fisher Scientific International Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.19(a) of the Company Disclosure Schedules, Letter sets forth a true, correct and complete and accurate list list, as of the date hereof, of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person each Contract (other than Plans), which is in effect as of the Company date hereof (or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements pursuant to which the Company or any of its subsidiaries Subsidiaries have any continuing material obligations thereunder) and under which the Company or any of its Subsidiaries are a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound, that:
(i) is a party“material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, whether or not disclosed by the Company on a Current Report on Form 8-K;
(viiii) involves, by its terms, aggregate payments by the Company or any loan agreementof its Subsidiaries or aggregate payments payable to the Company or any of its Subsidiaries under such Contract (or any group of substantially related existing Contracts) of more than $1,000,000 in either of the fiscal years ended December 31, credit agreement2023 and December 31, note, debenture, bond, mortgage, guarantee, indenture or other contract 2024 (collectively, “debt obligations”including by means of royalty payments);
(iii) pursuant to which (A) contains covenants that limit in any indebtedness material respect the freedom of the Company or any of its subsidiaries Subsidiaries to compete or engage in excess any line of $1,000,000 is outstanding business or may be incurred and all guarantees to conduct business with any Person in any geographic area, (B) obligates the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party, or sell any product or service exclusively to a single party, or (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product or service of the Company or its Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area;
(iv) provides for or governs the formation, creation, operation, management or control of any material partnership or joint venture;
(v) provides for the use or license by the Company or any of its subsidiaries of debt obligations Subsidiaries of any Intellectual Property Rights owned by a third party, other person, including the respective aggregate principal amounts outstanding as of the date of this Agreementthan Incidental Contracts;
(viiivi) provides for the use or license by any contract with or with respect to a labor union, guild or other employee representative (including third party of any collective bargaining agreement or works council agreement)material Company Intellectual Property Rights;
(ixvii) any contract that requires a consent to involves the acquisition or otherwise contains a provision relating to a change disposition, directly or indirectly (by merger, sale of controlstock, sale of assets or that would or could reasonably be expected to preventotherwise), delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries Subsidiaries of any material assets (other than cash) or any material capital stock or other equity interest of another Person, other than the sale of inventory in the ordinary course of business, that has continuing indemnification, earn-out or milestone payments or other contingent consideration payment obligations by the Company or any of its Subsidiaries;
(viii) constitutes a material manufacturing, supply, distribution or marketing agreement (or group of substantially related existing Contracts) that provides for minimum purchase obligations by the Company or any of its Subsidiaries in any prospective twelve (12) month period;
(ix) contains any royalty, dividend, milestone payment or similar contingent payment arrangement based on the revenues or profits of the Company or any of the Company Subsidiaries;
(x) other than solely among the Company and wholly owned Subsidiaries of the Company, relates to Indebtedness having an outstanding principal amount in excess of $1,000,000 in the aggregate1,000,000;
(xi) involves the settlement of any contract providing for indemnification pending or currently threatened claim, action or proceeding;
(xii) is an agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with or imposed by any Governmental Authority;
(xiii) is a collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body (other than any statutorily mandated agreement in non-U.S. jurisdictions);
(xiv) is with a customer or supplier required to be listed in Section 3.25 of the Company Disclosure Letter or is with a sole source supplier of any goods or services to the Company or any of its subsidiaries Subsidiaries;
(xv) is an employment or consulting agreement with any current (A) executive officer of the Company or any officerof its Subsidiaries, director (B) member of the Company Board, or (C) employee of the Company or any of its subsidiaries; andSubsidiaries with an annual base salary in excess of $300,000, other than those that are terminable by the Company or any Subsidiary without advance notice and without Liability to the Company or its Subsidiaries other than to make continued healthcare coverage available under COBRA or similar state Law;
(xiixvi) any contract relating is a Real Property Lease; or
(xvii) provides for annual capital expenditures after the date of this Agreement in excess of $500,000 during the current or subsequent fiscal year or, together with all other Contracts providing for capital expenditures, provides for annual capital expenditures after the date of this Agreement in excess of $1,000,000 during the current or subsequent fiscal year. Each Contract of the type described in clauses (i) through (xvii) above, other than a Plan, is referred to any acquisition herein as a “Material Contract.”
(by merger, consolidation, acquisition b) True and complete copies of all Material Contracts (including all amendments, waivers or substantially all changes thereto) have been made available to Parent or its Representatives. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or the Subsidiary of the assets Company that is party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, subject to the Enforceability Exceptions, (ii) the Company and its Subsidiaries have complied with all obligations required to be performed or otherwisecomplied with by them under each Material Contract, (iii) from there is no default under any person or divestiture or disposition Material Contract by the Company or any of its subsidiaries to any person of material propertiesSubsidiaries, assetsor, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as Knowledge of the date Company, by any other party thereto, and (iv) to the Knowledge of this Agreement.
(c) Neither the Company, neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor Subsidiaries has the Company or any of its subsidiaries received any written notice of from any such material default, event or condition. To the knowledge of the Company, no other third party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company that such party intends to terminate such Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium for any default or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtalleged default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Globus Medical Inc), Merger Agreement (Nevro Corp)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) this Agreement, agreements filed as exhibits to the Company SEC Documents, Schedule 3.18(a) Documents or as set forth in Section 3.18 of the Company Disclosure Schedules, sets forth neither the Company nor any of its Subsidiaries is a complete party to or expressly bound by any Contract (excluding any Company Benefit Plan (other than with respect to clause (xiv) and accurate list as of the date of this Agreement of(xv) below) or Lease) that:
(i) any contract that would constitute a “material contract” (as such term is required to be filed as an exhibit to a report or filing under defined in Item 601(b)(10) of Regulation S-K of the Securities Act or Act) with respect to the Exchange ActCompany and its Subsidiaries, taken as a whole;
(ii) any contract that involves annual payments or consideration from contains restrictions on the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability right of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete Subsidiaries to engage in any material line of business, (y) compete activities competitive with any person Person or to solicit suppliers anywhere in the world, other than restrictions that are not material to the business of the Company and its Subsidiaries, taken as a whole;
(ziii) operate in provides for the formation, creation, operation, management or control of any geographic areajoint venture or partnership with a third party;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreementan indenture, credit agreement, loan agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any Contract providing for indebtedness for borrowed money of the Company or any of its subsidiaries Subsidiaries (other than indebtedness among the Company and/or any of its Subsidiaries) in excess of $1,000,000 10 million;
(v) is outstanding a settlement, conciliation or may be incurred and all guarantees of or by similar Contract that would require the Company or any of its subsidiaries Subsidiaries to pay consideration of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of more than $5 million after the date of this AgreementAgreement or that contains restrictions on the business and operations of the Company and its Subsidiaries that are material to the business of the Company and its Subsidiaries, taken as a whole;
(viiivi) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ixA) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair provides for the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to Subsidiaries of any person business (whether by merger, sale of material propertiesstock, assets, capital stock sale of assets or other equity interests, in each case, involving payments otherwise) with a value in excess of $1,000,000; in each case for such contracts as 50 million or (B) pursuant to which the Company or any of its subsidiaries Subsidiaries acquired or will acquire any material ownership interest in any other Person or other business enterprise other than any Subsidiary of the Company, in each case, under which the Company or any of its Subsidiaries has obligations remaining to be performed as of the date hereof;
(vii) obligates the Company or any Subsidiary of the Company to make any future capital investment or capital expenditure outside the ordinary course of business and in excess of $5 million;
(viii) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or prohibits the pledging of the capital stock of the Company or any Subsidiary of the Company;
(ix) has resulted in payments by the Company or any of its Subsidiaries of more than $5 million in the aggregate for the prior fiscal year (other than Contracts subject to clause (v) above);
(x) has resulted in payments to the Company or any of its Subsidiaries of more than $10 million in the aggregate for the prior fiscal year;
(xi) is a Collective Bargaining Agreement or similar agreement to which the Company or any of its Subsidiaries is a party or to which the Company or any of its Subsidiaries is bound;
(xii) is with (A) each of the ten (10) largest customers of the Company and its Subsidiaries, taken as a whole (the “Material Customers”) and (B) each of the ten (10) largest commercial vendors of the Company and its Subsidiaries, taken as a whole (the “Material Vendors”), in each case by dollar amount for the fiscal year ending December 31, 2021;
(xiii) provides for (A) indemnification of any officer, director or employee by the Company, other than Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Parent or (B) accelerated vesting in connection with a change of control (including as a result of any termination of employment following a change of control);
(xiv) is a Contract that is for the employment or engagement of any directors, officers, employees or independent contractors of the Company or any of its Subsidiaries at annual base cash compensation in excess of $400,000;
(xv) (A) is between the Company or any of its Subsidiaries, on the one hand, and any director or officer of the Company or any of its Subsidiaries or any Person beneficially owning five percent or more of the outstanding shares of the Company Common Stock, on the other hand, except for any Company Benefit Plan or (B) that would be required to be disclosed under Item 404 under Regulation S-K under the Securities Act; or
(xvi) (A) under which the Company or any of its Subsidiaries has granted or received an exclusive license to any Intellectual Property, (B) otherwise materially restricting the Company or any of its Subsidiaries’ ability to use, enforce, or disclose any Company Intellectual Property, (C) under which the Company or any of its Subsidiaries has the right to use any Intellectual Property licensed from a third Person that is material to the business of the Company and its Subsidiaries, taken as a whole, (D) under which the Company or any of its Subsidiaries has granted a right to any Company Intellectual Property, which grant is material to the business of the Company and its Subsidiaries, taken as a whole, or (E) under which the Company or any of its Subsidiaries has delivered, made available, licensed, or placed into escrow any source code owned by any of them that is boundmaterial to the business of the Company and its Subsidiaries, taken as a whole, other than, with respect to each of (A) through (E), (1) non-disclosure agreements entered into in the ordinary course of business, (2) nonexclusive, “off-the-shelf” software licenses granted by third parties to the Company or any of its Subsidiaries, (3) Open Source Licenses, (4) maintenance and support and professional services Contracts with the Company or its Subsidiaries, (5) non-exclusive licenses to customers, resellers, or distributors in the ordinary course of business and (6) agreements with employees and contractors in the ordinary course of business. Each such contract Contract of the type described in any of clauses (i) through – (xiixvi) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract.”.
(b) Prior True and correct copies of each Company Material Contract have been publicly filed prior to the date of this Agreement, Agreement or otherwise made available to Parent. Neither the Company has provided complete and accurate copies nor any Subsidiary of all the Company is in breach of or default under the terms of any Company Material Contracts (including all amendmentsContract where such breach or default would reasonably be expected to have, modificationsindividually or in the aggregate, supplementsa Company Material Adverse Effect. To the Knowledge of the Company, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material ContractContract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date of this Agreement, each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge Knowledge of the Company, of each other party thereto, and is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcythe Enforceability Exceptions.
(c) To the Knowledge of the Company, insolvencysince the date of the Audited Company Balance Sheet, reorganizationthe Company has not received any written or, 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 Knowledge of the court before which Company, oral notice from or on behalf of any proceeding therefor may be broughtMaterial Customer indicating that such Material Customer intends to terminate or not renew, any Company Material Contract with such Material Customer.
(d) To the Knowledge of the Company, since the date of the Audited Company Balance Sheet, the Company has not received any written or, to the Knowledge of the Company, oral notice from or on behalf of any Material Vendor indicating that such Material Vendor intends to terminate, or not renew, any Company Material Contract with such Material Vendor.
Appears in 2 contracts
Sources: Merger Agreement (Sailpoint Technologies Holdings, Inc.), Merger Agreement (Sailpoint Technologies Holdings, Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 2.14(a) of the Company Disclosure SchedulesSchedule identifies, sets forth a complete and accurate list as of the date of this Agreement of:(provided that the disclosures required by Section 2.14(a)(xv) shall be provided and deemed incorporated into the Disclosure Schedule not more than five (5) Business Days after the date hereof), in each subpart that corresponds to the subsection listed below, any Contract in effect as of the date hereof, (x) to which the Company or any Subsidiary is a party or (y) by which the Company or any Subsidiary or any of their assets is bound or under which the Company or any Subsidiary has any obligation (the Contracts described below, whether or not set forth in Section 2.14(a) of the Disclosure Schedule, being referred to herein as the “Material Contracts”):
(i) any contract that is required to be filed as an exhibit to with a report Significant Customer or filing under the Securities Act or the Exchange Acta Significant Supplier;
(ii) any contract that involves annual payments or consideration from pursuant to which the Company or any Subsidiary (A) has been appointed a partner, reseller, dealer, or distributor or OEM or (B) has appointed another party as dealer, distributor, sales representative, OEM, value added reseller, remarketer or reseller of its subsidiaries any of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyProducts;
(iii) pursuant to which the Company or any contract Subsidiary is bound to or has committed to provide any Company Product to any third party on a most favored pricing basis;
(iv) pursuant to which the Company or any Subsidiary is bound to, or has committed to provide or license (A) any patents that contains are Company IP to any covenant restricting third party, or (B) any Intellectual Property Rights to any third party on an exclusive basis, or (C) any commitment to acquire or license any product or service on an exclusive basis from a third party;
(v) imposing any restriction by its terms on the right or ability of the Company or any Subsidiary (or that would purport by its terms to limit the freedom of Parent or any of its subsidiaries Affiliates): (A) to compete with any other Person or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete to engage in any material line of business, (y) compete with market or geographic area, or to sell, license, manufacture or otherwise distribute any person of its technology or (z) operate products, or from providing services, to customers or potential customers or any class of customers, in any geographic area;
, during any period of time, or in any segment of the market; or (ivB) to solicit the employment of, or hire, any contract granting to any person potential employees, consultants or independent contractors (other than non-disclosure agreements entered into in the ordinary course of business); notwithstanding the foregoing in this sub-section (v), restrictions relating to the license grants of Intellectual Property Rights from third Persons to the Company or any Subsidiary (or restrictions on the use of its subsidiariesthe software or Intellectual Property Rights embodied in such licenses) “most favored nation” pricing provisions;
shall not be considered Material Contracts even if they otherwise meet the requirements of this sub-section (v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) that grants (A) any contract relating right of first refusal, right of first offer or similar right with respect to any joint venturematerial assets, partnership, strategic alliance, rights or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness properties of the Company or any of its subsidiaries the Subsidiaries, or (B) any royalties to any Person;
(vii) set forth or required to be set forth in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as Sections 2.13(a)(ii) of the date of this AgreementDisclosure Schedule;
(viii) any contract with set forth or with respect required to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement)be set forth in Section 2.15(a)(1) of the Disclosure Schedule;
(ix) any contract that requires is a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the MergerLease Agreement;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries and involving future payments in excess of $1,000,000 100,000 individually or $500,000 in the aggregate;
(xi) relating to the settlement of any contract providing Action for indemnification an amount in excess of $50,000;
(xii) relating to (A) the disposition or acquisition by the Company of material assets in any other Person or any its subsidiaries (B) the acquisition by the Company of any officersecurities of any other Person;
(xiii) Contract of any guaranty, director pledge, performance or employee completion bond, indemnity or surety arrangement, but excluding indemnities granted in the ordinary course of business in connection with the sale of Company Products, standard customer, supplier and distributor Contracts, and indemnification agreements with officers or directors of the Company or any of its subsidiaries; andSubsidiary that have been made available to Parent;
(xiixiv) creating or governing any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(xv) any prime (direct) contract relating executed or submitted to or on behalf of any acquisition Governmental Entity;
(by merger, consolidation, acquisition xvi) any Contract not required to be listed above pursuant to which any obligations continue to be outstanding and that contemplates or involves: (A) the payment or delivery of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock cash or other equity interests, consideration in each case, involving payments an amount or having a value in excess of $1,000,000500,000 per year in the aggregate; or (B) the performance of services having a value in each case for such contracts as to which excess of $500,000 per year in the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”aggregate.
(b) Prior to the date of this Agreement, the The Company has provided Made Available true, correct and complete and accurate copies of all Company written Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date hereof, including all amendments thereto. Section 2.14(b) of this Agreement.
(c) the Disclosure Schedule provides an accurate description of the terms of each Material Contract that is not in written form. Each Material Contract is valid and in full force and effect and is enforceable against the Company and by the Company or the Subsidiaries in accordance with its terms, subject to the Enforceability Limitations. Neither the Company nor any subsidiary of the Company is Subsidiary has violated or breached in any material breach of respect, or committed any material default under the terms or conditions of under, any Company Material Contract and no event or condition has occurred that constitutesContract, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orand, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge Knowledge of the Company, no other party to Person has violated or breached in any Company Material Contract is in material breach of respect, or committed any material default under the terms or conditions of under, any Company such Material Contract. Each Company Material Contract is a valid and binding obligation of To the Company and, to the knowledge Knowledge of the Company, is in full force no event has occurred, and effectno circumstance or condition exists, enforceable in accordance that (with its terms in all material respectsor without notice or lapse of time) will, except that or would reasonably be expected to: (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium result in a violation or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and breach of any of the provisions of any Material Contract; (ii) equitable remedies give any Person the right to declare a default or exercise any remedy under any Material Contract; (iii) give any Person the right to accelerate the maturity or performance of specific performance and injunctive and other forms any Material Contract; or (iv) give any Person the right to cancel, terminate or modify any Material Contract. Neither the Company nor any Subsidiary has received any written notice regarding any actual or possible violation or breach of, or default under, any Material Contract. Neither the Company nor any Subsidiary has waived any of equitable relief may be subject its material rights under any Material Contract. Neither the Company nor any Subsidiary has received any written notice from a Person threatening to equitable defenses and terminate or refuse to perform its obligations under any Material Contract (regardless of whether such Person has the discretion of the court before which any proceeding therefor may be broughtright to do so under such Contract).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (GOOD TECHNOLOGY Corp), Agreement and Plan of Reorganization (GOOD TECHNOLOGY Corp)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 7.9(a) of the Company Clinigence Disclosure Schedules, sets forth Schedule provides a true and complete and accurate list as of each of the date following contracts to which Clinigence or any of its Subsidiaries is party other than this Agreement of:(collectively, the “Clinigence Material Contracts”):
(i) All leases for real property used by Clinigence or any contract that is required of its Subsidiaries and all leases of personal property and any Contract affecting any right, title or interest in or to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Actreal property;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period All Contracts with Persons who are Service Providers, and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyall Clinigence Plans;
(iii) Any Contract involving financing or borrowing of money, or evidencing indebtedness; any contract that contains liability for borrowed money; any covenant restricting letters of credit; any obligation for the ability deferred purchase price of the Company property in excess of $25,000; or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete guaranteeing in any material line of business, (y) compete way any Contract in connection with any person or (z) operate in any geographic areaPerson;
(iv) any contract granting to any person (other than the Company Any joint venture, partnership, cooperative arrangement or any other Contract involving a sharing of its subsidiaries) “most favored nation” pricing provisionsprofits;
(v) Any Contract with any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries)Governmental Authority;
(vi) any contract relating Any Contract with respect to any joint venturethe discharge, partnershipstorage or removal of effluent, strategic alliance, waste or other similar agreements to which the Company or any of its subsidiaries is a partypollutants;
(vii) Any Contract for the purchase or sale of any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness Assets of the Company Clinigence or any of its subsidiaries Subsidiaries other than in excess the ordinary course of $1,000,000 is outstanding business or may be incurred and all guarantees for the option or preferential rights to purchase or sell any Assets of or by the Company Clinigence or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this AgreementSubsidiaries;
(viii) Any Contract containing covenants not to compete in any contract with line of business or with respect to a labor unionany Person in any geographical area or that would otherwise result in Clinigence or any of its Subsidiaries being bound by, guild or subject to, any non-compete or other employee representative (restriction on the operation or scope of its businesses, including any collective bargaining agreement or works council agreement)the Clinigence Business;
(ix) Any Contract related to the acquisition of a business or the equity of any contract that requires a consent to other Entity or otherwise contains a provision relating to a change the sale of control, Clinigence or that would any of its Subsidiaries or could reasonably be expected to prevent, delay any Asset of Clinigence or impair the consummation any of the transactions contemplated herein, including the Mergerits Subsidiaries;
(x) any contract requiring Any other Contract which (i) provides for payment or otherwise relating to any future capital expenditures performance by the Company either party thereto having an aggregate value of $25,000 or more; (ii) is not terminable without payment or penalty on thirty (30) days (or less) notice; or (iii) is between, inter alia, Clinigence or any of its subsidiaries in excess of $1,000,000 in the aggregateSubsidiaries and an Affiliate thereof;
(xi) any contract providing for indemnification by the Company or any its subsidiaries Any proposed arrangement of any officera type that, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by mergerif entered into, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is would be a party or by which any of them is bound. Each such contract Contract described in any of clauses (iSection 7.9(a)(i) through (xii7.9(a)(x) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”above.
(b) Prior to the date of this Agreement, the Company has provided True and complete and accurate copies of all Company each written Clinigence Material Contracts Contract and true and complete written summaries of each oral Clinigence Material Contract (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereofmodifications and waivers thereto) in effect as of the date of this Agreementhave been provided to iGambit by Clinigence.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Each Clinigence Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company andcurrently valid, to the knowledge of the Company, is in full force and effect, and is enforceable by Clinigence or its Subsidiaries, as applicable, in accordance with its terms terms.
(d) Neither Clinigence nor any of its Subsidiaries is in default, and no party has notified Clinigence or any of its Subsidiaries in writing that Clinigence or any of its Subsidiaries is in default, under any Clinigence Material Contract. No event has occurred, and no circumstance or condition exists, that might, with or without notice or lapse of time:
(i) result in a violation or breach of any of the provisions of any Clinigence Material Contract;
(ii) give any Person the right to declare a default or exercise any remedy under any Clinigence Material Contract;
(iii) give any Person the right to accelerate the maturity or performance of any Clinigence Material Contract or to cancel, terminate or modify any Clinigence Material Contract; or
(iv) otherwise have an Clinigence Material Adverse Effect in connection with any Clinigence Material Contract.
(e) Neither Clinigence nor any of its Subsidiaries has waived any of its rights under any Clinigence Material Contract.
(f) The performance of the Clinigence Material Contracts will not result in any violation of or failure by Clinigence or any of its Subsidiaries to comply in all material respectsrespects with any Legal Requirement.
(g) The Clinigence Material Contracts constitute all of the Contracts necessary to enable Clinigence and its Subsidiaries to conduct the Clinigence Business in the manner in which such Clinigence Business is currently being conducted.
(h) The consummation of the Merger shall not result in Clinigence or any of its Subsidiaries being bound by, except that (i) such enforcement may be or subject to applicable bankruptcyto, insolvency, reorganization, moratorium any non-compete or other similar Lawsrestriction on the operation or scope of its businesses, 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 including the discretion of the court before which any proceeding therefor may be broughtClinigence Business.
