Material Contracts. Schedule 5.13 lists the following written contracts and other written agreements to which the Company is a party (collectively, the “Material Contracts”): (a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable; (b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum; (c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services; (d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000. (e) any agreement concerning a partnership or joint venture; (f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location; (g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company; (h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing); (i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing); (j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements; (k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business); (l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and (m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Vca Antech Inc)
Material Contracts. (i) The attached Schedule 5.13 lists the following written contracts and other written agreements to which the Company is a party 5.1(e)(i) identifies all Contracts (collectively, the “"Material Contracts”):") in effect as of the date of this Agreement to which any Seller is a party as set forth below:
(aA) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from involving any Person providing for lease payments annual expense in excess of Two Hundred Thousand U.S. Dollars ($100,000 per annum200,000.00) and not cancelable without liability within 90 days;
(cB) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) Contract for the purchase or sale of materials, supplies, products goods, services, consulting, equipment or other personal propertyassets that provides for either (x) annual payments from and after December 31, 2001 by Sellers of Two Hundred Thousand U.S. Dollars ($200,000.00) or for the furnishing more or receipt of services;
(dy) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining aggregate payments by the Company Sellers of more than Two Hundred Thousand U.S. Dollars ($100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations200,000.00) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Companymore, in each case that is not included in clauses cancelable without liability within 90 days;
(aC) through any sales, distribution or similar Contract providing for the sale by any Seller of materials, supplies, goods, services, equipment or other assets that provide for either (lx) above, which has future required annual payments to Sellers of Two Hundred Thousand U.S. Dollars ($200,000.00) or by the Company more or (y) aggregate payments to Sellers of Two Hundred Thousand U.S. Dollars ($200,000.00) or more, in excess of $100,000 per annum and each case that is not terminable by the Company upon notice of sixty days or less cancelable without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: liability within 90 days;
(iD) such Material any Contract is legal, valid, binding and enforceable against the Company, and, substantially related to the Knowledge ownership of the CompanyPurchased Assets or operation of the Business containing warranty obligations on the part of Sellers;
(E) any Contract substantially related to the ownership of the Purchased Assets or operation of the Business containing provisions or covenants limiting the freedom of Sellers to engage in any line of business or compete with any Person or prohibiting or limiting the ability of any Person to compete with Sellers or prohibiting or limiting disclosure of confidential or proprietary information;
(F) any Contract substantially related to the ownership of the Purchased Assets or operation of the Business relating to Indebtedness for borrowed money, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights issuance of creditors generally; (ii) the Company is not (with or without the lapse of time any debt security or the giving of noticeassumption, guarantee or both) in breach or default and, to the Knowledge endorsement of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation Person;
(G) any Contract between or loss among any Seller and any Affiliate of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.Seller;
Appears in 2 contracts
Sources: Asset Purchase Agreement (Republic Technologies International Holdings LLC), Asset Purchase Agreement (Blue Steel Capital Corp)
Material Contracts. Schedule 5.13 lists (a) Set forth in Section 3.09(a) of the Company Disclosure Letter is a list, as of the date hereof, of (i) each Contract that would be required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K of the SEC if such report was filed by the Company with the SEC on the date hereof, and (ii) each of the following written contracts and other written agreements to which the Company or any of its Subsidiaries is a party or any of them or their respective assets or properties are otherwise bound: a Contract (collectivelyA) that materially limits or purports to materially limit, curtail or restrict either the “Material Contracts”):
type of business in which the Company or any of its Subsidiaries (a) any agreement with or, after giving effect to the ten largest suppliers Merger and the ten largest customers Subsequent Mergers, Purchaser or any of its Subsidiaries) may engage or the Company manner or locations in which any of them may so engage in any business or to hire or solicit for hire for employment any individual or group, (by dollar amount)B) that is an indenture, each on a consolidated basis for the fiscal year ended December 31credit agreement, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases loan agreement, security agreement, guarantee, note, mortgage or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any other agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments or guaranteeing indebtedness in excess of $100,000 per annum;
5,000,000 or that becomes due and payable upon, or provides a right of termination or acceleration as a result of, the consummation of the Merger, the Subsequent Mergers and the other transactions contemplated hereby; (cC) except that, individually or together with related Contracts, provides for any agreement entered into acquisition, disposition, lease, license, use, distribution or outsourcing, after the date of this Agreement, of assets, services, rights or properties with a value or requiring annual fees in excess of $5,000,000, in each case other than in the Ordinary Course ordinary course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal propertybusiness consistent with past practice, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is otherwise material to the business of the Company;