Appears in 2 contracts
Sources: Merger Agreement (iGambit, Inc.), Merger Agreement (iGambit, Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) Section 4.15 of the Company Disclosure Schedules, Schedule sets forth a complete and accurate list as all of the date of this Agreement of:
(i) any contract that is required following Contracts to be filed as an exhibit to a report or filing under which the Securities Act or Company, the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company Purchased Companies or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries their Subsidiaries is a party or by which any of them it is bound. Each such contract described bound under which there are continuing obligations (other than confidentiality restrictions) and other than the Company Plans and Contracts made after the date hereof as permitted by or in any of clauses compliance with Section 6.2 (collectively, the "Material Contracts"): (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in Contracts with any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes current officer or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge director of the Company, any other party thereto under any such Company Material Contract, nor has the Company Purchased Companies or any of its subsidiaries received their Subsidiaries; (ii) Contracts with any notice of labor union or association representing any such material default, event or condition. To the knowledge employee of the Company, no the Purchased Companies or any of their Subsidiaries; (iii) Contracts pursuant to which any party is required to purchase or sell a stated portion of its requirements or output from or to another party; (iv) Contracts for the sale of any of the assets of the Company, the Purchased Companies or any of their Subsidiaries other party than in the Ordinary Course of Business or for the grant to any Company Material Contract is in material breach of or material default under the terms or conditions person of any preferential rights to purchase any of its assets; (v) joint venture agreements; (vi) Contracts containing covenants of the Company, the Purchased Companies or any of their Subsidiaries not to compete in any line of business or with any person in any geographical area or covenants of any other person not to compete with the Company, the Purchased Companies or any of their Subsidiaries in any line of business or in any geographical area; (vii) Contracts relating to the acquisition by the Company, the Purchased Companies or any of their Subsidiaries of any operating business or the capital stock of any other person; (viii) Contracts relating to the borrowing of money; (ix) any 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 similar commitment with respect to the Liability or Indebtedness of any other Person; (xi) trust indenture, mortgage, promissory note, loan agreement or (xii) other Contracts, other than Real Property Leases, which involve the expenditure by the Company, the Purchased Companies or any of their Subsidiaries of more than $150,000 in the aggregate or $25,000 annually or require performance by any party more than one year from the date hereof or are otherwise material to the Company, the Purchased Companies and any of their Subsidiaries taken as a whole. The Company, the Purchased Companies and their Subsidiaries have provided or made available to the Purchaser true and complete copies of all of the written Material ContractContracts and written summaries of the material terms of all of the oral Material Contracts. Each Company All of the Material Contract is a Contracts and other agreements are in full force and effect and are the legal, valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effectthe Purchased Companies and/or any of their Subsidiaries, enforceable against them in accordance with its terms in all material respectstheir terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other and similar Laws, now or hereafter in effect, relating to laws affecting creditors’ ' rights and remedies generally and subject, as to enforceability, to general principles of equity (ii) equitable remedies regardless of specific performance and injunctive and other forms whether enforcement is sought in a proceeding at law or in equity). None of equitable relief may be subject to equitable defenses and the Company, the Purchased Companies or any of their Subsidiaries is in default in any material respect under any Material Contract, nor, to the discretion Knowledge of the court before which Company, the Purchased Companies or any proceeding therefor may be broughtof their Subsidiaries, is any other party to any Material Contract in default thereunder in any material 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) Except for contracts (including all amendments and modifications thereto) this Agreement, the Company Benefit Plans, agreements filed as exhibits to the Company SEC Documents, Schedule Documents or as set forth on the applicable subsection of Section 3.18(a) of the Company Disclosure SchedulesSchedule, sets forth a complete and accurate list as of the date hereof, neither Company nor any of this Agreement ofits Subsidiaries is a party to or bound by:
(i) any contract that “material contract” (as such term is required to be filed as an exhibit to a report or filing under defined in Item 601(b)(10) of Regulation S-K of the Securities Act or the Exchange ActSEC);
(ii) any contract Contract that involves annual payments (A) imposes any restriction on the right or consideration from the ability of Company or any of its subsidiaries Subsidiaries to compete with any other person or in any geographic area or acquire or dispose of more than $1,000,000 during any twelve the securities of another person, or (12B) month period contains an exclusivity or other clause that restricts the operations of the business of Company and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltySubsidiaries in a material manner;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreementmortgage, credit agreement, note, debenture, bondindenture, mortgagesecurity agreement, guaranteepledge, indenture or other contract (collectively, “debt obligations”) pursuant to which agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its subsidiaries Subsidiaries in an amount in excess of $1,000,000 is outstanding 5,000,000, except any transaction among Company and its wholly owned Subsidiaries or may be incurred among Company’s wholly owned Subsidiaries;
(iv) any executory Contract that provides for the acquisition or disposition of assets, rights or properties with a value in excess of $5,000,000, except any transaction among Company and all guarantees its wholly owned Subsidiaries or among Company’s wholly owned Subsidiaries;
(v) any material joint venture, partnership or limited liability company agreement or other similar material Contract relating to the formation, creation, operation, management or control of any material joint venture, partnership or by limited liability company, other than any such Contract solely between Company and its Subsidiaries or among Company’s Subsidiaries;
(vi) any Contract expressly limiting or restricting the ability of Company or any of its subsidiaries Subsidiaries to make distributions or declare or pay dividends in respect of debt obligations their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vii) any Contract that obligates Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person other than (A) any loan or capital contribution to, or investment in, (x) Company or one of its Subsidiaries or (y) any person (other than an officer, director or employee of Company or any of its Subsidiaries unrelated to business travel and other business-related expenses in the ordinary course of business) that is less than $500,000 (with respect to capital contributions and investments) or $100,000 (with respect to loans) to such person, including (B) extensions of credit to customers in the respective aggregate principal amounts outstanding as ordinary course of the date business and consistent with customary trade terms, or (C) advancement obligations under any indemnification agreement entered into by Company or any of this Agreementits Subsidiaries;
(viii) any contract with Contract pursuant to which Company or with respect any of its Subsidiaries made aggregate payments of more than $20,000,000 during the 12-month period ended December 31, 2019, except (x) for any such Contract that may be cancelled by Company or any of its Subsidiaries upon notice of 90 days or less or (y) for leases, subleases, licenses and occupancy agreements that relate to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement)the Company Leased Real Property;
(ix) any contract that requires a consent Contract pursuant to which Company or otherwise contains a provision relating to a change any of controlits Subsidiaries generated annual revenues of more than $40,000,000 during the 12-month period ended December 31, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger2019;
(x) any contract requiring Contract that includes any affiliate of Company as a counterparty or otherwise relating third party beneficiary and that would be required to any future capital expenditures by be disclosed under Item 404 of Regulation S-K of the Company or any of its subsidiaries in excess of $1,000,000 in the aggregateSEC;
(xi) any contract providing for indemnification Contract that contains “earn out” or other contingent payment obligations, that are reasonably expected to result in payments after the date hereof by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; andSubsidiaries in excess of $2,500,000;
(xii) any contract relating lease, sublease, license or occupancy agreement with respect to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the a Company Leased Real Property under which Company or any of its subsidiaries to any person of material properties, assets, capital stock Subsidiaries is a lessee or other equity interests, in each case, involving payments in excess of $1,000,000; in each case sublessee and for such contracts as to which the Company or any of its subsidiaries is a party annual base rental payments during the 12-month period ended December 31, 2019 exceeded $1,750,000, or by which any the terms of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after lease or sublease, are reasonably expected to exceed $1,750,000 during the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.next 12 months; and
(bxiii) Prior any Contract relating to the date of this Agreement, the material Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes Intellectual Property or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on Company IT Asset, excluding (A) non-exclusive licenses to commercially available software with annual expenditures of less than $1,000,000 or (B) non-exclusive rights granted to customers and others in the part ordinary course of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtbusiness.
Appears in 2 contracts
Sources: Transaction Agreement (Delphi Technologies PLC), Transaction Agreement (Borgwarner Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, 3.17 sets forth a complete and accurate list of all Material Contracts as of the date of this Agreement of:
Agreement. The Company has heretofore made available to the Investors true, correct and complete copies of all written or oral (in the case of oral agreements or understandings, the Company has provided written summaries thereof to the Investors) contracts and agreements (and all amendments, modifications and supplements thereto and all side letters affecting the obligations of any party thereunder) to which the Company or any of its Subsidiaries is a party or by which any of its properties or assets are bound that are material to the business, properties or assets of the Company and its Subsidiaries, including, without limitation, (i) Contracts or arrangements that purport to limit, curtail or restrict the ability of the Company or any contract of its Subsidiaries to compete in any geographic area or line of business, (ii) Contracts or arrangements, including charters or similar agreements with respect to Vessels (as hereinafter defined), under which the Company or any of its Subsidiaries has potential revenues, benefits liabilities or obligations in excess of $250,000, other than Gulf Offshore Contracts, (iii) Contracts or arrangements that is are not terminable by the Company or such Subsidiary without penalty on less than sixty (60) days' notice, (iv) Contracts or arrangements that would be required to be filed as an exhibit to a report or filing under Form 10-K filed by the Securities Act or Company with the Exchange Act;
Commission on the date hereof, (iiv) any contract employment, severance, product design or development, personal services, consulting, non-competition or indemnification Contracts, (vi) Contracts or arrangements granting a right of first refusal or first negotiation, (vii) partnership or joint venture Contracts, (viii) Gulf Offshore Contracts that involves annual payments have a term in excess of one-year, (ix) Contracts or consideration from arrangements with any Governmental Authority, (x) loan or credit agreements, mortgages, indentures or other agreements or instruments evidencing indebtedness for borrowed money by the Company or any of its subsidiaries of more than $1,000,000 during Subsidiaries or any twelve such Contract pursuant to which indebtedness for borrowed money may be incurred, or any guaranty or suretyship Contract or Contracts pursuant to which a Lien is granted, (12xi) month period and is not terminable by the Company or its subsidiary on 90 Contracts granting registration rights, (or fewer) days’ notice without penalty;
(iiixii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of businesslease, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, sublease or other similar agreements Contract, pursuant to which the Company or any of its subsidiaries is a party;
Subsidiaries uses or occupies or has the right to use or occupy, now or in the future, any real property and pursuant to which the Company or any Subsidiary has potential liabilities or obligations in excess of $250,000, and (viixiii) commitments and Contracts to enter into any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract of the foregoing (collectively, “debt obligations”) pursuant to which together with any indebtedness such Contracts entered into in compliance with Section 5.01 hereof, the "Material Contracts"). Each of the Material Contracts constitutes the valid and legally binding obligation of the Company or any of its subsidiaries Subsidiaries and, to the Company's Knowledge, the other parties thereto, enforceable in excess of $1,000,000 is outstanding or accordance with its terms (except as enforceability may be incurred limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and all guarantees similar Laws of general applicability relating to or affecting creditors' rights or by general equity principles), and is in full force and effect. To the Company's Knowledge, there is no material default under any Material Contract either by the Company or any of its subsidiaries of debt obligations of Subsidiaries or by any other personparty thereto, including and no event has occurred that with the respective aggregate principal amounts outstanding as lapse of time or the date giving of this Agreement;
(viii) any contract with notice or with respect to both would constitute a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures material default thereunder by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company Subsidiaries or any its subsidiaries of other party. Except as set forth on Schedule 3.17, no party to any officer, director or employee of Material Contract has given written notice to the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by mergerSubsidiaries of, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by made a written claim against the Company or any of its subsidiaries to Subsidiaries with respect to, any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtthereunder.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Seabulk International Inc), Stock Purchase Agreement (Seabulk International Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) Section 4.11 of the Company Disclosure Schedules, Letter sets forth a true and complete and accurate list list, as of the date hereof, of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability all Contracts of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements following types to which the Company or any of its subsidiaries Company Subsidiary is a party;party or to which any of their respective assets or property are bound:
(viia) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) Contract pursuant to which any indebtedness of the Company or any of its subsidiaries 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 $1,000,000 350,000 or is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreementotherwise material;
(viiic) any contract Contract with any Related Person of the Company (other than any Company Plans or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreementStatutory Plans);
(ixd) any contract 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 that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Mergerby this Agreement;
(xe) any contract requiring Contract pursuant to which the Company is the lessee or otherwise 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 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 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 future Action since January 1, 2020;
(i) any Contract that results in any Person holding a power of attorney from the Company or any of its Subsidiaries that relates to the Company, any of its Subsidiaries or their respective business other than in the Ordinary Course of Business;
(j) any Contract for the purchase of any debt or equity security or other ownership interest of any Person, or for the issuance of any debt or equity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other ownership interests of, the Company or any Company Subsidiary;
(k) any hedging, futures, options or other derivative Contract;
(l) any mortgages, indentures, guarantees, loans, or credit agreements, security agreements, or other Contracts, in each case evidencing Indebtedness of the Company or any Company Subsidiary (other than any Company Plans or Statutory Plans, in each case, that provide severance or other termination-related payments);
(m) any partnership, joint venture, limited liability company agreement or similar Contract relating to the formation, creation, operation, management, or control of any material joint venture, partnership, or limited liability company (other than any Organizational Documents of the Company or the Company Subsidiaries);
(n) any Contract that purports to materially limit or restrict the rights of the Company or any of its Subsidiaries (or, at any time after the consummation of the First Merger or Second Merger, Parent or any of its Subsidiaries) (A) to engage in any line of business, (B) compete with any Person or solicit any client or customer, or (C) operate in any geographical location;
(o) any Contract that grants any right of first refusal, right of first offer, or similar right with respect to any material assets, rights, or properties of the Company or any of its Subsidiaries;
(p) any Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party or upon consummation of the First Merger or Second Merger will obligate Parent or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party;
(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 (other than purchasing activities in the Ordinary Course of Business);
(r) any Contract relating to the future acquisition or disposition, directly or indirectly (by merger, sale of stock, sale of assets, or otherwise), by the Company or any of its subsidiaries in excess Subsidiaries of $1,000,000 material operating assets (other than purchasing activities or inventory sales in the aggregate;
(xiOrdinary Course of Business) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interestsinterest of another Person (other than the Company or a Company Subsidiary), other than (i) acquisitions pursuant to budgeted capital expenditures in each case, involving payments the Ordinary Course of Business or (ii) acquisitions or dispositions that do not individually have a value in excess of $1,000,000500,000;
(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) any other Contract, other than purchase orders entered into in each case the Ordinary Course of Business, Company Plans and Statutory Plans, that by its terms calls for such contracts as to which aggregate payments or receipts by the Company or and its Subsidiaries under such Contract of more than $100,000 over any twelve month period. Collectively, the Contracts that are required to be listed on Section 4.11 of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is Company Disclosure Letter are referred to herein as a the “Material Contracts”. Except as set forth on Section 4.11 of the Company Material Contract”.
(b) Prior to the date of this AgreementDisclosure Letter, the Company and its Subsidiaries are not party to or bound by any Material Contracts. The Company has provided made available to Parent correct and complete and accurate copies of all Company Material Contracts (Contracts, including all amendmentsany amendments thereto. Each Material Contract is, modificationssubject to the Equitable Exceptions, supplementsvalid and binding on the Company and/or its Subsidiaries, exhibitsas applicable, schedulesand to the Company’s Knowledge, annexes or each other documents modifying or supplementing party thereto and is in full force and effect and will continue to be in full force and effect on identical terms immediately following the terms thereof) in effect as of the date of this Agreement.
(c) Closing Date. Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of Company, any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orSubsidiary nor, to the knowledge Knowledge of the Company, any other party thereto under to any such Material Contract is in breach or violation of, or default under, and there does not exist any event which, with the giving of notice or the lapse of time, would constitute a breach or default by the Company, any Company Subsidiary or, to the Knowledge of the Company, any other party under, any Material Contract, in each case except for such breaches, defaults and events as to which requisite waivers or 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 the Company or any of its subsidiaries Subsidiaries received any notice claim of any such material breach, violation or default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Patterson Uti Energy Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications theretoSchedule 4.13(a) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date hereof an accurate, correct and complete list of this Agreement of:all Seller Contracts to which any of the descriptions set forth below apply (the “Material Contracts”):
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange ActReal Property Leases, Personal Property Leases and IP Licenses;
(ii) any contract that involves annual payments Any outstanding Contract for capital expenditures or consideration from for the Company purchase of goods or any services for the Business in excess of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty25,000;
(iii) Any joint venture, partnership, cooperative arrangement or any contract that contains other Contract involving a sharing of profits primarily relating to any covenant restricting the ability of the Company Purchased Assets or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic areaBusiness;
(iv) any contract granting to any person Any advertising Contract not terminable without payment or penalty on thirty (other than the Company 30) days (or any of its subsidiariesless) “most favored nation” pricing provisionsnotice;
(v) Any Contract granting or receiving any contract that provides for “exclusivity,” rights of first refusalright, rights of first negotiation title or any similar requirement interest in favor of any person (other than the Company or any of its subsidiaries)to real property;
(vi) Any Contract with any contract relating Governmental Authority that directly applies to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company Business or any of its subsidiaries is a partythe Purchased Assets;
(vii) any loan agreementAny Contract with respect to the discharge, credit agreementstorage or removal of effluent, note, debenture, bond, mortgage, guarantee, indenture waste or other contract (collectively, “debt obligations”) pursuant pollutants primarily relating to which any indebtedness of the Company Business or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this AgreementPurchased Assets;
(viii) Any Contract relating to any contract with license or with respect royalty arrangement that directly applies to a labor union, guild the Business or other employee representative (including any collective bargaining agreement or works council agreement)of the Purchased Assets;
(ix) any contract that requires a consent to Any power of attorney, proxy or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Mergersimilar instrument;
(x) Any Contract for the manufacture, service or maintenance of any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregateSeller Product;
(xi) Any requirement or output Contract with respect to the Seller Products;
(xii) Any Contract to indemnify any contract providing for indemnification by Person or to share in or contribute to the Company or any its subsidiaries liability of any officer, director Person;
(xiii) Any Contract containing covenants not to compete in any line of business or employee of with any Person in any geographical area primarily relating to the Company Business or any of its subsidiariesthe Purchased Assets or which would be binding on Purchaser or the Purchased Subsidiary after the Closing;
(xiv) Any other Contract primarily relating to the Business or any of the Purchased Assets (including current Contracts with customers of the Business), which (i) provides for payment or performance by either party thereto having an aggregate value of $50,000 or more; (ii) is not terminable without payment or penalty on thirty (30) days (or less) notice; or (iii) is between, inter alia, an Affiliate and Seller; and
(xiixv) any contract relating Any other Contract that involves future payments, performance of services or delivery of goods or materials to any acquisition (or by merger, consolidation, acquisition Seller of all an aggregate amount or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments value in excess of $1,000,000; in each case for such contracts as 25,000 on an annual basis and primarily relating to which the Company Business or any of its subsidiaries or the Purchased Assets or that otherwise is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after material to the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”Business.
(b) Prior to the date of this Agreement, the Company Seller has provided to Purchaser accurate, correct and complete and accurate copies of all Company Material Contracts (Contracts, including all material amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms modifications and waivers thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Each Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a currently valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, and is enforceable by Seller in accordance with its terms in all material respectsterms, except that (i) such enforcement as may be subject to applicable limited by bankruptcy, insolvency, reorganization, moratorium or and other similar Laws, now laws and equitable principles related to or hereafter in effect, relating to limiting creditors’ rights generally and by general principles of equity.
(iid) equitable remedies (i) Seller is not in default in a material respect, and no party has notified Seller that it is in default in a material respect, under any Material Contract. No event has occurred as of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses the date hereof, and to the discretion Knowledge of Seller, no circumstance or condition exists, that will be reasonably likely to (with or without notice or lapse of time): (A) result in a violation or breach of any of the court before which provisions by Seller of any proceeding therefor may be brought.Material Contract; (B) give any Person the right to declare a default or exercise any remedy under any Material Contract;
Appears in 2 contracts
Sources: Asset Purchase Agreement (Smith Micro Software Inc), Asset Purchase Agreement (Pc Tel Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to otherwise disclosed in the Company SEC DocumentsReports, Schedule 3.18(a) to the knowledge of the Company, Section 5.16 of the Company Disclosure Schedules, sets forth Schedule contains a complete and accurate list as of each contract to which the date of this Agreement of:
Company or a Company Subsidiary is a party that (i) any contract that is required purports to be filed as an exhibit to a report limit, curtail or filing under restrict the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability right of the Company or any of its subsidiaries or affiliates Company Subsidiary (including Parent after the Merger ClosingA) to: (x) conduct to engage or compete in any material line of businessbusiness in any geographic area or with any Person, or which requires exclusive referrals of business or requires the Company or any Company Subsidiary to offer specified products or services to their customers on a priority or exclusive basis or (yB) to compete with any person or (z) operate in any geographic area;
location, (ii) is a standstill or similar agreement restricting the Company from acquiring the securities of, soliciting proxies respecting, or affecting the control, of any Person, (iii) by its terms, purports to bind or otherwise limit, in any material respect, any Affiliate of the Company (other than any individual or any Company Subsidiary) following the consummation of the Transactions, (iv) pursuant to which material indebtedness for borrowed money may be incurred or is guaranteed by the Company or any contract granting Company Subsidiary, (v)(A) requires the Company or any Company Subsidiary to indemnify any person other Person in any material respect or (B) obligates the Company or any Company Subsidiary to make any earn-out payments of a material amount based on future performance of an acquired business or assets, (vi) contains a “most favored nation” right or provision (or any similar right or provision) in favor of any Person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company Subsidiaries) or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding except as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 described in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of preceding clauses (i) through (xiivi), is material to the Company’s business (such contracts and agreements, together with the “material contracts” (as such term is defined in Item 601(b)(10) of this Section 3.18(aRegulation S-K promulgated under the Securities Act) (and each contract entered into after filed as an exhibit to the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is Company SEC Reports, being collectively referred to herein as a the “Company Material ContractContracts”).
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company Subsidiary is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orand, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to is, in breach or violation of, or in default under, any Company Material Contract. As of the date of this Agreement, none of the Company or any Company Subsidiary has received any written notice of default, termination or cancellation under any Company Material Contract is and no event has occurred which would result in a material breach of or violation of, or a material default under the terms or conditions of under, any Company Material ContractContract (in each case, with or without notice or lapse of time or both). Each Company Material Contract is a valid valid, binding and binding obligation enforceable, in all material respects, in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles) and is in full force and effect, in all material respects, with respect to the Company or Company Subsidiaries, as applicable, and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, 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 respect to the discretion of the court before which any proceeding therefor may be broughtother parties thereto.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Cnet Networks Inc), Merger Agreement (CBS Corp)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.10(a) of the Company Seller Disclosure Schedules, Letter sets forth a complete and accurate list as of each of the date of this Agreement of:
(i) following Contracts, except for any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of businessBenefit Plan, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries Subsidiaries is a partyparty that, as of the Execution Date (each, a “Material Contract”):
(i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(viiii) involves annual expenditures by the Company or its Subsidiaries in excess of $2,500,000, whether or not entered into in the ordinary course of business;
(iii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture Contract providing for capital lease obligations of the Company or other contract (collectively, “debt obligations”) any Subsidiary of the Company pursuant to which the Company or such Subsidiary, as applicable, is required to make aggregate payments in excess of $100,000;
(iv) any indebtedness Contract with any Affiliate of the Company or any of its subsidiaries Subsidiaries (other than Contracts with Seller or a Subsidiary of Seller, or any Contract solely between or among the Company and the Subsidiaries of the Company or by and among Subsidiaries of the Company);
(v) any lease, sublease or similar Contract with any Person under which the Company or any Subsidiary of the Company is a lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any third party and such lease, sublease or similar Contract requires the Company or a Subsidiary of the Company to make payments to such third party in excess of $1,000,000 200,000 per year;
(vi) any Contract under which the Company or any Subsidiary of the Company is outstanding obligated to make any advance, loan, extension of credit or may be incurred and all guarantees capital contribution to, or other investment in, any Person;
(vii) (A) grants any third party a right of first offer or by right of first refusal, in each case, that is material to the Business (other than any such rights granted in the ordinary course in connection with a Franchise), (B) imposes any exclusivity obligations on the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or Subsidiaries with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation conduct of the transactions contemplated hereinBusiness (other than any obligations imposed in the ordinary course in connection with a Franchise), including the Merger;
(xC) imposes any contract requiring or otherwise relating to any future capital expenditures by non-competition obligation on the Company or any of its subsidiaries Subsidiaries that restricts the Company’s or its Subsidiaries’ ability to compete with any business or in excess of $1,000,000 any geographical area (other than exclusive territories granted in the aggregateordinary course in connection with a Franchise), or (D) grants any third party “most favored nation” status;
(xiviii) any contract providing provides for indemnification a partnership, joint venture or similar arrangement by the Company or any its subsidiaries of any officer, director or employee of and among the Company or any of its subsidiaries; andSubsidiaries, on the one hand, and a third party, on the other hand;
(xiiix) is a Contract pursuant to which the Company or any contract relating of its Subsidiaries receives from or grants to any third party any license under any material Intellectual Property Rights, where such Contract is material to the Business, other than those (A) non-exclusive licenses granted in the ordinary course of business and (B) non-exclusive licenses to commercially available off-the-shelf software;
(x) is a Contract to which the Company or any of its Subsidiaries is a party, in each case, providing for (A) the acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person Subsidiaries of material properties, properties or assets, in each case, except for acquisitions and dispositions of properties and assets in the ordinary course of business, or (B) the pending or future acquisition from another Person or pending or future disposition to another Person of assets or capital stock or other equity interestsinterest of another Person and other Contracts that relate to an acquisition or similar transaction which contain material continuing obligations with respect to the Company or any of its Subsidiaries, in each any such case, involving after the date hereof; or
(xi) is a Contract that is a settlement, conciliation or similar agreement with respect to a Proceeding (A) that has been entered into with any Governmental Authority during the two (2) years immediately preceding the Execution Date, which includes payments in excess of $1,000,000; in each case for such contracts as 250,000 or equitable relief material to the Business, (B) pursuant to which the Company or any of its subsidiaries Subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into obligated after the date of this Agreement to pay consideration in excess of $250,000 that would have has not otherwise been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior paid out prior to the date of this Agreement, or (C) that would otherwise materially limit the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as operation of the date of this AgreementBusiness as currently operated.
(cb) Neither Seller has delivered or made available to Buyer prior to the Execution Date current and complete copies of each Material Contract (other than any Company nor Franchise Agreements). Except for expirations, including any subsidiary non-renewals, in the ordinary course of the Company is business and in material breach of or material default under accordance with the terms or conditions of any Company such Material Contract, each Material Contract is valid, binding and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of enforceable against the Company or any of its subsidiaries orSubsidiaries, to as the knowledge of the Companycase may be, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge Knowledge of the CompanySeller, each other party thereto, and is in full force and effect, enforceable except for such failures to be valid and binding or to be in accordance with full force and effect as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As of the Execution Date, there is no breach or violation of, or default under, any such Material Contract by the Company or any of its terms in all material respectsSubsidiaries or, 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 Knowledge of Seller, any counterparty thereto, and no event has occurred that, with the court before which lapse of time or the giving of notice or both, would constitute a default thereunder by the Company or any proceeding therefor may of its Subsidiaries or would permit or cause the termination or modification thereof, in each case except as would not, individually or in the aggregate, reasonably be broughtexpected to have a Material Adverse Effect.
Appears in 1 contract
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aset forth in Section 3.13(a) of the Company Disclosure SchedulesSchedule or specifically approved by the Purchaser under Section 5.1, sets forth a complete and accurate list as none of the date Companies or any of this Agreement of:
their Subsidiaries is a party to or bound by any: (i) any contract Contract that is would be required to be filed by Honeywell as an exhibit a material contract pursuant to a report or filing under Item 601(b)(10) of Regulation S-K of the Securities Act or the Exchange Act;
SEC (including Contracts relating to compensation of executive officers); (ii) any contract that involves annual payments or consideration from the Contract containing covenants of a Company or any Subsidiary of its subsidiaries a Company not to compete in any line of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company business, industry or its subsidiary on 90 (or fewer) days’ notice without penalty;
geographical area; (iii) Contract which creates a partnership or joint venture or similar arrangement between any contract that contains of the Companies or their Subsidiaries and another Person or any covenant restricting options, rights (preemptive or otherwise), warrants, calls, convertible securities or commitments or any other agreements or arrangements with respect to any equity securities of the ability Companies or their Subsidiaries; (iv) indenture, letters of credit, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or agreement providing for Indebtedness or any Encumbrance (other than a Permitted Encumbrance) on any assets of the Company or their Subsidiaries in an amount exceeding $100,000; (v) Contract for the sale of any of its subsidiaries or affiliates (material assets, including Parent any real property, after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person date hereof (other than inventory in the Company or any ordinary course of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiariesbusiness consistent with past practice);
; (vi) any contract relating to any joint venturecollective bargaining agreement, partnership, strategic alliance, employee association agreement or other agreement with any labor union, employee representative group, works council or similar agreements to which the Company or any collection of its subsidiaries is a party;
employees, (vii) any loan consulting agreement, credit management agreement, noteadvisory agreement, debentureemployment agreement, bondseverance agreement, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining retention agreement or works council change-of-control agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving case providing for payments in excess of $1,000,000100,000 in any fiscal year; in each case for such contracts as to which (viii) Contract between the Company Companies and their Subsidiaries, on the one hand, and any of Honeywell or its Affiliates or Subsidiaries or any of its subsidiaries or their officers or directors or entities in which they have an controlling interest (other than Contracts solely between the Companies and their Subsidiaries), on the other hand (other than ordinary course trade payables and trade receivables negotiated on an arms’ length basis); (ix) Contract under which the Companies and their Subsidiaries have made payments in excess of $250,000 in the last fiscal year or anticipate making payments in excess of $250,000 in the current fiscal year or of more than $500,000 over the life of the Contract (other than purchase orders or invoices entered into in the ordinary course of business consistent with past practice); (x) any Contract containing any material license of, or any option to assign or purchase, any material Intellectual Property (excluding, however, licenses of commercially available software), including the Third Party License Agreements; (xi) Contract under which the Companies and their Subsidiaries received payments in excess of $250,000 in the last fiscal year or anticipate receiving payments in excess of $250,000 in the current fiscal year or of more than $500,000 over the life of the Contract (other than sales orders or invoices entered into in the ordinary course of business consistent with past practice); (xii) Contract involving any Key Customers or Key Suppliers, other than purchase orders
(xiv) Contract involving the acquisition of the business or stock (or, to the extent constituting a going-concern business, assets or other properties) of any other Person since June 1, 2004. Set forth in Section 3.13(a) of the Disclosure Schedule is a party or true and correct copy of the terms of the standard warranties provided by which any of them is boundthe Companies and their Subsidiaries with respect to products sold. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreementi)-(xiv) is referred to herein as a “Company Material Contract.”.
(b) Prior Except as set forth in Section 3.13(b) of the Disclosure Schedule (i) none of the Companies or any of their Subsidiaries (or, in the case of the Third Party License Agreements, none of Honeywell or its Subsidiaries) is (and, to the date knowledge of this AgreementHoneywell, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or no other documents modifying or supplementing the terms thereofparty is) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or default under any Material Contract, (ii) none of the Companies or their Subsidiaries (or, in the case of the Third Party License Agreements, none of Honeywell or its Subsidiaries) has received (a) any written or, to the knowledge of Honeywell, oral notice or claim of material default under any Material Contract, (b) any written or, to the terms knowledge of Honeywell, oral notice, of an intention to terminate, not renew or conditions challenge the validity or enforceability of any Company Material Contract and (other than Contracts with Key Customers or Key Suppliers, as to which this notice shall be governed by Section 3.14), (iii) to the knowledge of Honeywell, no event or condition has occurred that constitutesthat, or, after with or without notice or lapse of time or both, would constitute, result in a material breach or default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge (iv) each of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, Contracts is in full force and effect, is the valid, binding and enforceable in accordance with its terms in all material respectsobligation of the Companies and their Subsidiaries, except that (i) such enforcement may and will not be subject to applicable bankruptcytermination solely as a result of the sale of Shares by Sellers pursuant to this Agreement, 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 knowledge of Honeywell, of the court before which any proceeding therefor may be broughtother parties thereto. Honeywell has Made Available to Purchaser true and complete copies of each Material Contract, including all material amendments, waivers, exhibits, schedules or attachments thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sensata Technologies Holland, B.V.)
Material Contracts. (a) Except for contracts (including For all amendments purposes of and modifications thereto) filed as exhibits to the Company SEC Documentsunder this Agreement, Schedule 3.18(a) a “Material Contract” shall mean any of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements following to which the Company or any of its subsidiaries Subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture party or other contract (collectively, “debt obligations”) pursuant to by which any indebtedness assets of the Company or any of its subsidiaries Subsidiaries are bound as of the date of this Agreement:
(i) any “material contract” (as such term is defined in excess Item 601(b)(10) of $1,000,000 is outstanding or may be incurred and all guarantees Regulation S-K of or the SEC without regard to the exclusion contained therein for “ordinary course” contracts);
(ii) any Contract that contains any covenant by the Company or any of its subsidiaries Subsidiaries or any of debt their Affiliates (A) to not engage in any line of business or to not engage in its business in any geographic location or (B) to limit the Persons to whom the Company or any of its Subsidiaries or any of their Affiliates may sell products or deliver services or the types of services or products that may be sold or delivered, in each case other than any such Contracts that may be cancelled without material liability to the Company or its Subsidiaries upon notice of ninety (90) days or less;
(iii) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries of any Person or other business enterprise (whether by merger, sale of stock, sale of assets or otherwise) which has any obligations which have not been satisfied or performed that are or would be material to the Company and its Subsidiaries, taken as a whole;
(iv) any Company IP Contract set forth in Section 4.15(b) of the Company Disclosure Letter;
(v) any Contract providing for indemnification or guarantee of the obligations of any third party that would be material to the Company and its Subsidiaries, taken as a whole, other personthan any such Contracts entered into in the ordinary course of business consistent with past practice;
(vi) any Contract that relates to the formation, including creation, operation, management or control of any legal partnership or any joint venture entity pursuant to which the respective aggregate Company has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(vii) any Contract that involves or relates to indebtedness for borrowed money having an outstanding principal amounts outstanding amount in excess of $250,000 (whether incurred, assumed, guaranteed or secured by any asset) outside the ordinary course of business or any Contract that grants a Lien (other than Permitted Liens) on any property or asset of the Company or any of its Subsidiaries;
(viii) any Contract that grants to any Person any rights of first refusal, or preferential or similar rights, to purchase any products of the Company;
(ix) any Contract that contains an agreement for the Company or any of its Subsidiaries to indemnify any other Person against any claim of infringement, unauthorized use, misappropriation, dilution or violation of the Company Intellectual Property Rights (except for Contracts entered into in the ordinary course of business consistent with past practice);
(x) any collocation agreements, carrier agreements, peering agreements, traffic or data exchange agreements or other Contracts involving the provision of connectivity to, or the exchange of data with, applicable facilities;
(xi) any Lease of Leased Real Property; and
(xii) any Contract, or group of Contracts with a Person (or group of affiliated Persons), the termination or breach of which would have a Company Material Adverse Effect and is not disclosed pursuant to clauses (i) through (x) above.
(b) Section 4.12(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to or by which the Company or any of its Subsidiaries is a party as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (True and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company such Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes exhibits and schedules thereto) have been (i) publicly filed with the SEC or other documents modifying or supplementing the terms thereof(ii) in effect as of the date of this Agreementmade available to Parent.
(c) Neither Each Material Contract is valid and binding on the Company nor any subsidiary (and/or each such Subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orparty thereto) and, to the knowledge Knowledge of the Company, any each other party thereto under any such Company Material Contractthereto, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable against the Company or each such Subsidiary of the Company party thereto, as the case may be, in accordance with its terms in all material respectsterms, except that such enforceability (i) such enforcement may be subject to limited by applicable bankruptcy, insolvency, reorganization, moratorium or and other similar Laws, now laws affecting or hereafter in effect, relating to creditors’ rights generally generally, and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be is subject to equitable defenses general principles of equity, and neither the Company nor any of its Subsidiaries that is a party thereto, nor, to the discretion Knowledge of the court before which Company, any proceeding therefor may other party thereto, is in breach of, or default under, any such Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach or default thereunder by the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any other party thereto, except for such failures to be broughtin full force and effect and such breaches and defaults that would not have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 1 contract
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as As of the date of this Agreement ofAgreement, neither the Company nor any of its Subsidiaries is party to or bound by, whether in writing or not, any contract, arrangement, commitment or understanding that:
(i) (A) contains any contract material exclusivity or similar provision (includ- ing with respect to any Intellectual Property Rights) that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from binding on the Company or any of its subsidiaries Subsidiaries (or, after the Effective Time, purportedly New Charter or any of more than $1,000,000 during its Subsidiaries) or (B) otherwise limits or restricts in any twelve material respect the Company or any of its Subsidiaries (12or, after the Effective Time, purportedly New Charter or any of its Subsidiaries) month period from (1) engaging or competing in any material line of business in any loca- tion or with any Person, (2) selling any products or services of or to any other Person or in any geographic region or (3) obtaining products or services from any Person;
(ii) includes (A) any “most favored nations” terms and is not terminable conditions (in- cluding with respect to pricing) granted by the Company to a Third Party, (B) any ar- rangement whereby the Company grants any right of first refusal or right of first offer or similar right to a Third Party or (C) any arrangement between the Company and a Third Party that limits or purports to limit in any respect the ability of the Company or its subsidiary on 90 Sub- sidiaries (or, after the Effective Time, purportedly New Charter or fewerany of its Subsidiaries) days’ notice without penaltyto own, operate, sell, license, transfer, pledge or otherwise dispose of any material assets or business, in each case of clauses (A), (B) and (C), that is material to the Company and its Subsidiaries, taken as a whole;
(iii) is a joint venture, alliance or partnership agreement that either
(A) is material to the Company and its Subsidiaries, taken as a whole, or (B) would rea- sonably be expected to require the Company and its Subsidiaries to make expenditures in excess of $100,000,000 in the aggregate during the 12-month period following the date hereof, but excluding any contract joint venture, alliance or partnership agreement to which Parent or any of its Subsidiaries is a party;
(iv) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than those between the Company and its Subsidiaries) relating to indebtedness in an amount in excess of $100,000,000 individually;
(v) is a material interest, rate, currency or other swap or derivative transaction (other than those entered into in the ordinary course of business solely for hedging purposes);
(vi) is an acquisition agreement, asset purchase or sale agreement, stock purchase or sale agreement or other similar agreement pursuant to which (A) the Company reasonably expects that contains it is required to pay total consideration including as- sumption of debt after the date hereof to be in excess of $100,000,000 or (B) any covenant restricting other Person has the ability right to acquire any assets of the Company or any of its subsidiaries Subsidiaries (or affiliates (including Parent any interests therein) after the Merger Closing) to: (x) conduct date of this Agreement with a fair market value or compete in any material line pur- chase price of business, (y) compete with any person or (z) operate in any geographic areamore than $100,000,000;
(ivvii) is a material contract, arrangement, commitment or understanding with the FCC or any contract granting other Governmental Authority relating to any person the operation or construc- tion of Cable Systems that are not fully reflected in the Franchises;
(other than viii) is an agreement pursuant to which the Company or any of its subsidiaries) “most favored nation” pricing provisions;
Sub- sidiaries manages, operates or provides material services to any Cable Systems that are not, directly or indirectly, wholly owned by the Company (v) including any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than agreement pur- suant to which the Company or any of its subsidiaries);
(vi) Subsidiaries is required to cause any contract relating such Cable Systems to any joint venture, partnership, strategic alliance, or be included in programming service distribution agreements and other similar agreements to which the Company or any of its subsidiaries is a Subsidiaries are party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);; or
(ix) is a settlement or similar agreement with any contract that requires Governmental Au- thority or order or consent of a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as Governmental Authority to which the Company or any of its subsidiaries Subsidiaries is a party subject involving future performance by the Company or by which any of them its Subsidiaries which is bound. Each material to the Company and its Subsidiaries, taken as a whole; (each such contract described listed in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary 4.19 of the Company is in material breach of or material default under the terms or conditions of Disclosure Schedule and any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part contract of the Company or any of its subsidiaries or, to the knowledge Subsidiaries that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the CompanySEC) (other than any Company Plan), any other party thereto under any such a “Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought”).
Appears in 1 contract
Sources: Merger Agreement
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, 3.9 sets forth a complete and accurate list as list, in each case whether written or unwritten, of all of the date of this Agreement of:
(i) any contract that is required following contracts, agreements and arrangements with respect to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) toSubsidiary: (x) conduct or compete in any material line of business, (y) compete contracts with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements respect to which the Company or any Subsidiary has any liability or obligation involving more than $ , contingent or otherwise; contracts which may extend for a term of its subsidiaries more than one year after the Closing; contracts under which the amount payable by the Company or any Subsidiary is a party;
(vii) any loan agreementdependent on the revenue, credit agreement, note, debenture, bond, mortgage, guarantee, indenture income or other contract (collectivelysimilar measure of the Company, “debt obligations”) pursuant any Subsidiary or any other Person; licenses, leases, contracts, agreements and other arrangements with respect to which any indebtedness [material] property of the Company or any Subsidiary, including without limitation, distribution, sales and supply contracts; contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof; contracts and other arrangements of its subsidiaries in excess the Company or any Subsidiary with any officer, director, manager, stockholder, member or Affiliate of $1,000,000 is outstanding the Company or may be incurred any Subsidiary or any of their respective relatives or Affiliates; contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation or no-hire provisions; employment, severance, consulting, deferred compensation, collective bargaining, benefits and all guarantees similar plans, agreements, contracts or other arrangements involving the Company or any Subsidiary; contracts relating to or involving any franchise, partnership, joint venture or other similar arrangement; contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by the Company or any Subsidiary; contacts with governmental agencies, departments or authorities; strategic alliance, co-marketing, co-promotion, co-packaging, joint development or similar agreements; powers of its subsidiaries attorney; agreements, contracts, instruments, commitments, plans or other arrangements of debt obligations the Company or any Subsidiary outside of the ordinary course of business; and other agreements, contracts, instruments, commitments, plans or other arrangements of the Company or any Subsidiary which are material to the Business or which a reasonable purchaser would consider important in deciding whether or not to acquire the Company. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases (as hereinafter defined) and all IP Licenses (as hereinafter defined) are sometimes collectively referred to as “Material Contracts”. The Company has furnished to the Purchaser true and correct copies of all Material Contracts (or descriptions thereof, in the case of oral contracts). Each Material Contract (or description) sets forth the entire agreement and understanding between the Company and/or each Subsidiary and the other parties thereto. Each Material Contract is valid, binding and in full force and effect. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any other personevent and/or the passage of time, including could constitute a default or breach under any such Material Contract by the respective aggregate principal amounts outstanding as Company and/or any Subsidiary or, to the knowledge of the date Company (for purposes of this Agreement;
(viii, the knowledge of the Company or any similar phrase shall be deemed to include the knowledge of the Subsidiaries), any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. The Company has no reason to believe that the parties to any Material Contract will not fulfill their obligations thereunder in all material respects. Real Property. Schedule 3.10(a) any contract with or with respect to a labor union, guild or other employee representative sets forth each interest in real property (including any collective bargaining agreement or works council agreement);
(ixall land, buildings, easements, rights of way and other real property rights) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures owned by the Company or any Subsidiary (the “Owned Property”). The Company and each Subsidiary, as applicable, has good and marketable title to the Owned Property, free and clear of its subsidiaries all Liens, except for Permitted Liens, and enjoys peaceful and quiet possession of the Owned Property. The Owned Property is legally subdivided and consists of separate tax lots so that each is assessed separate and apart from any other real property. There are no suits, actions or proceedings pending or, to the Company’s knowledge, threatened against or affecting any of the Owned Property before any court or administrative agency or office. Each parcel of the Owned Property is an independent unit which does not now rely on any facilities (other than the facilities of public utility and water companies) located on any other property (i) to fulfill any Legal Requirement or (ii) for structural support or the furnishing to the buildings or other improvements on the Owned Property of any building systems. There are no material Taxes, levies, fees or similar costs or charges which must be paid with respect to existing water or sewer hook-ups or other similar services relating to the Owned Property. As used herein, “Permitted Liens” means (i) prior to the Closing, the Liens designated as such on Schedule 3.10(a), (ii) statutory Liens for current taxes or assessments not yet due and payable and (iii) such other Liens, imperfections in excess title and easements of $1,000,000 record, if any, which do not detract, individually or in the aggregate;
(xi) any contract providing for indemnification , from the value of or interfere with the present or proposed use by the Company or any its subsidiaries of any officer, director or employee Subsidiary of the Company property subject thereto or any affected thereby. Schedule 3.10(b) sets forth each interest in real property (including all land, buildings, easements, rights of its subsidiaries; and
(xiiway and other real property rights) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition leased by the Company or any Subsidiary, the lessor of its subsidiaries to any person of material propertiessuch leased property, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the annual rent payable by the Company or any Subsidiary in respect of such leased property, and each lease or any other arrangement under which such property is leased (the “Leased Property” and together with the Owned Property, the “Real Property”). The Company and each Subsidiary, as applicable, enjoys peaceful and quiet possession of its subsidiaries leased premises, and is a party not in default or by which breach under any of them is boundsuch leasehold. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary Subsidiary has been informed that any lessor under any of the leases set forth on Schedule 3.10(b) (the “Real Estate Leases”) has taken action in respect of any Real Estate Lease or threatened to terminate any Real Estate Lease before the expiration date specified in such lease. The Company and each Subsidiary is entitled to the benefit of non- disturbance agreements that will permit it to continue to occupy any Leased Property under its existing leases in the event of a change in ownership or foreclosure upon the fee interest in such Leased Property. The Real Property includes all real property necessary for the conduct of the Business and is adequate to conduct the operations of the Company and the Subsidiaries as currently conducted. Neither the Company nor any Subsidiary needs to own or lease any other real property to conduct the Business. The Real Property is in compliance in all material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part respects with all applicable Legal Requirements. None of the Company buildings, plant or structures on any Real Property is in need of its subsidiaries maintenance or repairs except for ordinary, routine maintenance and repairs that are, individually and in the aggregate, immaterial. All utility systems serving the Real Property are adequate for the Business as currently conducted. Each Real Property has adequate access for ingress from and egress to a public way. There is no pending or, to the knowledge of the Company, threatened condemnation, eminent domain or similar proceeding with respect to any other party thereto under Real Property. Personal Property and Assets. All material tangible assets of the Company and each Subsidiary are in good operating condition and repair, normal wear and tear excepted, and are adequate to conduct the operations of the Company and its Subsidiaries as currently conducted. The Purchased Assets include all assets and properties necessary for or currently used in the conduct of the Business, and are adequate to conduct the Business as currently conducted. No assets used or useful in the Business are owned by any such Company Material Contract, nor has Seller or any Affiliate of the Company or any of its subsidiaries received any notice of any such material defaultSeller. At the Closing, event the Purchaser will acquire from the Company good title to or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid leasehold or license interest in the Purchased Assets, free and binding obligation clear of the Company andall Liens, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtthan Permitted Liens. Intellectual Property.