(h) any agreement (Company or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible Subsidiaries; (D) that is a collective bargaining agreement; (E) that involves or intangible (other than any such agreement that will could reasonably be terminated at expected to involve aggregate payments by or prior to the Closing);
(i) Company and/or its Subsidiaries in excess of $1,000,000 in any agreement with twelve-month period, except for any Affiliate of the Company (other than any such agreement Contract that will may be terminated at cancelled without penalty or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future termination payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company and/or its Subsidiaries upon notice of 60 days or less without material cost or penalty, or other than any such Contract entered into in the ordinary course of business consistent with past practice; (iiiF) any oral “at will” employment arrangements;
that (k1) any agreement under which includes an indemnification obligation of the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company its Subsidiaries with a maximum potential liability in excess of $100,000 per annum and 1,000,000, other than indemnification arrangements arising pursuant to Contracts that are entered into in the ordinary course of business consistent with past practice, or (2) provides for, to the Company’s Knowledge, indemnification to the other party for such other party’s own negligence, gross negligence or willful misconduct; (G) that involves Intellectual Property that is not terminable by material to the Company upon notice and its Subsidiaries, taken as a whole, and pursuant to which the Company and/or its Subsidiaries licenses Company Intellectual Property (1) to its customers on an exclusive basis or (2) to any other person not in the ordinary course of sixty days business consistent with past practice; (H) any Contract that provides for any standstill, most favored nation provision or less without substantial cost equivalent preferential pricing terms, exclusivity or penaltysimilar obligations to which the Company or any of its Subsidiaries is subject or a beneficiary thereof, which is material to the Company or any of its Subsidiaries, taken as a whole (or, following the consummation of the Merger, the Subsequent Mergers and the other transactions contemplated hereby, would be material to Purchaser or any of its Subsidiaries); (I) any Contract for any joint venture, partnership or similar arrangement; or (J) any other Contract that would, or would reasonably be expected to, individually, prevent, materially delay or materially impede the Company’s ability to consummate the transactions contemplated by this Agreement. The Company has made available to Buyer an accurate and complete, Each such contract described in all material respects, copy of each Material Contract. With respect to each Material Contract: clause (i) such and clauses (ii)(A) through (ii)(J) and together with all Contracts filed as exhibits to the Company SEC Documents (in each case, other than any Company Plan), is referred to herein as a “Material Contract.”
(i) Each Material Contract is legalis, validand immediately after the consummation of the transactions contemplated by this Agreement will be, a valid and binding obligation of the Company and its Subsidiaries (to the extent they are parties thereto or bound thereby) enforceable against the Company, them and, to the Knowledge of the Company’s Knowledge, the each other parties party thereto, in accordance with its termsterms and is in full force and effect, in each case in all material respects (except as enforcement such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws of general applicability relating to or similar Law affecting creditors’ rights, and by general equitable principles), and each of the rights Company and each of creditors generally; its Subsidiaries (to the extent they are party thereto or bound thereby) and, to the Company’s Knowledge, each other party thereto has performed in all material respects all obligations required to be performed by it under each Material Contract, and (ii) each of the Company and each of its Subsidiaries has performed in all material respects all obligations required to be performed by it under each Material Contract and it is not (with or without the notice, lapse of time or the giving of notice, or both) in breach or default of any of its material obligations thereunder and, to the Knowledge of the Company, no other party to such any Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by neither the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on nor any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor its Subsidiaries has the Company given or received written notice alleging the same; and (v) from the other party to the any Material Contract has of any intention to cancel, terminate, change the scope of rights and obligations under or not repudiated in writing any portion of to renew such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (RSC Holdings Inc.), Merger Agreement (United Rentals Inc /De)
Material Contracts. (a) Southcross Disclosure Schedule 5.13 lists 3.14(a) contains a true and complete listing of the following written contracts and other written agreements to which the a Holdings Company is a party or to which a Holdings Company or any of their respective assets is bound as of the date hereof (collectively, the each contract that is described in this Section 3.14(a) being a “Southcross Material ContractsContract”):
(ai) any agreement gathering contract, transportation contract, connection contract, processing contract, storage contract, marketing contract or services contract, in each case which Holdings LP reasonably expects to result in future payments by or to any Holdings Company, either annually or in the aggregate, of more than $2,000,000; provided, however, this does not include contracts (A) with the ten largest suppliers and the ten largest customers a primary term of the Company six months or less or (by dollar amount), each B) that can be terminated without penalty or future payment (other than previously accrued payment obligations) on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableless than 90 days’ notice;
(bii) any agreement contract relating to or evidencing Indebtedness (excluding the items listed in (g) of the definition of Indebtedness);