Appears in 1 contract
Sources: Asset Purchase Agreement
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, 3.7 sets forth a complete and accurate list of all Material Contracts (as of defined below) pertaining to the date of this Agreement ofBusiness. The term “Material Contracts” includes the following:
(i) any contract that is required provides for aggregate future payments after April 1, 2007 of more than $25,000 by any of the Sellers pertaining to be filed as an exhibit to a report the Business or filing under by any of the Securities Act or the Exchange ActSubsidiaries;
(ii) any contract that involves annual payments with any current or consideration from the Company former officer, director, partner, member, manager, stockholder or any affiliate of its subsidiaries any of more than $1,000,000 during the Sellers pertaining to the Business or of any twelve (12) month period and is not terminable by of the Company or its subsidiary on 90 (or fewer) days’ notice without penaltySubsidiaries;
(iii) any contract that contains any covenant restricting was entered into other than in the ability ordinary course of business pertaining to the Company Business or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic areaSubsidiaries;
(iv) any contract granting pertaining to any person (other than the Company Business or any of its subsidiaries) “most favored nation” pricing provisionsthe Subsidiaries for joint ventures, strategic alliances, partnerships, licensing arrangements or sharing of profits or proprietary information;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than pertaining to the Company Business or any of its subsidiaries)the Subsidiaries containing covenants not to compete in any line of business or with any individual, partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust or joint venture, or a governmental agency or political subdivision thereof (a “Person”) in any geographical area or not to solicit or hire any individual with respect to employment or covenants of any other Person not to compete with regards to the Business or any of the Subsidiaries;
(vi) any contract pertaining to the Business or of the Subsidiaries relating to the acquisition (by merger, purchase of stock or assets or otherwise) of any joint venture, partnership, strategic alliance, operating business or material assets or the capital stock or other similar agreements to which the Company or equity interests of any of its subsidiaries is a partyPerson;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture contract pertaining to the Business or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company Subsidiaries that guarantees or indemnifies or otherwise causes any of its subsidiaries in excess the Subsidiaries to be liable for the obligations or liabilities of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other personanother, including indentures, guarantees, loan or credit agreements, purchase money obligations incurred in connection with the respective aggregate principal amounts outstanding as acquisition of the date of this Agreementproperty, pledge agreements and security agreements;
(viii) any contract with pertaining to the Business or with respect to a labor unionof the Subsidiaries providing for severance, guild retention, change in control or other employee representative (including any collective bargaining agreement or works council agreement)similar payments;
(ix) any contract that requires a consent pertaining to the Business or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated hereinSubsidiaries for the employment of any individual on a full-time, including the Mergerpart-time or consulting or other business;
(x) any contract requiring Contracts pertaining to the Business or otherwise relating to any future capital expenditures of the Subsidiaries providing for indemnification by the Company Subsidiaries arising out of or in connection with any of its subsidiaries in excess of $1,000,000 product or service offering in the aggregateBusiness (the “Business Products”);
(xi) any contract providing for indemnification by pertaining to the Company Business or any its subsidiaries of any officer, director or employee of the Company Subsidiaries that involves the borrowing or any lending of its subsidiaries; andmoney;
(xii) any contract relating pertaining to any acquisition (by merger, consolidation, acquisition of all the Business or substantially all of the assets Subsidiaries that contains any warranty terms in connection with the sale of Business Products; or
(xiii) Contracts pertaining to the Business or otherwise) from any person or divestiture or disposition by of the Company or any of its subsidiaries Subsidiaries that are otherwise material to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”Subsidiaries.
(b) Prior to Each of the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under full force and effect and is the terms or conditions of any Company Material Contract and no event or condition has occurred that constituteslegal, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effectexecuting Seller or Subsidiary, enforceable against them in accordance with its terms terms. Except as set forth in all Schedule 3.7, none of the Sellers or the Subsidiaries is in material respectsdefault under any Material Contract, except that (i) such enforcement may be subject to applicable bankruptcynor, 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 Knowledge of the court before Sellers or the Subsidiaries, is any other party to any Material Contract in material default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a material default thereunder. Except as set forth in Schedule 3.7, 3.10 or 3.19, no party to any of the Material Contracts has exercised any termination rights with respect thereto, and no party has given notice of any significant dispute with respect to any Material Contract. The Sellers have delivered to the Buyer prior to the Closing true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto. For purposes of this Agreement, the term “Knowledge” shall mean the actual knowledge of the Person (including the actual knowledge of their officers and directors) or that knowledge which any proceeding therefor may could have been acquired by the Person after making such due inquiry and exercising such due diligence as a prudent businessperson would have made or exercised in the management of its business affairs, including due inquiry of the officers, directors or management employees who could have reasonably be broughtexpected to have knowledge of the matters in question.
Appears in 1 contract
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) Section 4.12 of the Company Disclosure Schedules, Letter sets forth a complete and accurate list as of the date of this Agreement of:
(i) any contract that is required of each Contract to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from which either the Company or any of its subsidiaries Subsidiaries is a party or bound pursuant to which the Company has current or future obligations, other than each Contract solely among the Company and its wholly owned Subsidiaries that:
(a) provides that any of more than $1,000,000 during them will not compete with any twelve other Person, or which grants “most favored nation”, rights of first refusal or offer or similar covenants to the counterparty to such Contract, in each case that is material to the Company and its Subsidiaries taken as a whole;
(12b) month period and is not terminable by purports to limit in any material respect either the type of business in which the Company or its subsidiary on 90 (Subsidiaries may engage or fewer) days’ notice without penaltythe manner or locations or geographic areas in which any of them may so engage in any business;
(iiic) any contract that contains any covenant restricting the ability of requires the Company or any of its subsidiaries or affiliates Subsidiaries (including Parent or, after the Merger ClosingEffective Time, Parent or its Subsidiaries) to: (x) conduct or compete in any material line of business, (y) compete to deal exclusively with any person Person or (z) operate in any geographic area;
(iv) any contract granting group of related Persons which Contract is material to any person the Company and its Subsidiaries, taken as a whole (other than any licenses or other Contracts entered into in the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiariesordinary course);
(vid) is material to the formation, creation, operation, management or control of any contract relating to any partnership, joint venture, partnership, strategic alliance, limited liability company or other similar agreements or arrangements, the book value of the Company’s investment in which exceeds $5,000,000;
(e) is a Lease Agreement or another Contract for the lease of real or personal property, in each case, providing for annual payments of $1,000,000 or more;
(f) is 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;
(g) contains a put, call or similar right pursuant to which the Company or any of its subsidiaries is a partySubsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person, other than as would not be material in type or amount;
(viih) was entered into with Affiliates (other than the Company and its Subsidiaries), any loan agreementdirector, credit agreementany officer or any beneficial owner of five percent (5%) or more of any class of equity interests of Company or any of its Subsidiaries that is not a Company Plan and that was entered into other than on arms’ length basis;
(i) involves or provides for the future disposition or acquisition of any asset or property with a fair market value or purchase price in excess of $7,000,000, noteor any material merger, debentureconsolidation, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) similar business combination transaction pursuant to which any indebtedness of the Company or any of its subsidiaries Subsidiaries has material outstanding obligations (excluding indemnification obligations in excess respect of $1,000,000 is outstanding or may be incurred representations and all guarantees warranties that survive indefinitely nor for periods equal to a statute of or by limitations);
(j) pursuant to which the Company or any of its subsidiaries of debt Subsidiaries has continuing “earn-out” obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries result in payments in excess of $1,000,000 in the aggregate;
(xik) any material contract providing for indemnification by between the Company or any of its subsidiaries Subsidiaries and a Governmental Entity;
(l) prohibits the payment of any officer, director dividends or employee distributions in respect of the equity interests of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by mergerSubsidiaries, consolidation, acquisition of all or substantially all prohibits the pledging of the equity interests or assets of the Company or otherwise) from any person of its Subsidiaries, or divestiture or disposition prohibit the issuance of guarantees by the Company or any of its subsidiaries Subsidiaries;
(m) requires the Company or any of its Subsidiaries, directly or indirectly, to make any person advance, loan, extension of material propertiescredit, assetsservice penalty or capital contribution to, capital stock or other equity interestsinvestment in, in each case, involving payments any Person (other than the Company or any of its wholly owned Subsidiaries) in excess of $1,000,000; 1,000,000 individually or $5,000,000 in each case for such contracts as the aggregate;
(n) constitutes any settlement agreement or other resolution of any actual of threatened Proceeding pursuant to which the Company or any of its subsidiaries Subsidiaries has outstanding payment obligations in excess of $1,000,000;
(o) is a party Contract material to the Company and its Subsidiaries, taken as a whole, that grants rights to use or practice rights, or covenants not to assert, under Intellectual Property, including agreements providing for access and use of hosted Software and licenses to use or practice rights under Intellectual Property granted by which (A) the Company or any of them its Subsidiaries to a third Person or (B) a third Person to the Company or any of its Subsidiaries, in each case of (A) and (B), other than non-exclusive licenses granted by the Company or any of its Subsidiaries to vendors, suppliers and to customers in the ordinary course of business or licenses for Software that is bound. Each commercially available on standard terms;
(p) is a Contract material to the Company and its Subsidiaries, taken as a whole (other than an employee that has executed an agreement pursuant to which such contract employee assigns to the Company or its Subsidiaries all right, title and interest in and to all Intellectual Property created in the course of such employee’s employment) pursuant to which (A) any third Person creates or develops for or on behalf of the Company or any of its Subsidiaries any Intellectual Property that is, or (B) the Company or any of its Subsidiaries creates or develops any Intellectual Property for any third Person;
(q) is a collective bargaining agreement or other material Contract to or with any labor union or other employee representative of a group of employees; or
(r) is a Contract not of a type (disregarding any dollar thresholds, materiality or other qualifiers, restrictions or other limitations applied to such Contract type) described in any of the foregoing clauses (ia) through (xiiq) that has or would reasonably be likely to, either pursuant to its own terms or the terms of this Section 3.18(a) (and each contract entered into after the date any related Contracts, involve payments in excess of this Agreement that would have been described $5,000,000 in any of year (such Contracts required to be listed pursuant to clauses (ia)-(q) through above and this clause (xii) r), the “Material Contracts”). A true, correct and complete copy of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company each Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as amended as of the date of this Agreement.
(c) , including all attachments, schedules and exhibits thereto, has been made available to Parent prior to the date of this Agreement. Each of the Material Contracts is valid and binding on the Company or its Subsidiaries, as the case may be and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orSubsidiaries nor, to the knowledge Knowledge of the Company, any other party thereto is in breach of or in default under any such Company Material Contract, nor 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 received any notice of any Subsidiaries, in each case, except for such material defaultbreaches and defaults as would not, event individually or condition. To in the knowledge of the Companyaggregate, no other party reasonably be expected to any have a Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtAdverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Covetrus, Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.14(a) of the Disclosure Schedule identifies, in each subpart that corresponds to the subsection listed below, any Contract (other than any Company Disclosure SchedulesEmployee Plan or Employee Agreement, sets forth a complete and accurate list including any written Contracts related thereto, that have been Made Available to Buyer) in effect as of the date Agreement Date, (x) to which the Company or any Subsidiary is a party, (y) by which the Company or any Subsidiary or any of this Agreement of:their assets is or may become bound or under which the Company or any Subsidiary has, or may become subject to, any obligation, or (z) under which the Company or any Subsidiary has or may acquire any right or interest (together with the Company IP Contracts required to be listed in Section 3.13(a)(iv) of the Disclosure Schedule and the Licensed IP Contracts required to be listed in Section 3.13(a)(iii) of the Disclosure Schedule, the “Material Contracts”):
(i) any contract that is required to be filed as an exhibit to with a report Top Customer or filing under Top Supplier, other than any sales orders or purchase orders entered into in the Securities Act or the Exchange Actordinary course of business;
(ii) any contract that involves annual payments or consideration from pursuant to which the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company Subsidiary has been appointed a sales referral partner, reseller or its subsidiary on 90 (or fewer) days’ notice without penaltydistributor;
(iii) pursuant to which the Company or any contract that contains Subsidiary has appointed a third party as a sales referral partner, reseller, or distributor;
(iv) pursuant to which the Company or any covenant restricting Subsidiary is bound to or has committed to provide any Company Product to any third party on a most-favored-nation basis or similar terms;
(v) pursuant to which the Company or any Subsidiary is bound to or has committed to provide or License any Company Product or other Intellectual Property to any third party on an exclusive basis or to acquire or License any product, service or Intellectual Property on an exclusive basis from a third party;
(vi) imposing any restriction on the right or ability of the Company or any Subsidiary (or that would purport to limit the freedom of the Buyer or any of its subsidiaries Affiliates): (A) to compete with any other Person or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete to engage in any material line of business, (y) compete with market or geographic area, or to sell, License, manufacture or otherwise distribute or provide any person of the Company Products or (z) operate the Company Technology, or from providing services, to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the market; (B) to solicit the employment of, or hire, any service providers of any Top Customer or Top Supplier; (C) to acquire any product, property or other asset (tangible or intangible), or any services, from any other Person; or (D) to develop or distribute any Intellectual Property or Intellectual Property Rights;
(ivvii) set forth or required to be set forth in Section 3.13(h) of the Disclosure Schedule;
(viii) providing for the development of any Intellectual Property, independently or jointly, by or for the Company or any Subsidiary, other than any Contracts with Contributors in the form of the Employee Proprietary Information Agreement or the Consultant Proprietary Information Agreement;
(ix) requiring source code for any Company IP to be delivered, Licensed or made available to any escrow agent or other Person;
(x) relating to (A) any contract granting facility not operated by the Company where the Company IT Systems or any other computer equipment used to operate or provide Company Products is located or (B) the lease, license or rental of any person (other than Company IT Systems to the Company or any of its subsidiaries) “most favored nation” pricing provisionsthe Subsidiaries;
(vxi) any contract that provides Contract for “exclusivity,” rights the purchase, lease, license or rental of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries equipment in excess of $1,000,000 250,000 on a one-time or annual basis;
(xii) that is outstanding a collectively bargained agreement or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other personsimilar Contract, including the respective aggregate principal amounts outstanding as of the date of this any Contract with any union, works council or similar labor entity;
(xiii) that is a Lease Agreement;
(viiixiv) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries and involving future payments in excess of $250,000 individually or $1,000,000 in the aggregate;
(xixv) relating to the settlement of any contract providing for indemnification by Action;
(xvi) relating to the Company disposition or acquisition of material assets or any its subsidiaries interest in any Person or business enterprise;
(xvii) relating to any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts or instruments relating to Indebtedness or extension of credit or the creation of any officer, director or employee Lien (other than a Permitted Lien) with respect to any asset of the Company or any of its subsidiaries; andSubsidiary;
(xiixviii) involving or incorporating any contract guaranty, pledge, performance bond or completion bond, or surety arrangement;
(xix) creating or relating to any acquisition (by merger, consolidation, acquisition of all partnership or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company joint venture or any sharing of its subsidiaries revenues, profits, losses, costs or liabilities;
(xx) relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Interested Party;
(xxi) constituting or relating to any person (A) prime contract, subcontract, letter contract, purchase order or delivery order executed or submitted to or on behalf of material propertiesany Governmental Entity or any prime contractor or higher-tier subcontractor, assetsor under which any Governmental Entity or any such prime contractor or subcontractor otherwise has or may acquire any right or interest, capital stock or (B) quotation, bid or proposal submitted to any Governmental Entity or any proposed prime contractor or higher-tier subcontractor of any Governmental Entity;
(xxii) that is a hedging, futures, options or other equity interests, derivative Contract;
(xxiii) that contemplates or involves: (A) the payment or delivery of cash or other consideration in each case, involving payments an amount in excess of $1,000,000500,000 in the aggregate; or (B) the performance of services having a value in excess of $500,000 in the aggregate, in each case for such contracts as to which following the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”Date.
(b) Prior to the date of this Agreement, the The Company has provided Made Available true, correct and complete and accurate copies of all Company written Material Contracts (Contracts, including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing amendments thereto. Section 3.14(b) of the Disclosure Schedule provides an accurate description of the terms thereof) of each Material Contract that is not in written form. Each Material Contract is valid and in full force and effect as and is enforceable by the Company in accordance with its terms, subject to Laws of general application relating to bankruptcy, insolvency and the date relief of this Agreement.
(c) debtors; and rules of law governing specific performance, injunctive relief and other equitable remedies. Neither the Company nor any subsidiary of the Company is in material breach of Subsidiary has violated or material breached, or committed any default under the terms or conditions of under, any Company Material Contract and no event or condition has occurred that constitutesContract, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orand, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge Knowledge of the Company, no other party to Person has violated or breached, or committed any Company default under, any such Contract. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to: (i) result in a violation or breach of any of the provisions of any Material Contract is in material breach of by the Company or material any Subsidiary; (ii) give any Person the right to declare a default or exercise any remedy under any Material Contract against the terms Company or conditions any Subsidiary; (iii) give any Person the right to accelerate the maturity or performance of any Material Contract by the Company or any Subsidiary; or (iv) give any Person the right to cancel, terminate or modify any Material Contract against the Company or any Subsidiary. Neither the Company nor any Subsidiary has received any written notice or other communication regarding any actual or possible violation or breach of, or default under, any Material Contract. Each Neither the Company nor any Subsidiary has waived any of its rights under any Material Contract. No Person is renegotiating, or has a right to renegotiate, in each case pursuant to the terms of any Material Contract, any amount paid or payable to the Company or any Subsidiary under any Material Contract is a valid and binding obligation or any other material term or provision of any Material Contract. No Person has threatened in writing to terminate or refuse to perform its obligations under any Material Contract (regardless of whether such Person has the Company and, right to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) do so under such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtContract).
Appears in 1 contract
Sources: Merger Agreement (F5 Networks, Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits Schedule 5.15 sets forth, by reference to the Company SEC Documentsapplicable subsection of this Section 5.15(a), Schedule 3.18(a) all of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements following outstanding Contracts to which the Company or any of its subsidiaries the Acquired Subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract party (collectively, “debt obligations”the "Material Contracts"):
(i) pursuant to which Contracts with Seller or an Affiliate thereof (including the Excluded Subsidiaries) or any indebtedness current or former officer, director, shareholder or Affiliate of the Company or any of its subsidiaries in excess the Acquired Subsidiaries, excluding employment Contracts with any current or former officer or director of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this AgreementAcquired Subsidiary;
(viiiii) Contracts with any contract with labor union or with respect to a labor union, guild or other employee representative (including association representing any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; andthe Acquired Subsidiaries;
(xiiiii) Contracts for (A) the sale of any contract of the assets of the Company or any of the Acquired Subsidiaries other than in the Ordinary Course of Business or (B) for the grant to any person of any preferential rights to purchase any of its assets;
(iv) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information;
(v) Contracts containing covenants of the Company or any of the Acquired Subsidiaries not to compete in any line of business or with any person in any geographical area or not to solicit or hire any Person with respect to employment or covenants of any other person not to compete with the Company or any of the Acquired Subsidiaries in any line of business or in any geographical area or not to solicit or hire any Person with respect to employment;
(vi) Contracts relating to any the acquisition (by merger, consolidation, acquisition purchase of all equity or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of the Acquired Subsidiaries of any operating business or assets material to the business of the Company or the Acquired Subsidiaries or the equity of any other Person;
(vii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien other than a Permitted Exception on any of its subsidiaries to any person of material properties, assets, capital stock including indentures, guarantees, loan or other equity interestscredit agreements, sale and leaseback agreements or purchase money obligations incurred in each caseconnection with the acquisition of property, involving payments mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(viii) purchase Contracts giving rise to Liabilities of the Company or any of the Acquired Subsidiaries in excess of $1,000,000; 50,000;
(ix) all Contracts other than Customer Contracts providing for payments by or to the Company or any of the Acquired Subsidiaries in each case excess of $100,000 in any fiscal year or $200,000 in the aggregate during the term thereof, and Customer Contracts providing for such contracts as payments to the Company or any of the Acquired Subsidiaries in excess of $250,000 in any fiscal year or $500,000 in the aggregate during the term thereof. Notwithstanding the foregoing, any Customer Contract providing for payments to the Company or any of the Acquired Subsidiaries in excess of $100,000 in any fiscal year or $200,000 in the aggregate during the term thereof shall be deemed to be a "Material Contract" for all purposes of this Agreement other than the first sentence of this Section 5.15(a)(ix);
(x) all Contracts obligating the Company or any of the Acquired Subsidiaries to provide or obtain products or services for a period exceeding one year or requiring the Company to purchase or sell a stated portion of its requirements or outputs, excluding employment Contracts;
(xi) Contracts under which the Company or any of its subsidiaries is a party the Acquired Subsidiaries has made advances or by which loans to any of them is bound. Each such contract described in any of clauses (i) through other Person;
(xii) Contracts providing for severance, retention, change in control or other similar payments;
(xiii) Contracts for the employment of this Section 3.18(aany individual on a full-time, part-time or consulting or other basis providing annual compensation in excess of $40,000;
(xiv) (and each contract entered into after outstanding agreements of guaranty, surety or indemnification, direct or indirect, by the date of this Agreement that would have been described in Company or any of clauses the Acquired Subsidiaries; and
(ixv) through (xii) of this Section 3.18(a) if such contract existed on Contracts that are otherwise material to the date of this Agreement) is referred to herein Company and the Acquired Subsidiaries taken as a “Company Material Contract”whole.
(b) Prior to Each of the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under full force and effect and is the terms or conditions of any Company Material Contract and no event or condition has occurred that constituteslegal, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and/or the Acquired Subsidiaries, enforceable against each of them in accordance with its terms. Neither the Company nor any Acquired Subsidiary is in material default under any Material Contract, nor, to the Knowledge of Seller or the Company, is any other party to any Material Contract in material default thereunder, and, to the knowledge Knowledge of Seller or the Company, is no event has occurred that with the lapse of time or the giving of notice or both would constitute a material default thereunder. Neither the Company nor any Acquired Subsidiary has given notice of any significant dispute or exercised any termination rights with respect to a Material Contract or received notice of a significant dispute or the exercise of any termination right by any other party to a Material Contract. Seller or the Company has provided to Purchaser in full force the data room or delivered to Purchaser pursuant to Purchaser's request true, correct and effectmaterially complete copies of all of the Material Contracts, enforceable in accordance together with its terms in all material respectsamendments, except that (imodifications or supplements thereto as of the date of such delivery. The Contracts listed on Schedule 5.15(b) such enforcement may be subject to applicable bankruptcyare terminable by, insolvencyas applicable, reorganizationthe Company or the relevant Acquired Subsidiary at any time for any reason without penalty or fee to, moratorium or other similar Lawspayment by (other than for goods or services previously received), now the Company 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 any of the court before which Acquired Subsidiaries, and do not otherwise subject the Company or any proceeding therefor may be broughtof the Acquired Subsidiaries to any fixed payment obligation without a right to receive a corresponding benefit.
Appears in 1 contract
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to Neither the Company SEC Documents, Schedule 3.18(a) nor any Subsidiary is a party to or bound by any of the Company Disclosure Schedules, sets forth a complete and accurate list following as of the date of this Agreement ofhereof:
(i) any contract that is required to be filed as an exhibit to a report material partnership, joint venture or filing under the Securities Act other similar agreement or the Exchange Actarrangement;
(ii) any contract that involves annual payments material agreement relating to the acquisition or consideration from disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) within the Company past three years in respect of which any material rights or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company obligation remain unperformed or its subsidiary on 90 (or fewer) days’ notice without penaltyunsatisfied;
(iii) any contract agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $5,000,000 and which may be prepaid on not more than 30 days’ notice without the payment of any penalty, other than any such agreement entered into in the ordinary course of business consistent with past practice;
(iv) any agreement that contains materially limits the freedom of the Company or any covenant restricting Subsidiary (or purports to limit in any respect the ability of Buyer or any of its Affiliates) to compete in any line of business or with any Person or in any area or which would so limit the freedom of the Company or any Subsidiary (or which would purport to limit in any respect Buyer or any of its Affiliates) after the Initial Closing Date;
(v) 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 or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of businessAffiliates, (y) compete with any person or (z) operate in any geographic area;
(ivB) any contract granting Person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to any person (other than vote by the Company or any of its subsidiaries) “most favored nation” pricing provisions;
Affiliates or (vC) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation director or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness officer of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company Affiliates or any “associates” or members of its subsidiaries the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of debt obligations the ▇▇▇▇ ▇▇▇) of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;such director or officer; or
(viiivi) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future material capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as maintenance agreements pursuant to which the Company or any of its subsidiaries is Subsidiaries has agreed to contribute capital to a third party or by which any of them is bound. Each (other than its Subsidiaries) under specified circumstances and/or maintain such contract described in any of clauses third party’s (iother than its Subsidiaries) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”capital at specified levels.
(b) Prior Each agreement, contract, plan, lease, arrangement or commitment required to the date of be disclosed pursuant to this Agreement, the Company has provided complete Section is a valid and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part binding agreement of the Company or a Subsidiary, as the case may be, and is in full force and effect, and none of the Company, any of its subsidiaries Subsidiary or, to the knowledge of the Company, any other party thereto is in default or breach in any material respect under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice terms of any such material defaultagreement, event contract, plan, lease, arrangement or condition. To the knowledge of the Companycommitment, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effectno event or circumstance has occurred that, enforceable in accordance with its terms in all notice or lapse of time or both, would constitute a material respects, 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 event 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 broughtdefault thereunder.
Appears in 1 contract
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as As of the date of this Agreement of:Agreement, and except as disclosed in Schedule 3.09(a) of the SBI Disclosure Schedule, neither SBI nor any of its Subsidiaries, nor any of their respective assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under the following material contracts (collectively, the “Material Contracts”):
(i) any contract that is required relating to be filed as an exhibit to a report the borrowing of money in excess of $50,000 by SBI or filing under the Securities Act any of its Subsidiaries or the Exchange Actguarantee by SBI or any of its Subsidiaries of any such obligation (other than contracts pertaining to fully-secured repurchase agreements, and trade payables, and contracts relating to borrowings or guarantees made in the ordinary course of business);
(ii) any contract containing covenants that involves annual payments or consideration from limit the Company ability of SBI or any of its subsidiaries Subsidiaries to compete in any line of more business or with any Person, or to hire or engage the services of any Person, or that involve any restriction of the geographic area in which, or method by which, SBI or any of its Subsidiaries may carry on its business (other than $1,000,000 during as may be required by Law (as defined in Section 3.05(a)) or any twelve Governmental Authority (12) month period and is not terminable by as defined in Section 5.13)), or any contract that requires it or any of its Subsidiaries to deal exclusively or on a “sole source” basis with another party to such contract with respect to the Company or its subsidiary on 90 (or fewer) days’ notice without penaltysubject matter of such contract;
(iii) any contract for, with respect to, or that contains any covenant restricting contemplates, a possible merger, consolidation, reorganization, recapitalization, joint venture, or other business combination, or asset sale or sale of equity securities not in the ability ordinary course of the Company business consistent with past practice, with respect to SBI or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic areaSubsidiaries;
(iv) any contract granting to any person (other than deemed material by SBI or SBTC for the Company continued operations of SBI and/or SBTC by Horizon or any of its subsidiaries) “most favored nation” pricing provisionsSubsidiaries after the Effective Time;
(v) any contract that provides for “exclusivity,” rights lease of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries)real property;
(vi) any contract relating lease of personal property providing for total aggregate lease payments by or to any joint ventureSBI or its Subsidiaries during the remaining term of the personal property lease agreement in excess of $30,000 or having a remaining term in excess of two (2) years, partnership, strategic alliance, or other similar agreements to than financing leases entered into in the ordinary course of business in which the Company SBI or any of its subsidiaries Subsidiaries is a partythe lessor;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”other than an extension of credit extended by SBTC that is made in the ordinary course of business to unrelated third parties and in compliance with Section 5.03) pursuant to which any indebtedness of the Company that involves total aggregate expenditures or receipts by SBI or any of its subsidiaries Subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by 50,000 during the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as remaining term of the date agreement or having a remaining term in excess of this Agreement;two (2) years, or
(viii) any each licensing agreement or other contract with or with respect to a labor unionpatents, guild trademarks, copyrights, or other employee representative (intellectual property, including any collective bargaining agreement software agreements and including agreements with current or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of controlformer employees, consultants, or that would contractors regarding the appropriation or could reasonably be expected to prevent, delay or impair the consummation nondisclosure of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company intellectual property or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”confidential information.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereofExcept as disclosed in Schedule 3.09(b) in effect as of the date SBI Disclosure Schedule, with respect to each of this Agreement.
SBI’s Material Contracts: (ci) Neither the Company nor any subsidiary of the Company each Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract full force and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or effect; (ii) neither SBI nor any of its subsidiaries orSubsidiaries is in breach or default thereunder, to the knowledge of the Company, any other party thereto under any as such Company terms or concepts are defined in each Material Contract, ; (iii) neither SBI nor has the Company or any of its subsidiaries received Subsidiaries has repudiated or waived any notice material provision of any such material default, event or condition. To the knowledge of the CompanyMaterial Contract; (iv) to SBI’s knowledge, no other party to any Company Material Contract is in material breach default; and (v) a true and complete copy of or material default under the terms or conditions of any Company Material Contract. Each Company each Material Contract is a valid and binding obligation has been previously delivered to Horizon.
(c) Except as disclosed in Schedule 3.09(c) of the Company andSBI Disclosure Schedule, to the knowledge neither SBI nor any of the Companyits Subsidiaries have entered into any interest rate swaps, is in full force caps, floors, option agreements, futures and effectforward contracts, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Lawsrisk management arrangements, now whether entered into for SBI’s own account or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies for the account of specific performance and injunctive and other forms one or more of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtits Subsidiaries or their respective customers.
Appears in 1 contract
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.11(a) of the Company Disclosure Schedules, Schedule sets forth a true, correct and complete and accurate list as of the date following Contracts to which either the Company or any of this Agreement of:its Subsidiaries is a party, to which either the Company, any of its Subsidiaries or any of their respective properties is subject, or by which the Company or any of its Subsidiaries is otherwise bound (the “Material Contracts”) (other than the Company Benefit Plans set forth on Section 3.14(a) of the Company Disclosure Schedule):
(i) all Contracts (including purchase orders submitted in the ordinary course) with suppliers under which the Company or any contract that is required to be filed as of its Subsidiaries makes payments in excess of $250,000 on an exhibit to a report or filing under the Securities Act or the Exchange Actannual basis;
(ii) all Contracts (including purchase orders) that individually involve sales by the Company or any contract of its Subsidiaries (i) in the case of graphite electrodes more than 500 metric tons on an annual basis and (ii) in the case of any other item in excess of $250,000 on an annual basis;
(iii) any agreement for the employment of any employee or with respect to the equity compensation of any employee employed by the Company or any of its Subsidiaries that involves is not terminable at-will;
(iv) any collective bargaining agreement or any other Contract with any labor union, or severance agreements, programs, policies or arrangements;
(v) all leases relating to the Leased Real Property or other leases or licenses involving any properties or assets (whether real, personal or mixed, tangible or intangible) and any sublease or assignments with respect to any of the foregoing, involving an annual commitment or payment of more than $250,000 individually by the Company and all leases relating to Owned Real Property;
(vi) all Contracts that provide for an increased payment or benefit, or accelerated vesting, upon the execution of this Agreement or the Closing or in connection with the transactions contemplated by this Agreement and the other Transaction Agreements;
(vii) all Contracts pursuant to which any Indebtedness is outstanding or may be incurred, including any loan or credit agreement, note, bond, mortgage, indenture, letter of credit, interest rate or currency hedging arrangement or other similar agreement or instrument;
(viii) all Contracts prohibiting the Company or any of its Subsidiaries from freely engaging in any business or competing anywhere in the world, including, without limitation, any material nondisclosure or confidentiality agreements;
(ix) all partnership agreements and all other Contracts providing for the sharing of any profits of the Company;
(x) any power of attorney or other similar agreement or grant of agency; and
(xi) all Contracts that individually involve annual payments to or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries Subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”250,000.
(b) Prior All Material Contracts are legal, binding and in full force and, to the date Knowledge of this Agreementthe Company, assuming the due authorization, execution and delivery by any other party thereto, are currently enforceable against the Company has provided complete and accurate copies its Subsidiaries, as applicable, and, to the Knowledge of all Company Material Contracts (including all amendmentsthe Company, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date Closing will be, if not previously terminated or expired in accordance with their respective terms, enforceable in all material respects against the other party or parties thereto in accordance with the express terms thereof, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws of this Agreement.
(c) Neither general applicability relating to or affecting creditors’ rights and to general principles of equity, except for such failures that would not, or would not reasonably be expected to, have a Material Adverse Effect on the Company nor any subsidiary Company. To the Knowledge of the Company is in material breach of or material default Company, there does not exist under the terms or conditions of any Company Material Contract and no any event of default or event or condition has occurred that constitutes, orthat, after notice or lapse of time or both, would constituteconstitute a violation, a material breach or event of default thereunder on the part of the Company or any of its subsidiaries orSubsidiaries, to the knowledge of except for such violations, breaches, defaults, events or conditions that would not have a Material Adverse Effect on the Company. No party has given written notice that it intends to terminate, cancel or fail to renew or extend any other party thereto under any such Company Material Contract, nor has the Company Contract or any of to otherwise cease or materially reduce its subsidiaries received any notice of any such material default, event or condition. To the knowledge of business with the Company.
(c) Except for such Material Contracts that have been redacted or not provided due to competitive reasons, no other party to any Company GrafTech has been supplied with a true and correct copy of each written Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtwritten summary thereof.
Appears in 1 contract
Material Contracts. (a) Except for contracts (All Contracts, including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. All such filed Contracts shall be deemed to have been made available to Parent.
(b) Other than the Contracts described in Section 3.18(a) and any Contracts, including amendments thereto, filed as an exhibit to any report of the Company filed since January 1, 2011 pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC, Section 3.18(b) of the Company Disclosure Letter sets forth a report complete list, and the Company has made available to Parent prior to the date of this Agreement true and complete copies, of each Contract to which the Company or filing any of the Company Subsidiaries is a party or by which it is bound or to which any of their respective assets are subject, as of the date of this Agreement, and no such Contract has been amended or modified in any material respect, that:
(i) relates to a partnership, joint venture or similar arrangement that is material to the Company and the Company Subsidiaries, taken as a whole;
(ii) relates to the creation, incurrence, assumption or guarantee of Indebtedness of the Company or any Company Subsidiary in an amount in excess of $50 million (except for such Indebtedness between the Company and any wholly-owned Company Subsidiaries or between wholly-owned Company Subsidiaries, guarantees by the Company of Indebtedness of any wholly-owned Company Subsidiaries and guarantees by any wholly-owned Company Subsidiaries of Indebtedness of the Company or any other wholly-owned Company Subsidiary);
(iii) is with any third person pursuant to which (A) such third person manufactures any finished product on behalf of the Company or any Company Subsidiary or (B) the Company or any Company Subsidiary paid to or received from a third party more than $25 million in the aggregate in the fiscal year ended December 31, 2013 or reasonably anticipates paying to or receiving from such third party more than $25 million in the aggregate in the fiscal year ending December 31, 2014;
(iv) is material to the relationship with a Material Customer;
(v) is a Contract with an affiliate or other person that would be required to be disclosed under the Securities Act or Item 404(a) of Regulation S-K under the Exchange Act;
(iivi) grants any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any other similar requirement in favor of rights to any person with respect to any material asset of the Company and the Company Subsidiaries, taken as a whole;
(other than vii) would materially restrict the ability of Parent or its affiliates (including the Surviving Corporation and its Subsidiaries) following the Effective Time to compete in any line of business that is material to Parent or its Subsidiaries or in any geographic territory;
(viii) imposes exclusivity obligations on the Company or any of its subsidiariesaffiliates (other than any Joint Venture) or, to knowledge of the Company, any Joint Venture;
(ix) relates to any material interest rate, derivatives or hedging transaction (including with respect to commodities) or any other material Indebtedness (other than any standard International Swaps and Derivatives Association Master Agreements entered into in the ordinary course of business, including schedules thereto and confirmations evidencing any forward, swap, future, option or other derivative entered into in the ordinary course of business on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are to be made);
(vix) relates to the acquisition or disposition of any contract relating business, capital stock or assets (whether by merger, sale of stock, sale of assets or otherwise), other than a Contract to purchase goods or services in the ordinary course of business, under which the Company or any joint venture, partnership, strategic alliance, Company Subsidiary has any outstanding contingent or other obligations that are material to the Company and the Company Subsidiaries, taken as a whole;
(xi) is a settlement or similar agreements Contract with any Governmental Entity or any other person or an order, judgment, writ, stipulation, award, injunction or decree of a Governmental Entity or arbitrator to which the Company or any Company Subsidiary, or any of its subsidiaries their respective assets or properties, is subject that is, in each case, material to the Company and the Company Subsidiaries, taken as a partywhole;
(viixii) obligates the Company or any loan agreementCompany Subsidiary to make any capital commitment or expenditure in excess of $20 million;
(xiii) is a Contract (A) pursuant to which the Company or any Company Subsidiary is granted a license or sublicense to, credit agreementor right to use or exploit (including by means of a covenant not to ▇▇▇, noterelease or immunity), debentureCompany Intellectual Property Rights that is material to the Company and the Company Subsidiaries, bondtaken as a whole, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”B) pursuant to which any indebtedness license or sublicense to, or right to use or exploit (including by means of the Company a covenant not to ▇▇▇, release or immunity), any of its subsidiaries in excess of $1,000,000 is outstanding material Intellectual Property Rights owned or may be incurred and all guarantees of or controlled by the Company or any of its subsidiaries of debt obligations of any other personCompany Subsidiary was granted to another party that is material to the Company and the Company Subsidiaries, including the respective aggregate principal amounts outstanding taken as of the date of this Agreementa whole;
(viiixiv) indemnifies or holds harmless any contract with or with respect to a labor uniondirector, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director officer or employee of the Company or any Company Subsidiary (other than the Company Charter, the Company By-laws or the certificate of its subsidiaries; andincorporation, by-laws or other organizational or governing documents of a Company Subsidiary);
(xiixv) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by obligates the Company or any Company Subsidiary to make any investment in or loan (for the avoidance of its subsidiaries doubt, other than trade receivables) to any other person in an amount greater than $25 million annually; or
(xvi) is a mortgage, pledge, security agreement, deed of material properties, assets, capital stock trust or other equity interestsContract granting a Lien, in each caseother than a Permitted Lien, involving payments in excess on any material property or asset of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries Company Subsidiary (other than any such item that relates to Indebtedness that is a party or not required to be listed by which any of them is boundSection 3.18(b)(ii)). Each such contract Contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this or Section 3.18(a) if such contract existed on the date of this Agreement3.18(b) is referred to herein in this Agreement as a “Company Material Contract.”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company Subsidiary is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutesContract, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries orand, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor no event has occurred that with notice or lapse of time or both would constitute a breach or default thereunder by the Company or any of its subsidiaries received any notice of any Company Subsidiary, where such material breach or default, event individually or conditiontogether with other such breaches or defaults, has had or would reasonably be expected to have a Company Material Adverse Effect. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract, and no event has occurred that with or without notice or lapse of time or both would constitute a breach or default thereunder by such other party, where such breach or default, individually or together with other such breaches or defaults, has had or would reasonably be expected to have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or a Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, and, to the knowledge of the Company, is in full force and effect, enforceable except (i) for such failures as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect and (ii) for such failures that result from the cancellation, termination or non-renewal of a Company Material Contract after the date hereof in accordance with its terms in all material respectsterms, 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 the Bankruptcy and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtEquity Exception.
Appears in 1 contract
Sources: Merger Agreement (Beam Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.15(a) of the Company Seller Disclosure Schedules, Schedule sets forth a complete and accurate list as of the date of this Agreement of:a complete and accurate list of the following Contracts (other than ordinary course purchase orders and invoices, Seller Benefit Plans and Transferred Company Benefit Plans) to which any of the Transferred Companies is a party or is bound, or that is related to the Business (the “Business Material Contracts”):
(i) any contract that is required to be filed as an exhibit to Contract with a report or filing under the Securities Act or the Exchange ActTop Vendor;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyContract with a Top Customer;
(iii) any contract Contract or group of Contracts with the same party (not otherwise disclosed on Section 3.15(a) of the Seller Disclosure Schedule) that contains have required or are reasonably expected to require a payment to or from one or more Transferred Company in excess of $5,000,000 over the course of the 2017 calendar year or the 2018 calendar year;
(iv) any covenant restricting Contract containing any future capital expenditure obligations of the Transferred Companies in excess of $250,000;
(v) any Contract with respect to a material joint venture or partnership between a Transferred Company and a third party;
(vi) any Contract relating to the acquisition or disposition of any business or material assets (whether by merger, sale of stock, sale of assets or otherwise) under which a Transferred Company or the Business has any material continuing obligation;
(vii) any Contract containing covenants that restrict or limit in any material respect the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or Transferred Companies to compete in any material line of business, (y) compete business or with any person Person or (z) operate in any geographic area;
(ivviii) (A) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) Contract pursuant to which any indebtedness of the Transferred Companies licenses or is otherwise permitted by a third party to use any material Intellectual Property (other than any “shrink wrap,” “commercially available software package” or “click through” license ) or (B) any Contract pursuant to which a third party licenses or is otherwise permitted by a Transferred Company or to use any material Intellectual Property owned by any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement)Transferred Companies;
(ix) any contract that requires a consent Contract relating to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation evidencing Indebtedness of the transactions contemplated hereinTransferred Companies or pursuant to which any Transferred Company has loaned money to any Person (other than an Affiliate), including the Mergerin each case in excess of $1,000,000 individually;
(x) any contract requiring Contract between any Transferred Company, on the one hand, and any director or otherwise relating to any future capital expenditures by the officer of (1) a Transferred Company or (2) any member of its subsidiaries in excess of $1,000,000 in the aggregateParent Group, on the other hand;
(xi) any contract providing Contract with any independent contractor for indemnification by the Company or any its subsidiaries provision of any officer, director or employee services to the Business at an annualized compensation in excess of the Company or any of its subsidiaries$100,000; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is Contract with a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”Top Distributor.
(b) Prior to the date A correct and complete copy of this Agreement, the Company has provided complete and accurate copies of all Company each Business Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) Contract in effect as of the date of this Agreement.
(c) Agreement has been provided to Purchaser. Each Business Material Contract is a legal, valid and binding obligation of a Transferred Company, as applicable, and, to the Knowledge of Sellers, each counterparty, and is in full force and effect. Neither the Company nor Transferred Companies nor, to the Knowledge of Sellers, any subsidiary of the Company other party thereto, is in material breach of of, or in material default under the terms or conditions of under, any Company such Business Material Contract Contract, and no event or condition has occurred that constitutes, or, after with notice or lapse of time or bothboth would constitute such a breach or default thereunder by the Transferred Companies, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge Knowledge of the CompanySellers, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtthereto.
Appears in 1 contract
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedules, 3.24 sets forth a true, complete and accurate list correct list, as of the date hereof, of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability each of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person following Contracts (other than the Company or any of its subsidiariesBenefit Arrangements) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries Subsidiaries is a party;party (each such Contract of the type required to be set forth thereon, whether or not actually set forth thereof, a “Material Contract”):
(viia) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture Collective bargaining agreement or other contract (collectivelyContract with any labor organization, “debt obligations”) pursuant to which any indebtedness union or association or Contract with a professional employer organization, or other Contract providing for co-employment of employees of the Company or any of its subsidiaries Subsidiaries, or Contract with a professional employer organization or co-employer organization or other Contract provision for co-employment of employees of the Company or its Subsidiaries;
(b) Contract that provides for a payment or benefit, accelerated vesting, upon the execution of this Agreement, the other Transaction Documents to which the Company is a party or the Closing in connection with any of the Transactions;
(c) Contract relating to Indebtedness, including the mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens) on any Asset or group of Assets of the Company or any of its Subsidiaries and issuance of any Indebtedness by the Company or its Subsidiaries in excess of $1,000,000 150,000;
(d) any Real Property Lease or Contract under which the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees the lessee of or the holder or operator of any material personal property owned by any other Person;
(e) Contract under which the Company or any of its Subsidiaries is the lessor of or permits any third Person to hold or operate any Owned Real Property, Leased Real Property or material personal property owned or controlled by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this AgreementSubsidiaries;
(viiif) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement)IP Contracts;
(ixg) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the MergerAffiliate Contracts;
(xh) Contracts involving any contract requiring or otherwise relating to any future capital expenditures by Governmental Authority other than Contracts for the Company or any sale of its subsidiaries in excess of $1,000,000 the Company’s products in the aggregateOrdinary Course;
(xii) any contract providing Contracts related to joint ventures, partnerships, relationships for indemnification by the Company joint marketing (other than co-marketed items) or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiariesjoint development with another Person; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 1 contract
Material Contracts. (a) Except for contracts Schedule 5.16(a) sets forth a true and complete list (including all amendments and modifications theretobroken out by subsection) filed as exhibits of each of the following types of Contracts to which the Company SEC Documents, Schedule 3.18(a) or any of the Company Disclosure SchedulesSubsidiaries is a party or otherwise has any current or future rights, sets forth a complete and accurate list responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is subject, in each case as of the date of this Agreement ofAgreement:
(i) (A) contains any contract exclusivity or similar provision that is required or purports to be filed as an exhibit binding on the Company or any of the Company Subsidiaries (or any Affiliate thereof) or (B) otherwise limits or restricts (or purports to a report limit or filing under restrict) the Securities Act Company or any of the Exchange ActCompany Subsidiaries (or any Affiliate thereof) from (C) engaging or competing in any line of business in any location or with any Person, (D) selling any products or services of or to any other Person or in any geographic region or (E) obtaining products or services from any Person;
(ii) includes (A) any contract that involves annual payments or consideration from “most favored nation” terms and conditions (including with respect to pricing) granted by the Company or any of its subsidiaries of more than $1,000,000 during Company Subsidiary to a Third Party, (B) any twelve (12) month period and is not terminable by arrangement whereby the Company or its subsidiary on 90 any Company Subsidiary grants any exclusive dealings, right of first refusal or right of first offer or similar right to a Third Party, or (or fewer) days’ notice without penalty;
(iiiC) any contract arrangement between the Company and a Third Party that contains limits or purports to limit in any covenant restricting respect the ability of the Company or any Company Subsidiaries to own, operate, sell, license, transfer, pledge or otherwise dispose of its subsidiaries any assets or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, incur Indebtedness or create Liens;
(yiii) compete with is a joint venture, alliance or partnership Contract or any person Contract relating to any profit sharing, capital commitment, joint development, ownership or (z) operate in any geographic areaoperation, strategic alliance or similar arrangement;
(iv) any contract granting is a loan, guarantee of Indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and the Company Subsidiaries) relating to any person Indebtedness for borrowed money in an amount in excess of $500,000 individually;
(v) is a Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and the Company Subsidiaries) with a fair value in excess of $500,000 or less than negative $500,000;
(vi) is a Contract pursuant to which a Person other than the Company or a Company Subsidiary has licensed or granted any of its subsidiariesright to the Company or a Company Subsidiary in or to any Company Intellectual Property (other than Off-the-Shelf Software, provided such Off-the-Shelf Software is not used in a Company Product) “most favored nation” pricing provisionsthat is used in a Company Product or is otherwise material to the Company or any Company Subsidiary or any services provided to the Company or any Company Subsidiary related to Intellectual Property;
(vvii) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation is (a) a Contract pursuant to which the Company or any similar requirement in favor of any person (Company Subsidiary has granted to a Person other than the Company or a Company Subsidiary an exclusive license or other similar right to Owned Intellectual Property or (b) is a material Contract pursuant to which the Company or any Company Subsidiary has granted to a Person other than the Company or a Company Subsidiary a license or other right to Owned Intellectual Property other than non-exclusive licenses granted to customers or resellers in the ordinary course of its subsidiaries)the Business;
(viviii) any contract relating to any joint ventureis an acquisition agreement, partnershipasset purchase or sale agreement, strategic alliancestock purchase or investment, merger, sale or purchase agreement or other similar agreements agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration including assumption of debt after the date of this Agreement to be in excess of $500,000, (B) any other Person has the right to acquire any assets of the Company or any of the Company Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $500,000 or (C) any other Person has the right to acquire any interests in the Company or any of the Company Subsidiaries, excluding, in the case of clauses (A) and (B), acquisitions or dispositions of supplies, inventory, merchandise or products in the ordinary course of business or of supplies, inventory, merchandise, products, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or the Company Subsidiaries;
(ix) is a settlement or similar agreement (A) with any Governmental Authority (including any corporate integrity agreement, monitoring agreement or deferred prosecution agreement) or order or consent of a Governmental Authority (including any consent decree or settlement order) to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 Subsidiaries is outstanding or may be incurred and all guarantees of or subject involving future performance by the Company or any of its subsidiaries of debt obligations of the Company Subsidiaries or (B) with any other person, including Person involving future performance or restrictions by the respective aggregate principal amounts outstanding as Company or any of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the MergerCompany Subsidiaries;
(x) any contract requiring Contract (or otherwise relating series of related Contracts) pursuant to any future capital expenditures by which the Company or any of its subsidiaries Company Subsidiary has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 500,000 in the aggregate;
(xi) any contract providing for indemnification by Contract (or series of related Contracts) that obligates the Company or any its subsidiaries of the Company Subsidiaries to make any capital commitment, loan or capital expenditure in an amount in excess of $500,000 in the aggregate after the date of this Agreement;
(xii) any customer, distributor, supplier, reseller, OEM, dealer, manufacturer’s representative, broker, sales agency, advertising agency, finder’s, manufacturing or assembly Contract that is material to the business of the Company and the Company Subsidiaries, taken as a whole;
(xiii) any Contract containing change in control provisions that would reasonably be expected to involve aggregate payments by the Company and the Company Subsidiaries in excess of (or a loss of revenues with an aggregate value in excess of) $500,000 in connection with the consummation of the Transactions;
(xiv) any Contract between the Company or any of the Company Subsidiaries, on the one hand, and any officer, director or employee Affiliate or Related Person (other than a Company Subsidiary) of the Company or any of its subsidiaries; and
the Company Subsidiaries (xii) including the Seller and any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all Related Person of the assets or otherwise) from any person or divestiture or disposition by Seller, other than the Company or and the Company Subsidiaries), on the other hand, including any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as Contract pursuant to which the Company or any of its subsidiaries is a party the Company Subsidiaries has an obligation to indemnify such officer, director or by Affiliate or Related Person, but not including any Company Plans;
(xv) any stockholders, investors rights, registration rights or similar agreement or arrangement;
(xvi) any Contract pursuant to which the Company or any of them is boundthe Company Subsidiaries has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones, or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Buyer or any of its Subsidiaries, in each case (x) which payments after the date hereof would reasonably be expected to be more than $500,000 in the twelve (12) month period following the date hereof and (y) that cannot be terminated by the Company or such Company Subsidiary without more than sixty (60) days’ notice without material payment or penalty;
(xvii) any Collective Bargaining Agreement or other material Contract with any labor union;
(xviii) any Contract (including any option agreement) to purchase or sell any interest in real property;
(xix) any Contract that contains any standstill or similar agreement pursuant to which the Company or any of the Company Subsidiaries has agreed not to acquire assets or securities of another Person other than the Company;
(xx) any Contract or group of related Contracts (excluding purchase orders in the ordinary course of business for amounts not in excess of $250,000 individually, or for any such group, $500,000 in the aggregate) for the delivery by the Company or any Company Subsidiary of products, warranties or services to customers or other Persons under which the future aggregate costs of performance (including in respect of any undelivered balance of such products, warranties or services) are reasonably expected to be in excess of $500,000;
(xxi) any Contract with any investment banker, broker, finder or similar party retained by the Company or any Company Subsidiary which contains any obligations or provides for any liabilities which may be applicable in connection with this Agreement, the Ancillary Agreements or the Transactions;
(xxii) any Real Property Lease that has aggregate annual rental payments in excess of $500,000;
(xxiii) any Contract for employment or retention of any officer or employee with an annual salary of more than $250,000;
(xxiv) any Contract (A) requiring capital expenditures after the date hereof in excess of $50,000, and/or (B) providing for indemnification, “earn-out” or other contingent payment obligations (other than any written agreements with customers and suppliers of the Company and the Company Subsidiaries entered into in the ordinary course of business that are responsive to this clause (xxiv) solely as a result of containing customary indemnification provisions in favor of such customers and suppliers);
(xxv) any Contract not otherwise described in this Section 5.16(a) requiring payments by or to the Company or any Company Subsidiary in an aggregate amount in excess of $500,000 during the 2016 calendar year or in any subsequent calendar year; and
(xxvi) any Contract to do any of the foregoing. Each such contract Contract of the type described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreementxxvi) is referred to herein as a “Company Material Contract.”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract that has not terminated or expired pursuant to its express terms is a valid and binding obligation of the Company and in full force and effect and, to the knowledge of the Company, is in full force and effectSeller’s Knowledge, enforceable against the other party or parties thereto in accordance with its terms in all material respectsterms, except that (i) as such enforcement enforceability may be subject to limited by applicable bankruptcy, insolvency, reorganization, moratorium or any other similar Laws, now or hereafter in effect, relating to Law affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Since December 31, 2014, the Company and/or the Company Subsidiaries party thereto, as applicable, and, to the Knowledge of the Seller, each other party thereto, has performed its obligations required to be performed by it in all material respects, as and when required, under each Company Material Contract. Since December 31, 2014, (i) except for breaches, violations or defaults which have not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, neither the Company nor any of the Company Subsidiaries, nor to the Seller’s Knowledge any other party to a Company Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, in any material respect, would constitute a default under the provisions of such Company Material Contract, and (ii) equitable remedies neither the Company nor any of specific performance the Company Subsidiaries has received written notice that it has breached, violated or defaulted under any Company Material Contract. True and injunctive complete copies of the Company Material Contracts and other forms of equitable relief may be subject to equitable defenses and any material amendments thereto have been made available to the discretion of the court before which any proceeding therefor may be broughtBuyer.
Appears in 1 contract
Material Contracts. (a) Except As of the date of this Agreement, except for contracts (including all amendments this Agreement and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aset forth on Section 4.21(a) of the Company Disclosure SchedulesSchedule, sets forth neither the Company nor any of its Subsidiaries is a complete and accurate list party to or bound by, as of the date of this Agreement of:
hereof, any Contract (whether written or oral) which is (i) any contract that a “material contract” (as such term is required to be filed as an exhibit to a report or filing under defined in Item 601(b)(10) of Regulation S-K of the Securities Act or the Exchange Act;
SEC), (ii) any contract that involves annual payments a loan, guarantee of indebtedness or consideration from credit agreement, note, bond, mortgage, indenture, contract, lease, license or other binding commitment (other than those between the Company and its Subsidiaries) relating to indebtedness (for the avoidance of doubt, including sale and leaseback transactions) or any other binding obligation to make payment with respect to indebtedness in an amount in excess of its subsidiaries $100,000 individually, and with respect to binding obligations other than with respect to indebtedness, in an amount in excess of more $50,000 individually on an annual basis with a term of greater than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
five years, (iii) any a contract that contains any covenant restricting which purports to materially limit the ability right of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct Subsidiaries to engage or compete in any material line of business, (y) business or to compete with any person or (z) operate in any geographic area;
location, (iv) any a contract granting that creates a partnership or Joint Venture or similar arrangement with respect to any person (other than significant portion of the business of the Company or any of its subsidiaries) “most favored nation” pricing provisions;
Subsidiaries taken as a whole, or (v) a settlement or similar agreement with any contract that provides for “exclusivity,” rights Governmental Entity or order or consent of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements a Governmental Entity to which the Company or any of its subsidiaries Subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or subject involving future performance by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect Subsidiaries which is material to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or and any of its subsidiaries in excess of $1,000,000 in the aggregate;
Subsidiaries taken as a whole (xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee all contracts of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract type described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is 4.21(a), being referred to herein as a “Company Material ContractContracts”).
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect Other than as a result of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of expiration or material default under the terms or conditions termination of any Company Material Contract in accordance with its terms, (i) assuming the validity with respect to and no binding effect on the applicable counterparty thereto, each Company Material Contract is valid and binding on the Company and any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, subject to the Bankruptcy and Equity Exception, (ii) the Company and each of its Subsidiaries has in all material respects performed all material obligations required to be performed by it to date under each Company Material Contract, and (iii) neither the Company nor any of its Subsidiaries has Knowledge of, or has received written notice of, the existence of any event or condition has occurred that which constitutes, or, after notice or lapse of time or both, would will constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto Subsidiaries or their counterparties under any such Company Material Contract. As of the date of this Agreement, nor has since January 1, 2017, neither the Company or nor any of its subsidiaries Subsidiaries has received any written notice of that any such material default, event or condition. To the knowledge of the Company, no other party counterparty to any a Company Material Contract is in material breach of has sought to terminate or material default under amend the terms or conditions of any a Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 1 contract
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule Set forth in Section 3.18(a) of the Company Disclosure Schedules, sets forth Schedule is a complete and accurate list as of the date of this Agreement of:
following contracts and agreements (i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of businessall amendments, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements modifications and supplements thereto and all side letters to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of party affecting the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viiiparty thereunder) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them its assets or properties is bound. Each such contract described in any bound that are material to the business, assets or properties of clauses the Company and its subsidiaries taken as a whole: (i) through executory employment, executory severance, material product design or development, executory personal services, material consulting, executory non-competition or material indemnification contracts (xii) of this Section 3.18(a) (and each including, any material contract entered into after to which the date of this Agreement that would have been described in Company or any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) its subsidiaries is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary party involving employees of the Company is or any of its subsidiaries), but excluding normal indemnification provisions under license or sale contracts; (ii) licensing, merchandising or distribution agreements involving the payment of more than $100,000 per year; (iii) contracts granting a right of first refusal or first negotiation involving in excess of $100,000; (iv) partnership or joint venture agreements; (v) any agreements for the acquisition, sale or lease of material breach assets or properties of the Company (by merger, purchase or material default under sale of assets or stock or otherwise) entered into since June 30, 2001 involving a payment in excess of $100,000; (vi) contracts or agreements with any Governmental Entity involving the terms payment of more than $50,000 per year; (vii) loan or conditions credit agreements, mortgages, indentures or other agreements or instruments evidencing indebtedness for borrowed money by the Company or any of its subsidiaries or any Company Material Contract and no event such agreement pursuant to which indebtedness for borrowed money may be incurred, in each case involving in excess of $100,000; (viii) agreements that purport to limit, curtail or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on restrict the part ability of the Company or any of its subsidiaries orto compete in any geographic area or line of business; (ix) assembly (packaging), to the knowledge testing, or supply agreements, in each case, involving in excess of the Company$100,000 per year; (x) agreements, written or oral, with any other party thereto under any such Company Material Contractofficers, nor has directors, stockholders of the Company or any member of its subsidiaries received any notice the immediate family of any such material defaultofficer, event director, or condition. To the knowledge stockholder of the Company; and (xi) commitments and agreements to enter into any of the foregoing (collectively, no other party to together with any such contracts entered into in accordance with Section 5.1, the "COMPANY MATERIAL CONTRACTS"). Section 3.18(a) of the Company Disclosure Schedule sets forth a list of all Company Material Contract is in material breach Contracts and the Company has heretofore made available to Parent true, correct, and complete copies of or material default under the terms or conditions of any all such Company Material Contract. Each Contracts.
(b) To the Company's knowledge, each of the Company Material Contract is a Contracts constitutes the valid and legally binding obligation of the Company andor its subsidiaries, to the knowledge of the Companyenforceable in accordance with its terms, and is in full force and effect. There is no material default under any Company Material Contract either by the Company (or its subsidiaries) or, enforceable to the Company's knowledge, by any other party thereto, and no event has occurred that with the giving of notice, the lapse of time, or both would constitute a material default thereunder by the Company (or its subsidiaries) or, to the Company's knowledge, any other party. As of the date hereof, to the Company's knowledge, no party has notified the Company in accordance with its terms in all material respectswriting that it intends to terminate or fail to extend any contract between such person and the Company within one year of the date of this Agreement, except that for any such termination or failure as would not have a Material Adverse Effect on the Company and its subsidiaries taken as a whole.
(ic) To the Company's knowledge, no party to any 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 Company Material Contract has given notice to the discretion Company of or made a claim against the Company in respect of any material breach or default thereunder by the Company or a subsidiary.
(d) Except as set forth in Section 3.18(d) of the court before which Company Disclosure Schedule, no consent of any proceeding therefor may third party is required under any Company Material Contract as a result of or in connection with, and the enforceability of any Company Material Contract will not be broughtaffected in any manner by, the execution, delivery, and performance of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 4.10(a) of the Company Seller Disclosure SchedulesLetter sets forth, sets forth a complete and accurate list as of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as Contract to which the Company or any of its subsidiaries is a party or by which any of them it is otherwise bound. Each such contract described in any of clauses :
(i) for the purchase, sale or lease (whether as lessor or lessee) of real property or any option to purchase or sell real property,
(ii) for capital expenditures or other purchase of any materials, supplies, equipment, other assets or properties, or services that requires an annual expenditure by the Company of more than Fifty Thousand Dollars ($50,000) for any project or series of related projects (or groups of related Contracts therefor),
(iii) providing for the acquisition or disposition of any assets, in each case involving more than Fifty Thousand Dollars ($50,000),
(iv) for the lease or sublease of personal property involving an annual base rental payment of more than Fifty Thousand Dollars ($50,000),
(v) related to the licensing of Third Party Intellectual Property, other than commercially available software licensed under a shrink-wrap or click-through license agreement, material to the operation of the Business as presently conducted,
(vi) relating to Indebtedness of the Company with a principal balance in excess, individually or in the aggregate, of Fifty Thousand Dollars ($50,000),
(vii) limiting the ability of the Company to engage in any line of business or compete with any Person,
(viii) between the Company and any of the Company’s Affiliates or Affiliated Persons,
(ix) with any current or former officer, manager or director of the Company that provides for any payment of cash or equity securities (other than de minimis cash payments),
(x) granting or evidencing a Lien (other than Permitted Encumbrances) on any assets owned by the Company and used in the Business,
(xi) involving a loan or advance to, or investment in, any Person, other than reasonable expense advances in the ordinary course of business,
(xii) under which any Person guarantees or guaranteed Indebtedness of this the Company,
(xiii) that by its terms (A) calls for aggregate payments or receipt by the Company under such Contract of more than Fifty Thousand Dollars ($50,000) in 2011 or which Seller or the Company reasonably anticipates will involve the payment or receipt by the Company of more than Fifty Thousand Dollars ($50,000) in 2011 and (B)(1) extends beyond June 1, 2012 or (2) cannot be terminated with less than forty-five (45) days’ notice, or
(xiv) any material Contract not made in the ordinary course of business consistent with past practice.
(b) True, correct and complete copies of each Contract required to be listed in Section 3.18(a4.10(a) (and of the Seller Disclosure Letter or each contract entered into after the date of this Agreement that would have been of the type described in any Section 4.10(a) (each, a “Material Contract”) have been, or, in the case of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on contracts entered into after the date of this AgreementAgreement of the type described in Section 4.10(a), will be, made available to Buyer. Each Material Contract is valid and binding upon the Company (and, to Seller’s Knowledge, on all other parties thereto) in accordance with its terms. Each Material Contract is referred in full force and effect and (i) there is no actual or, to herein Seller’s Knowledge, alleged breach or violation of or default by the Company under any of the Material Contracts, (ii) to Seller’s Knowledge, there is no breach, violation of or default by any other Person under any of the Material Contracts, (iii) except as a “Company set forth in Section 4.10(b) of the Seller Disclosure Letter, no breach or violation of or default of, or right of termination will occur under any Material Contract”.
(b) Prior Contract due to the date execution or delivery of this Agreement, or consummation of the transactions contemplated by this Agreement, and (iv) to Seller’s Knowledge, there exists no event, occurrence, condition or act which, with notice or lapse of time or both or the happening of any other event or condition, would constitute a breach, violation or default of, or give rise to a right of termination, modification, cancellation, foreclosure, imposition of a Lien, prepayment or acceleration under, any of the Material Contracts. None of ROC, RHC or the Company has provided complete and accurate copies of all Company Material Contracts (including all amendmentsis, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor , renegotiating any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respectsContracts, 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 the ordinary course 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 broughtbusiness.
Appears in 1 contract
Sources: Stock Purchase Agreement (Monarch Casino & Resort Inc)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(aSection 3.16(a) of the Company Disclosure Schedules, Letter sets forth a true and complete and accurate list list, as of the date of this Agreement of:
(i) any contract that is required Agreement, of each Contract to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from which the Company or any of its subsidiaries Subsidiaries is a party (other than this Agreement and the other Transaction Documents to which the Company is a party and any Company Benefit Plans) that:
(i) is a “material contract” (as such term is defined in Item 601(b)(10) of more than $1,000,000 during Regulation S-K promulgated by the SEC);
(ii) expressly imposes any twelve (12) month period and is not terminable by material restriction on the right or ability of the Company or its subsidiary on 90 (Subsidiaries to compete with any other Person or fewer) days’ notice without penaltyin any geographical area or to solicit client or customer, and, in each case, that following the Closing will materially restrict the ability of Parent or its Subsidiaries to so compete or solicit;
(iii) expressly imposes any contract material obligation on the Company or its Subsidiaries to conduct business with any third party on a preferential or exclusive basis or that contains material “most favored nation” or similar covenants and that following the Closing will impose such obligation on Parent or its Subsidiaries;
(iv) provides for Indebtedness for borrowed money (other than intercompany Indebtedness owed by the Company or any covenant restricting wholly owned Subsidiary to any other wholly owned Subsidiary, or by any wholly owned Subsidiary to the ability Company) of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete Subsidiaries having an outstanding principal amount in any material line excess of business, (y) compete with any person or (z) operate in any geographic area$5,000,000;
(ivv) grants any contract granting right of first refusal, right of first offer, right to purchase or similar right to purchase any material assets, rights or properties of the Company or its Subsidiaries;
(vi) (A) provides for the acquisition or disposition of any assets (other than acquisitions or dispositions in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any Person and (i) was entered into within the three (3) years prior to the date of this Agreement with a value in excess of $10,000,000, or (ii) which contains any outstanding material obligations, including indemnification, guarantee, “earn-out” or other contingent payment obligations, as of the date of this Agreement, or (B) under which it has advanced or loaned or is required to advance or loan to any person other Person (other than the Company or any of its subsidiarieswholly owned Subsidiaries) “most favored nation” pricing provisionsamounts in excess of $7,000,000;
(vvii) any contract that provides for “exclusivity,” rights of first refusalis a joint venture, rights of first negotiation partnership or any limited liability company agreement or other similar requirement in favor Contract relating to the formation, creation, operation, management or control of any person joint venture, partnership, limited liability company or arrangement material to the Company or its Subsidiaries or in which the Company or its Subsidiaries own more than 10% voting, economic or other membership or partnership interest;
(other than viii) is a Contract with any Significant Customer for the sale of goods or services by the Company or any of its subsidiariesSubsidiaries or is a Contract with any Significant Supplier for the purchase of services, materials, supplies or equipment by the Company or any of its Subsidiaries (other than any purchase or sale order, including any such purchase or sale order based on quoted or pre-established pricing or that is processed in the ordinary course of business through an electronic transaction or other Contract, in each case, that is not material to the Company and its Subsidiaries, taken as a whole);
(viix) any contract relating to any joint ventureis a Contract that is a settlement, partnership, strategic alliance, conciliation or other similar agreements agreement pursuant to which the Company or any of its subsidiaries is a party;
(vii) Subsidiaries are obligated after the date of this Agreement to pay consideration in excess of $7,500,000 or has any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture material ongoing obligations or other contract (collectively, “debt obligations”) pursuant to which any indebtedness that would otherwise materially limit the operation of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other personSubsidiaries, including the respective aggregate principal amounts outstanding taken as of the date of this Agreement;
(viii) any contract with or with respect to a labor unionwhole, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Mergeras currently operated;
(x) any contract requiring is a Contract containing a put, call or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as similar right pursuant to which the Company or any of its subsidiaries 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 $5,000,000;
(xi) is a party Contract evidencing financial or by commodity hedging or similar trading activities, including any interest rate swaps, financial derivatives master agreements or confirmations, or futures account opening agreements and/or brokerage statements to which the Company or any of them its Subsidiaries is bounda party;
(xii) any Government Contract that is material to the conduct of the business of the Company and its Subsidiaries, taken as a whole;
(xiii) grants a third Person a license to Company Intellectual Property, which grant of rights is material to the business of the Company and its Subsidiaries, excluding any Contracts containing (y) a license exclusive only within a reasonably limited field or jurisdiction entered into in the ordinary course of business (A) in connection with the sale or distribution of any product or service of the Company or its Subsidiaries or (B) to facilitate the provision of products or services for or on behalf of the Company or its Subsidiaries or (z) a non-exclusive license entered into (A) in the ordinary course of business, (B) in connection with the sale or distribution of any product or service of the Company or its Subsidiaries, or (C) to facilitate the provision of products or services for or on behalf of the Company or its Subsidiaries; or
(xiv) is with an Affiliate or other Person that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated by the SEC. Each such contract described All contracts of the types referred to in any of clauses (i) through (xiixiv) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in above, excluding any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is Company Benefit Plans, are referred to herein as a “Company Material ContractContracts.”.
(b) Prior to As of the date of this Agreementhereof, the Company has provided made available to Parent true, correct and complete and accurate copies of all each Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as Contract. As of the date of this Agreement.
(c) Neither the Company nor any subsidiary hereof, none of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutesCompany, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries Subsidiaries or, to the knowledge of the Company’s knowledge, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default in any respect under the terms or conditions of any Company Material Contract, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each Company Material Contract (i) is in full force and effect, subject to the Enforceability Exceptions and (ii) to the knowledge of the Company, is a valid and binding obligation of the Company andor the Subsidiary of the Company that is party thereto and each of the other parties thereto, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no disputes pending, or to the knowledge Company’s knowledge, threatened (in writing), with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the Companyintention of any other party to a Company Material Contract to terminate for default, is convenience or otherwise any Company Material Contract, in full force and effecteach case except as would not reasonably be expected to have, enforceable individually or in accordance with its terms in all material respectsthe aggregate, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughta Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Barnes Group Inc)
Material Contracts. (a) Except for contracts (including For all amendments purposes of and modifications thereto) filed as exhibits to the Company SEC Documentsunder this Agreement, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement of“Material Contract” means any oral or written:
(i) any contract that “material contract” (as such term is required to be filed as an exhibit to a report or filing defined in Item 601(b)(10) of Regulation S-K under the Securities Act or the Exchange Act, other than those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to the Company and the Subsidiaries, taken as whole;
(ii) any employment or consulting contract that involves annual payments or consideration from (in each case, under which the Company or any Subsidiary has continuing obligations as of its subsidiaries the date hereof) with any current or former executive officer or other employee of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (the Subsidiaries or fewer) days’ notice without penaltymember of the Company Board providing for an annual base salary in excess of $150,000;
(iii) Benefit Plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the consummation of the Transactions or the value of any of the benefits of which will be calculated on the basis of any of the Transactions;
(iv) contract that contains any covenant restricting the ability severance or termination pay liabilities of the Company or any Subsidiary related to termination of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisionsemployment;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries the Subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; andthe Subsidiaries;
(xiivi) contract containing any covenant (A) limiting the right of the Company or any Subsidiary to engage in any line of business or to compete with any Person in any line of business or in any geographic location, or (B) prohibiting the Company or any Subsidiary from engaging in business with any Person or levying a fine, charge or other payment for doing so;
(vii) contract entered into after January 1, 2007 or that has not yet been consummated (A) relating to any the disposition or acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any Subsidiary after the date of its subsidiaries to any person this Agreement of a material propertiesamount of assets other than in the ordinary course of business, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as (B) pursuant to which the Company or any Subsidiary will acquire any material ownership interest in any other Person or other business enterprise other than the Subsidiaries;
(viii) mortgages, indentures, guarantees for borrowed money, loans or credit agreements, security agreements or other contracts relating to the borrowing of its subsidiaries money or extension of credit (whether incurred, assumed, guaranteed or secured by any asset), other than (A) accounts receivables and payables, and (B) loans to direct or indirect wholly owned Subsidiaries, in each case in the ordinary course of business consistent with past practice;
(ix) contract pursuant to which the Company or any Subsidiary has continuing “earn-out” or other contingent payment obligations;
(x) contract to which the Company or any Subsidiary is a party that (A) contains most favored customer pricing provisions or (B) grants any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any Person;
(xi) contract to which the Company or any Subsidiary is a party that relates to product supply, manufacturing, distribution or development (except for any contracts in which either the annual aggregate noncontingent payments to or by which any the Company are not in excess of them is bound. Each such contract described in any of clauses (i) through $250,000 or the annual potential payments to or by the Company are not expected to exceed $250,000);
(xii) contract pursuant to which the Company or any Subsidiary has any obligations or liabilities (whether absolute, accrued, contingent or otherwise) as guarantor, surety, co-signer, endorser, co-maker, or otherwise in respect of this Section 3.18(aany obligation of any other Person, or any capital maintenance, keep-well or similar agreements or arrangements, in each case individually in excess of $250,000;
(xiii) contract that involves any joint venture, partnership or similar arrangement of the Company or any Subsidiary;
(xiv) material agreement with respect to intellectual property; or
(xv) contract that contains “standstill” or similar provisions to which the Company or any Subsidiary is subject and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”restricted.
(b) Prior to the date Section 3.16(b) of this Agreement, the Company has provided Disclosure Schedule contains a complete and accurate copies list of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes any amendments thereto) to or other documents modifying by which the Company or supplementing the terms thereofany Subsidiary is a party or is bound. Complete and correct copies of each Material Contract (including any amendments thereto) in effect existence as of the date of this Agreementhereof have been delivered or made available by the Company to Parent and Merger Sub prior to the date hereof.
(c) Neither Except as set forth in Section 3.16(c) of the Company Disclosure Schedule and except as would not have a Material Adverse Effect, all of the Material Contracts are valid and binding on the Company (and/or each Subsidiary party thereto) and are in full force and effect, and neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutesSubsidiary party thereto, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries ornor, to the knowledge Knowledge of the Company, any other party thereto under thereto, is in breach of, or default under, any such Company Material Contract, nor and no event has occurred that with notice or lapse of time or both would reasonably be expected to (i) constitute such a breach or default thereunder by the Company or any of its subsidiaries received any notice of any such material defaultSubsidiary party thereto, event or condition. To or, to the knowledge Knowledge of the Company, no any other party to any Company Material Contract is in material breach of thereto; or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, 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 give any Person the right to declare a default, accelerate the maturity or performance 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 broughtMaterial Contract, or cancel, terminate or modify any Material Contract.
Appears in 1 contract
Material Contracts. (a) Except for contracts Schedules 2.16(a)(i) through (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(axix) of the Company Disclosure Schedules, sets Schedule set forth a complete and accurate list as of each of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person following Contracts (other than the any Company or any of its subsidiariesEmployee Plan) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries Subsidiaries is a partyparty that are in effect on the Agreement Date (collectively, the “Material Contracts”):
(i) any Contract with a Significant Supplier;
(viiii) any loan agreementContract with a retail customer not substantially on the form of the membership terms and terms of services provided to Parent;
(iii) any Contract providing for payments by or to the Company or any of its Subsidiaries (or under which the Company or any of its Subsidiaries has made or received such payments) in the period since January 1, credit agreement2022 in an aggregate amount of USD 400,000 or more;
(iv) (A) any joint venture, notestrategic alliance or partnership Contract, debenture(B) any Contract that involves a material sharing of revenues, bondprofits, mortgagecash flows, guaranteeexpenses or losses with other Persons and (C) any Contract that involves the payment by the Company or any of its Subsidiaries of material royalties to any other Person;
(v) any Contract with (A) any director or officer, indenture or other contract (collectivelyB) any of the Company’s or any of the Company’s Subsidiaries’ officers, “debt obligations”employees, consultants or Company Shareholders of more than 5% of the Company Shares, as the case may be, except for any Company Employee Plans and documents pursuant to which any Company Shares were acquired;
(vi) any Contract (A) pursuant to which any indebtedness other party is granted exclusive rights or “most favored party” rights of any type or scope with respect to any of the Company Products, Company-Owned Intellectual Property or Company-Owned Data; (B) containing any non-competition covenants or other restrictions relating to the Company Products, Company-Owned Intellectual Property or Company-Owned Data; (C) that limits or would limit the freedom of the Company or any of its subsidiaries Subsidiaries or any of their respective successors or assigns or their respective Affiliates to engage or participate, or compete with any other Person, in excess any line of $1,000,000 is outstanding business, market or may be incurred and all guarantees geographic area with respect to the Company Products or the Company-Owned Intellectual Property, or to make use of or any Company-Owned Intellectual Property, including any grants by the Company or its Subsidiary of exclusive rights or licenses; (D) containing any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as “take or pay,” minimum commitments or similar provisions; or (E) that is set forth on Schedule 2.16(a)(vi) of the date of this AgreementCompany Disclosure Schedule;
(viiivii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as Contract pursuant to which the Company or any of its subsidiaries is Subsidiaries receives from any third party a party license to any Intellectual Property material to the Business, and any settlement, co-existence, covenant not to sue, or similar agreements entered into by which the Company or any of them is bound. Each its Subsidiaries in connection with the resolution of a dispute related to Intellectual Property, in each case other than (A) non-exclusive licenses granted in the ordinary course of business or that are incidental to the Contracts in which such contract described licenses are granted, (B) non-disclosure agreements entered into in the ordinary course of Business or with any prospective acquirer of any Company Shares, and (C) licenses for Open Source Materials on standard terms;
(viii) any Contract pursuant to which the Company or any of clauses its Subsidiaries grants to any third party a license to any Company-Owned Intellectual Property, other than (iA) through non-exclusive licenses granted in the ordinary course of business or that are incidental to the Contracts in which such licenses are granted; (xiiB) non-disclosure agreements entered into in the ordinary course of Business or with any prospective acquirer of any Company Shares and (C) if the relevant license is entered into with multiple parties on materially the same standard form terms, the provision of the copy of such standard form terms will satisfy the obligation for disclosure for the purposes of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.2.16(a)(viii);
(bix) Prior any Contracts relating to the date of this Agreementmembership of, or participation by, the Company has provided complete and accurate copies or any of all Company Material Contracts (including all amendmentsits Subsidiaries in, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part affiliation of the Company or any of its subsidiaries orSubsidiaries with, any industry standards group or association;
(x) any settlement agreement with respect to any Legal Proceeding;
(xi) any Contract with any labor union or any collective bargaining agreement or similar contract;
(xii) any trust indenture, mortgage, promissory note, loan agreement or other Contract for the knowledge borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the Company, type required to be capitalized in accordance with the Accounting Principles and involving an aggregate amount in excess of USD $500,000;
(xiii) any other party thereto under any such Company Material Contract, nor has Contract pursuant to which the Company or any of its subsidiaries received Subsidiaries (on its own behalf or on behalf of its customers) has lent Cryptocurrency to any notice Person, including the amount and type of Cryptocurrency lent to each such Person and the Cryptocurrency of each such loan (including principal and interest);
(xiv) any Contract with any third-party custodian of Cryptocurrency;
(xv) any Contract with any provider of staking services;
(xvi) any Contract with any Cryptocurrency exchanges, brokers, suppliers or transaction counterparties or any other person from whom the Company or any of its Subsidiaries sources Cryptocurrency (other than the Company’s retail customers);
(xvii) any Contract pursuant to which the Company or any of its Subsidiaries is a lessor or lessee of any such material defaultreal property;
(xviii) any Contract pursuant to which the Company or any of its Subsidiaries has acquired a business or entity, event or condition. To the knowledge all or substantially all of the Companyassets of a business or entity, no other party to whether by way of merger, consolidation, purchase of shares, purchase of assets, exclusive license or otherwise; and
(xix) any Company Contract with any Governmental Entity (each a “Government Contract”).
(b) All Material Contract is Contracts are in material breach of or material default under the terms or conditions of any Company Material Contractwritten form. Each Company Material Contract is a valid and binding obligation of the Company and its Subsidiaries has performed all of the obligations required to be performed by it in all material respects and is entitled to all benefits under, and, to the knowledge of the Company, is not alleged to be in default in respect of, any Material Contract. Each of the Material Contracts is in full force and effect and binding on the parties to it, subject only to the effect, enforceable in accordance if any, of applicable bankruptcy and other similar Applicable Law affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies. There exists no default or event of default or event, occurrence, condition or act, with respect to either the Company or its terms in all material respectsSubsidiaries or to the knowledge of the Company, except that with respect to any other contracting party, that, with the giving of notice, the lapse of time or the happening of any other event or condition, would reasonably be expected to (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium become a default or other similar Laws, now event of default under any Material Contract or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies 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 delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of specific performance and injunctive and other forms any obligation of equitable relief may be subject the Company or its Subsidiaries under any Material Contract or (D) the right to equitable defenses and cancel, terminate or modify any Material Contract. Neither the Company nor any of its Subsidiaries has received any written notice or, to the discretion knowledge of the court before which Company, other communication regarding any proceeding therefor may actual or possible violation or breach of, default under, or intention to cancel, or modify any Material Contract, except as would not be broughtmaterial to the operation of the Company and its Subsidiaries as a whole. There are no pending, threatened in writing or, to the knowledge of the Company, otherwise threatened material disputes in relation to any Material Contract. Neither the Company nor any of its Subsidiaries has any Liability for renegotiation of Government Contracts. True, correct and complete copies of all Material Contracts have been provided to Parent at least three (3) Business Days prior to the Agreement Date.
Appears in 1 contract
Material Contracts. (a) Except Schedule 3.11(a) sets forth the following agreements, contracts, plans, leases, arrangements or commitments:
(i) any agreement providing for contracts the delivery by the Company or any Subsidiary of specialty healthcare services (including all amendments the "Customer Contracts");
(ii) any agreement, other than Customer Contracts, Provider Contracts and modifications thereto) filed License Contracts (as exhibits defined below), for the purchase or sale of goods, services, equipment or other assets providing for annual payments by or to the Company SEC Documentsor any Subsidiary of $20,000 or more, Schedule 3.18(aother than any such agreements that are terminable by the Company or such Subsidiary at will on thirty (30) or fewer days' notice without any premium, penalty or other similar payment in excess of $10,000 becoming payable by the Company or such Subsidiary by virtue of such termination;
(iii) any lease for real or personal property in which the amount of payments which the Company or any Subsidiary of the Company Disclosure Schedulesis required to make on an annual basis exceeds $20,000;
(iv) any partnership, sets joint venture or other similar contract, arrangement or agreement to which the Company or any Subsidiary is a party or is bound;
(v) any contract relating to indebtedness or guarantees or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset) to which the Company or any Subsidiary is a party or is bound;
(vi) any contract or cost allocation arrangement relating to outstanding indebtedness, liabilities or obligations for amounts owing to, or notes or accounts receivable from, or leases, contracts or other commitments or arrangements with or for the benefit of, the Seller or any of its Subsidiaries, other than any such unwritten contracts, leases, commitments or arrangements which will be terminated on or prior to the Closing Date without giving rise to any further obligations on the part of the Company or such Subsidiary;
(vii) any contract relating to the acquisition or disposition of any business or material asset (whether by merger, sale of stock, sale of assets or otherwise), where the transactions contemplated thereby have not been consummated as of the date hereof to which the Company or any Subsidiary is a party or is bound;
(viii) any contract or other agreement that by its terms limits the right of the Company or any Subsidiary to compete (A) in any line of business, (B) with any Person or (C) in any geographic area or which would so limit the right of the Company or any Subsidiary after the Closing Date;
(ix) any contract or other agreement relating to any Intellectual Property Rights used by the Company or any Subsidiary, which contract or other agreement provides for annual license payments in excess of $20,000 (the "License Contracts"); and
(x) any other contract or commitment that is material to the Company and its Subsidiaries taken as a whole.
(b) Except as set forth in Schedule 3.11(b), each Contract is a complete valid and accurate list binding agreement of the Company or a Subsidiary enforceable in accordance with its terms, subject to (i) bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization and other similar laws affecting creditors' rights generally and the rights of creditors of insurance companies generally and (ii) general principles of equity (regardless of whether considered in a proceeding at law or in equity), and as of the date of this Agreement of:
(i) is in full force and effect, and neither the Company, any contract that is required Subsidiary nor, to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability knowledge of the Company or Seller, any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete other party thereto is in default in any material line respect under the terms of business, (y) compete with any person or (z) operate in any geographic area;such Contract. Seller has made available to the Purchaser a true and correct copy of each Contract.
(ivc) any contract granting Except as set forth in Schedule 3.11(c), to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness knowledge of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding Seller as of the date of this Agreement;
(viii) , no third party to any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating Contracts intends to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes terminate or other documents modifying or supplementing amend the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of thereof or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, 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 refuse to renew same upon expiration 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 broughtits current term.
Appears in 1 contract
Sources: Stock Purchase Agreement (Magellan Health Services Inc)
Material Contracts. Schedule 2.16 of the Disclosure Schedule sets forth (each a “Material Contract”):
(a) Except Each agreement for contracts (including all amendments the lease of real property and modifications thereto) filed as exhibits to each agreement for the Company SEC Documents, Schedule 3.18(a) lease of the Company Disclosure Schedules, sets forth a complete and accurate list as personal property that provides for annual rental payments by Clairnet of the date of this Agreement of:
(i) any contract that is required to be filed as an exhibit to a report $5,000 or filing under the Securities Act or the Exchange Actmore;
(iib) Each agreement pursuant to which Clairnet has borrowed or is committed or entitled to borrow money; has lent or committed to lend money; and has given or is committed to give a guarantee of, or otherwise to incur primary or secondary liability for (including any contract that involves annual payments or consideration from the Company or letter of credit), any obligation of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penaltyother party in any amount;
(iiic) any contract Each agreement that contains any a covenant restricting the ability of the Company not to compete or other similar material restriction on Clairnet or any of its subsidiaries or affiliates Clairnet Security Holder (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic area;
(iv) any contract granting to any person (other than the Company or any of its subsidiaries) “most favored nation” pricing excluding ordinary course confidentiality provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vid) Each (i) agreement between Clairnet and any contract relating to Clairnet Security Holder or director or officer of Clairnet; (ii) agreement between Clairnet and any joint ventureformer director, partnership, strategic alliance, officer or other similar agreements to which the Company or any equity holder of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries Clairnet that contains provisions that are in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of effect on the date of this Agreement; (iii) employment agreement between Clairnet and any employee that precludes Clairnet from terminating such employee’s employment “at will” or requires the payment of any severance compensation upon termination of employment; and (iv) agreement between an employee of Clairnet and any other person that restricts the right of such employee to compete with such person, to solicit for hire or hire an employee or former employee of such person, or solicit a customer or supplier of such person;
(viiie) Each agreement that provides to any contract with person any preferential right to purchase any of the assets, properties or with respect rights of Clairnet, or which requires the consent of any third party to a labor unionthe transfer of any assets, guild properties or other employee representative (including any collective bargaining agreement or works council agreement)rights of Clairnet;
(ixf) Each agreement pursuant to which Clairnet has purchased or licensed from any contract that requires a consent person or licensed to or otherwise contains a provision relating to a change of controlany person, or that would or could reasonably be expected to prevent, delay or impair the consummation any of the transactions contemplated herein, including Intellectual Property material to the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any business of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiariesClairnet; and
(xiig) any contract relating Each agreement (or group of related agreements) not identified pursuant to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets foregoing subsections that is to be performed in whole or otherwise) from any person in part at or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses and which (i) through (xii) cannot be canceled upon 60 days’ notice without payment or penalty of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, 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 more than $10,000; (ii) equitable remedies involves aggregate future payments by or to Clairnet of specific performance and injunctive and more than $10,000 other forms than for the sale of equitable relief may goods or services in the ordinary course of business; or (iii) involves material nonmonetary obligations to be subject to equitable defenses and to performed later than one year from the discretion of the court before which any proceeding therefor may be broughtdate hereof.
Appears in 1 contract
Material Contracts. (a) Except for contracts (including all amendments and modifications theretoSchedule 3.11(a) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) lists each of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement of:
(i) any contract that is required following Contracts to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from which the Company or any of its subsidiaries of more than $1,000,000 during Subsidiaries is a party (such Contracts being referred to as the “Material Contracts”):
(i) all Company Contracts for or relating to any twelve Debt;
(12ii) month period and is not terminable by the all Company or its subsidiary on 90 (or fewer) days’ notice without penaltyContracts granting any Person a Lien;
(iii) all Company Contracts providing for the grant of any contract preferential rights to purchase or lease any of the assets of the Company or any of its Subsidiaries;
(iv) all Company Contracts that contains are leases for real property;
(v) all Company Contracts to which the Company or any covenant of its Subsidiaries is a party providing for aggregate annual payments to or by the Company or any Subsidiary (contingent or otherwise, including milestones, earn-outs, contingent payments and other future payment obligations) in excess of $2,000,000, other than purchase orders issued or received in the Ordinary Course of Business;
(vi) all Company Contracts (A) containing non-competition, non-solicitation or other limitations restricting the conduct of the business of the Company or any of its Subsidiaries, or the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) Subsidiaries to compete with any person Person or to solicit the employees or customers of any Person, (B) that grants to the other party or any third party “most favored nation” status or (zC) operate that grants to the other party or any third party any exclusive right or rights or in which any geographic area;
(iv) any contract granting to any person (other than third party grants the Company or any of its subsidiaries) “most favored nation” pricing provisionsSubsidiaries any exclusive right or rights;
(vvii) any contract that provides all Company Contracts for “exclusivity,” rights indemnification outside the Ordinary Course of first refusal, rights Business;
(viii) all written employment or consulting agreements providing for either (A) annual salaries equal to or greater than $50,000 or (B) severance benefits not required by applicable Law equal to or greater than $50,000;
(ix) all stockholder agreements to the extent not terminated at Closing;
(x) all Company Contracts with officers and directors of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries)Subsidiaries and Company Stockholders, or any of their Affiliates, to the extent not terminated at Closing;
(vixi) any contract relating to any joint venture, all partnership, strategic alliance, or other joint venture and similar agreements Contracts to which the Company or any of its subsidiaries Subsidiaries is a party;
(viixii) all Company Contracts relating to the acquisition or disposition of any loan agreementbusiness since July 19, credit agreement, note, debenture, bond, mortgage, guarantee, indenture 2011;
(xiii) all Contracts restricting dividends or other contract (collectively, “debt obligations”) pursuant to which any indebtedness distributions in respect of the capital stock or other equity interests of the Company or any of its subsidiaries Subsidiaries; and
(xiv) all Contracts under which the Company or any of its Subsidiaries has been granted a license to any Intellectual Property Rights or under which the Company or any of its Subsidiaries has granted a license to any Company Intellectual Property, other than (A) nonexclusive Contracts for Intellectual Property Rights with respect to commercially-available technology; (B) Contracts with employees or individual independent contractors for the assignment of, or license to, Intellectual Property Rights entered in excess to in the Ordinary Course of $1,000,000 is outstanding Business; (C) confidentiality or may be incurred nondisclosure Contracts entered into in the Ordinary Course of Business; (D) Contracts for the purchase or use of generally commercially available equipment or materials; (E) Contracts that are ancillary to the purchase or use of equipment or materials (e.g., support and all guarantees of or maintenance contracts); and (F) Contracts involving payments by the Company or any of its subsidiaries Subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of less than $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”per year.
(b) Prior The Company has made available true and complete copies of each Contract disclosed on Schedule 3.11(a). With respect to the date Material Contracts: (i) all of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) are in full force and effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default are valid and binding on the part of and enforceable against the Company or any of its subsidiaries orSubsidiaries, as applicable, in accordance with their terms and, to the knowledge Knowledge of the Company, any on and against the other party parties thereto under any (except where such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement enforceability may be subject limited by applicable laws relating to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, legal requirement relating to or affecting creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding equity or at law)); (ii) equitable remedies none of specific performance and injunctive and other forms the Company or any Subsidiary of equitable relief may be subject to equitable defenses and the Company, or to the discretion Knowledge of the court before which Company, any proceeding therefor may be broughtother party to any Material Contract, is in breach of, or default under, any Material Contract; (iii) neither the Company nor any of its Subsidiaries has waived any right under any Material Contract; (iv) no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a material breach of, or material default under, any Material Contract; (v) to the Knowledge of the Company, there are no unresolved disputes under any of the Material Contracts that are reasonably likely to result in either (x) a material reduction in price or volume under such Material Contract or (y) cancellation of such Material Contract; and (vi) neither the Company nor any of its Subsidiaries has given to or received from any other Person, any written notice or other written communication regarding any actual, alleged, possible or potential material violation or material breach or, or default under, any Material Contract.
Appears in 1 contract
Sources: Securities Purchase Agreement (Dynacast International Inc.)
Material Contracts. (a) Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) Section 4.9 of the Company Disclosure Schedules, sets forth Schedule contains a complete and accurate list as of each of the date of this Agreement offollowing Contracts (other than the Leases) to which PinnOak or a Subsidiary is a party:
(i) any contract that is required to be filed as an exhibit to all Contracts (other than the Plans) providing for a report commitment of employment or filing under the Securities Act or the Exchange Actconsultation services;
(ii) all Contracts with any contract that involves annual payments Person containing any provision or consideration from covenant prohibiting or limiting the Company ability of PinnOak or a Subsidiary to engage in any business activity or compete with any Person or prohibiting or limiting the ability of its subsidiaries of more any Person to compete with PinnOak or a Subsidiary (other than $1,000,000 during any twelve (12) month period and is not terminable by the Company restrictions on other parties pursuant to agreements pertaining to business combinations or its subsidiary on 90 (or fewer) days’ notice without penaltyacquisitions);
(iii) any contract that contains any covenant restricting the ability of the Company all partnership, joint venture, shareholders’ or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete other similar Contracts with any person or (z) operate in any geographic areaPerson;
(iv) any contract granting all Contracts relating to any person Indebtedness of PinnOak or a Subsidiary in excess of $500,000 (other than the Company Indebtedness owing to PinnOak or any of its subsidiaries) “most favored nation” pricing provisionsa Subsidiary and Indebtedness to be extinguished or otherwise satisfied at Closing);
(v) all Contracts granting any contract that provides for “exclusivity,” rights right of first refusal, rights refusal or right of first negotiation offer or similar right or that materially limit or purport to materially limit the ability of PinnOak or any similar requirement in favor Subsidiary to own, operate, sell, transfer, pledge or otherwise dispose of any person (other than the Company properties or any assets of its subsidiaries)business;
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which all material Contracts providing for the Company indemnification by PinnOak or any Subsidiary of any Person in connection with its subsidiaries is a partybusiness;
(vii) all Contracts providing for any loan agreementpayments by PinnOak or any Subsidiary that are conditioned, credit agreementin whole or in part, note, debenture, bond, mortgage, guarantee, indenture on a change of control of PinnOak or other contract (collectively, “debt obligations”) pursuant to which any indebtedness transactions of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreementtype contemplated hereby;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating to a change of controlemployment agreement with, or any agreement or arrangement that would contains any guaranteed compensation, equity commitments, commission or could reasonably be expected other production bonuses, severance pay or post-employment liabilities or obligations (other than as required by Law) to preventany current or former employees, delay non-employee directors or impair the consummation of the transactions contemplated herein, including the Mergerofficers or other Persons that have performed or are performing consulting or other independent contractor services for PinnOak or any Subsidiary;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;Contract with an Interested Party; and
(xi) any contract providing for indemnification by all other Contracts (other than the Company or any its subsidiaries Plans) that require the payment pursuant to the terms of any officer, director such Contract by or employee to PinnOak or a Subsidiary of the Company more than $500,000 annually or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is on a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”one-time basis.
(b) Prior Each Contract required to be disclosed in Section 4.9 of the Disclosure Schedule is in full force and effect and constitutes a legal, valid and binding agreement, enforceable, in all material respects, in accordance with its terms, of PinnOak or the applicable Subsidiary and, to the date Knowledge of this AgreementPinnOak, of each other party thereto other than Contracts that have expired by their terms. Neither PinnOak or the Company has provided complete and accurate copies applicable Subsidiary nor, to the Knowledge of all Company Material Contracts (including all amendmentsPinnOak, modifications, supplements, exhibits, schedules, annexes or any other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company party to such Contract is in material violation or breach of or material default under the terms any such Contract (or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after with notice or lapse of time or both, would constitutebe in violation or breach of or default under any such Contract), the effect of which would have a material default on the part Material Adverse Effect. Section 4.10 Real Property.
(a) Section 4.10(a) of the Company Disclosure Schedule contains a true and complete list of all of the leases, licenses, subleases and all other similar occupancy agreements, including all amendments or other modifications thereto (collectively, the “Leases”), pursuant to which PinnOak or any of its subsidiaries orthe Subsidiaries leases, to licenses, subleases or otherwise occupies real property (such real property, collectively, the knowledge of “Leased Real Property”). The Leased Real Property is the Companyonly real property leased, any other party thereto under any such Company Material Contractsubleased, nor has the Company licensed or otherwise occupied by PinnOak or any of its subsidiaries received the Subsidiaries that is used or useful in connection with the business of PinnOak, other than the Owned Real Property (as defined below) and any notice real property occupied or otherwise used by PinnOak or any of the Subsidiaries pursuant to appurtenant easements and similar rights that constitute Permitted Liens. Except as would not have a Material Adverse Effect: (i) PinnOak (or the applicable Subsidiary) has a good and valid leasehold interest in all of the Leased Real Property, free and clear of any such material defaultLiens (other than Permitted Liens), event or condition. To (ii) the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, is Leases are in full force and effect, enforceable (iii) neither PinnOak (or the applicable Subsidiary) nor, to the Knowledge of PinnOak, any other party to any Lease, is in accordance material default under the Leases, and (iv) to the Knowledge of PinnOak, no event has occurred which, with notice or lapse of time, would constitute a material breach or default by PinnOak (or such Subsidiary) or any other party to any Lease under any of the Leases. PinnOak has made available to Purchaser or its terms Representatives prior to the date hereof copies of the Leases and all certificates of occupancy, title reports, title insurance policies, surveys and similar documents with respect to the Leased Real Property that are in the possession of PinnOak or any of the Subsidiaries and the copies of the Leases made available by PinnOak are true, correct and complete in all material respects. Neither the use of the Leased Real Property by PinnOak or the applicable Subsidiary nor, to the Knowledge of PinnOak, the Leased Real Property itself contravenes or violates any building, zoning, administrative, occupational safety and health or other applicable Law in any material respect, except for such contraventions or violations as would not have a Material Adverse Effect.
(b) Section 4.10(b) of the Disclosure Schedule contains a true and complete list of all real property owned by PinnOak or any of the Subsidiaries (the “Owned Real Property”). Except as set forth on Section 4.10(b) of the Disclosure Schedule, reasonable access to that portion the Owned Real Property on which PinnOak or any of the Subsidiaries are currently conducting mining, processing or reclamation operations is available through publicly dedicated streets or a validly existing easement, which access is consistent with past practice. Except as would not have a Material Adverse Effect, PinnOak (ior the applicable Subsidiary) such enforcement may be subject has a good and valid title to applicable bankruptcyall of the Owned Real Property, insolvencyfree and clear of any Liens (other than Permitted Liens). None of the Owned Real Property, reorganizationor the use thereof, moratorium contravenes or violates any building, zoning, administrative, occupational safety and health or other similar Lawsapplicable Law in any material respect, now except for such contraventions or hereafter in effect, relating violations as would not have a Material Adverse Effect. PinnOak has made available 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 Purchaser or its Representatives prior to the discretion execution of this Agreement copies of all deeds, leases, mortgages, deeds of trust, certificates of occupancy, title insurance policies (including the court before which any proceeding therefor may be brought.Existing Title
Appears in 1 contract
Material Contracts. Except as otherwise reflected in the Target Financial Statements, none of the Target Entities, nor any of their respective Assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, (a) Except any employment, severance, termination, consulting, or retirement Contract providing for contracts aggregate payments to any Person in any calendar year in excess of $75,000, (including all amendments and modifications theretob) filed as exhibits any Contract relating to the Company SEC Documentsborrowing of money by any Target Entity or the guarantee by any Target Entity of any such obligation (other than Contracts evidencing deposit liabilities, Schedule 3.18(apurchases of federal funds, fully-secured repurchase agreements, and Federal Home Loan Bank advances of depository institution Subsidiaries, and trade payables) in excess of $50,000, (c) any Contract which prohibits or restricts any Target Entity (and/or, following consummation of the Company Disclosure Schedulestransactions contemplated by this Agreement, sets forth a complete and accurate list as of the date of this Agreement of:
(iBuyer) any contract that is required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from the Company or any of its subsidiaries of more than $1,000,000 during any twelve (12) month period and is not terminable by the Company or its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any contract that contains any covenant restricting the ability of the Company or any of its subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete engaging in any material line of business, (y) compete with any person or (z) operate business activities in any geographic area;
, line of business or otherwise in competition with any other Person, (ivd) any contract granting Contract between or among Target Entities, (e) any Contract relating to the purchase or sale of any goods or services by a Target Entity (other than Contracts entered into in the Ordinary Course and involving payments under any individual Contract not in excess of $125,000 or involving Loans, borrowings or guarantees originated or purchased by any Target Entity in the Ordinary Course), (f) any Contract which obligates any Target Entity to conduct business with any third party on an exclusive or preferential basis, (g) any Contract which requires referrals of business or requires any Target Entity to make available investment opportunities to any person on a priority or exclusive basis, (other than the Company or h) any of its subsidiaries) Contract which grants any “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights right, right of first refusal, rights right of first negotiation offer or similar right with respect to any similar requirement in favor material assets, rights or properties of any person Target Entity, (other than the Company or any of its subsidiaries);
(vii) any contract relating Contract which limits the payment of dividends by any Target Entity, (j) any Contract pursuant to which any Target Entity has agreed with any third parties to become a member of, manage or control a joint venture, partnership, strategic alliance, limited liability company or other similar agreements to which the Company or any of its subsidiaries is a party;
entity, (viik) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) Contract pursuant to which any indebtedness of the Company or Target Entity has agreed with any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to a labor union, guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or otherwise contains a provision relating third party to a change of controlcontrol transaction such as an acquisition, divestiture or merger and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (l) any Contract which relates to Intellectual Property of Target (including permitting the use of the names “The First National Bank of Wyoming”, “First Wyoming” or any variant thereof), (m) any Contract between any Target Entity, on the one hand, and (1) any officer or director of any Target Entity, or that would or could reasonably be expected (2) to preventthe Knowledge of Target, delay or impair the consummation of the transactions contemplated herein, including the Merger;
any (x) any contract requiring record or otherwise relating to any future capital expenditures by beneficial owner of five percent or more of the Company voting securities of Target, (y) Affiliate or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries family member of any such officer, director or employee of the Company record or any of its subsidiaries; and
beneficial owner or (xiiz) any contract relating other Affiliate of Target, on the other hand, except those of a type available to employees of Target generally, or (n) any other Contract or amendment thereto that is material to any acquisition Target Entity or their respective business or Assets (by mergertogether with all Contracts referred to in Sections 4.13 and 4.19(a), consolidation, acquisition of all or substantially all of (the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries “Target Contracts”). With respect to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses Target Contract: (i) through the Contract is in full force and effect and enforceable in accordance with its terms; (xiiii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company no Target Entity is in material breach of Default thereunder; (iii) no Target Entity has repudiated or waived any material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice provision of any such material default, event or condition. To the knowledge of the Company, Contract; and (iv) no other party to any Company Material such Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company andis, to the knowledge Knowledge of Target, in Default in any material respect or has repudiated or waived any material provision thereunder. All of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, 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 Target Contracts have been Previously Disclosed. All of the court before which indebtedness of any proceeding therefor may be broughtTarget Entity for money borrowed is prepayable at any time by such Target Entity without penalty or premium.
Appears in 1 contract
Material Contracts. (a) Except for contracts (including all amendments As of the date hereof and modifications thereto) other than as filed as exhibits to the an exhibit in a Company SEC Documents, Schedule 3.18(a) Report or set forth on Section 4.8 of the Company Disclosure SchedulesSchedule, sets forth neither the Company nor any of its Subsidiaries is a complete and accurate list as of the date of this Agreement ofparty to or bound by:
(i) any contract Contract that is would be required to be filed by the Company as an exhibit a “material contract” pursuant to a report or filing Item 601(b)(10) of Regulation S-K under the Securities Act or the Exchange Act;
(ii) any contract that involves annual payments or consideration from Contract containing covenants binding upon the Company or its Subsidiaries that prohibits the Company and its Subsidiaries, taken as a whole, from competing (and which, following the consummation of the Merger, would prohibit the Surviving Corporation or its Affiliates from competing) in any line of its subsidiaries of more than $1,000,000 during any twelve (12) month period business or geographic area, and which is not terminable by the Company or its subsidiary on 90 (or fewer) such Subsidiary upon 60 days’ notice or any shorter period without any material penalty, payment or other material charges and excluding, in the case of any Intellectual Property licensed to the Company or any of its Subsidiaries, any ordinary course of business limitations of use of such Intellectual Property being licensed;
(iii) any contract Contract containing any standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of another Person that contains any covenant restricting would apply to the ability of the Company Company, Parent or any of its subsidiaries or affiliates (including Parent after their Subsidiaries following the Merger Closing) to: (x) conduct or compete in any material line of business, (y) compete with any person or (z) operate in any geographic areaEffective Time;
(iv) any contract granting Contract entered into after December 31, 2011 for the acquisition or disposition, directly or indirectly, of any material assets or any capital stock or other equity interests of any Person (excluding any Contracts entered into pursuant to any person (other than the Company Equity Plans) or any of its subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements Contract pursuant to which the Company or any of its subsidiaries is a partySubsidiaries has any material indemnification, earn-out or other material payment obligation, other than acquisitions or dispositions of inventory or products made in the ordinary course of business consistent with past practice;
(viiv) any loan agreementContract, credit agreementother than Contracts for the sale of Company Products in the ordinary course of business containing a non-exclusive end-user license for the use of such Products (and no other license), note(A) granting a license, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries comparable right, title or interest, in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or to any material Owned Intellectual Property by the Company or any of its subsidiaries of debt obligations Subsidiaries to any third party (except for Intellectual Property developed or customized for a particular customer); (B) involving the joint development or joint ownership of any material Owned Intellectual Property; or (C) creating a Lien (other personthan Permitted Liens, including and for the respective aggregate principal amounts outstanding as avoidance of the date doubt, excluding rights of this Agreementthird parties pursuant to non-exclusive licenses) in any material Owned Intellectual Property;
(viiivi) any contract with or with respect to Contract, other than Contracts for the sale of Company Products in the ordinary course of business containing a labor unionnon-exclusive end user license for the use of such Products (and no other license), guild or other employee representative (including any collective bargaining agreement or works council agreement);
(ixA) any contract that requires granting a consent to or otherwise contains a provision relating to a change of controllicense, or that would any comparable right, title or could reasonably be expected to preventinterest, delay in or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures material Licensed Intellectual Property by the Company or any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) Subsidiaries to any contract providing for indemnification third party, or by the Company or any its subsidiaries of any officer, director or employee of third party to the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by mergerSubsidiaries, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; excluding in each case licenses for such contracts as software that is commercially available without customization; or (B) creating a Lien (other than Permitted Liens, and for the avoidance of doubt, excluding rights of third parties pursuant to non-exclusive licenses) in any material Licensed Intellectual Property;
(vii) any Contract with any Governmental Entity pursuant to which the Company or any of its subsidiaries is Subsidiaries in the last twelve-month period has recognized revenue in excess of $1,000,000;
(viii) any Contract committing to or otherwise relating to indebtedness for borrowed money or the deferred purchase price of property or relating to any capitalized lease, hedging, swap, derivative transactions, off balance sheet financing arrangements or guarantees of the liabilities of any Person, in each case in excess of $500,000;
(ix) any Contract with a customer, third party distributor, value added reseller, channel partner or by similar Contract pursuant to which the Company or any of them its Subsidiaries in the last twelve-month period has recognized revenue in excess of $2,000,000;
(x) any Contract with a third party contract manufacturer, supplier, third-party logistics provider or similar Contract pursuant to which the Company or any of its Subsidiaries in the last twelve-month period has made payments in excess of $2,000,000;
(xi) any Contract pursuant to which the Company or its Subsidiaries grants any one Person and/or such Person’s Affiliates the exclusive right to be the sole acquirer or sole distributor of a Company Product (except for any Company Product developed specifically for such Person or its Affiliates), or the sole supplier or sole manufacturer of a Company Product or any component of a Company Product, which Contract is boundnot terminable by the Company or such Subsidiary upon 60 days notice or any shorter period without any material penalty, payment or other material charges;
(xii) any Contract containing minimum purchase conditions for the Company or its Subsidiaries in excess of $1,000,000 or requirements or other terms that materially restrict or limit the purchasing relationships of the Company or its Subsidiaries, or obligate the Company or its Subsidiaries to comply with a most-favored-nation or similar provision (other than a license fee paid under, or ordinary course of business limitations of Intellectual Property being licensed with respect to, a Contract described in clause (vi)(A) of this Section 4.8(a));
(xiii) any Contract involving the lease of real property with payments in excess of $100,000 in any fiscal year;
(xiv) any partnership, joint venture, profit sharing or similar Contract; or
(xv) any Contract with an Affiliate (excluding any Contract between the Company and a wholly-owned Subsidiary of the Company or a Contract between wholly-owned Subsidiaries of the Company) or any director or officer of the Company or any of its Subsidiaries. Each such contract Contract described in any of the foregoing clauses (i) through (xiixv) of this Section 3.18(a) (and each contract entered into after to which the date of this Agreement that would have been described in Company or any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) its Subsidiaries is a party is referred to herein as a “Company Material Contract.”.
(b) Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company or its Subsidiary, as the case may be, enforceable against the Company or such Subsidiary, as applicable, in accordance with its terms and, to the knowledge of the Company’s knowledge, each other party thereto, and is in full force and effect, enforceable in accordance with its terms and the Company or such Subsidiary, as applicable, has performed all obligations required to be performed by it under each Material Contract and, to the Company’s knowledge, each other party to each Material Contract has performed all obligations required to be performed by it under such Material Contract in all material respects. The Company has not received notice, except that nor does it have knowledge, of any material violation of or default of any obligation under (ior any condition which with the passage of time or the giving of notice would cause such a material violation of or default under) such enforcement may be subject any Material Contract or notice of termination or cancellation of any Material Contract. The Company has in all material respects made available to applicable bankruptcyParent a copy of each Material Contract, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtincluding all amendments with respect thereto.
Appears in 1 contract
Sources: Merger Agreement (Intermec, Inc.)