(iii) any contract pursuant to which any of the Holdings Companies have made any outstanding loan, capital contribution or group other investment in, or assumed any liability or obligation of, any Person (not including knock-for-knock indemnities or other similar liabilities or obligations), including take-or-pay contracts or keep-whole agreements (which for avoidance of doubt shall not include NAESBs or the related agreementstransaction confirmations);
(iv) any contract with any Governmental Authority (excluding any rights-of-ways, easements or similar contracts or Permits);
(v) any contract with any Related Party of a Holdings Company (including, for the lease avoidance of personal property to doubt, any contract between any SXE Company and another Southcross Company that is not a SXE Company, but not including contracts between SXE Companies);
(vi) any (A) employment contract that involves an aggregate future or from any Person providing for lease payments potential liability in excess of $100,000 per annum250,000 or (B) consulting contract that involves an aggregate future or potential liability in excess of $250,000, and that cannot be terminated without penalty or future payment (other than previously accrued payment obligations that are less than $250,000) and without more than 90 days’ notice;
(cvii) except any contract that limits, or purports to limit, the ability of any of the Holdings Companies to compete in any line of business or with any Person or in any geographic area or during any period of time, or that restricts the right of the Holdings Companies 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;
(viii) any contract pursuant to which any of the Holdings Companies is (A) the lessee of any Leased Real Property or the lessor of any Real Property or (B) the lessee or lessor of any tangible personal property and, in the case of clause (B), that involves an aggregate future or potential liability or receivable, as the case may be, in excess of $500,000, and that cannot be terminated without penalty or future payment (other than previously accrued payment obligations that are less than $500,000) and without more than 90 days’ notice;
(ix) any (A) pending contract for the sale or purchase of any agreement Real Property or (B) any contracts for the sale or purchase of any Real Property entered into since September 30, 2014 and for which there are surviving obligations owed by any Holdings Company to another Person;
(x) any (A) joint venture or partnership contract between or among such joint venture partners relating to the joint venture or partnership (not including any Organization Documents thereof) or any (B) merger, asset or stock purchase or divestiture contract relating to the acquisition or disposition of all or substantially all the assets of any operating business (or business division) or a majority of the capital stock or other controlling interest of any other Person, in which there are surviving obligations of a Holdings Company owed to any Person;
(xi) any contract with any labor union or providing for benefits under any Southcross Benefit Plan;
(xii) 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 Holdings Companies;
(xiii) any contract relating to settlement of any Legal Proceedings entered into since September 30, 2014, for settlement amounts in excess of $250,000 (excluding settlements paid by insurance);
(xiv) any contract that results in any Person holding a power of attorney from any of the Holdings Companies that relates to any of the Holdings Companies or any of their respective businesses;
(xv) any contract with a Material Customer (as defined in Section 3.20(a)) that Holdings LP reasonably expects to result in future payments by or to any Holdings Company, either annually or in the aggregate, of more than $500,000;
(xvi) any contract with a Material Supplier (as defined in Section 3.20(b)) that has a term greater than six months and cannot be cancelled by the Holdings Companies without penalty or further payment (other than previously accrued payment obligations that are less than $500,000) and without more than 90-days’ notice;
(xvii) any transaction confirmation associated with a NAESB base contract for the purchase or sale of natural gas or natural gas liquids that had an initial term of twelve months or more and has remaining term after March 1, 2018; and
(xviii) any contract, other than gathering contracts, transportation contracts, connection contracts, processing contracts, storage contracts, marketing contracts, services contracts or NAESB base contracts (and related transaction confirmations), that does not meet the definitions set forth in clauses (i) through (xvii) above, whether or not made in the Ordinary Course of Business, any agreement that (A) Holdings LP reasonably expects to result in a future or group potential liability or receivable, as the case may be, in excess of related agreements) for $500,000 on an annual basis or in excess of $1,000,000 over the purchase or sale of suppliescurrent contract term, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments and has a term greater than one year and cannot be cancelled by the Company of more than $100,000.
(e) any agreement concerning a partnership Holdings Companies without penalty or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights further payment (other than licenses of commercially available, off-the-shelf softwarepreviously accrued payment obligations that are less than $500,000) and without more than 90-days’ notice, or (iiB) that is material to the business business, operations, assets, financial condition, results of operations or prospects of the Company;Southcross Companies, taken as a whole.
(hb) any agreement (or group of related agreements) under which the Company has incurredExcept as disclosed on Southcross Disclosure Schedule 3.14(b), assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of each Southcross Material Contract is valid and binding on the applicable Holdings Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company and is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, in full force and effect; (ii) any agreements that either (A) require future payments by none of the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon Southcross Companies has received written notice of 60 days or less without material cost or penaltyof, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the CompanyHoldings LP, knows of, the other parties theretoexistence of any event or condition that constitutes, in accordance with its termsor, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium after notice or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticeboth, or both) in will constitute, a breach or default and, on the part of any Holdings Company under any such Southcross Material Contract; and (iii) to the Knowledge of Holdings LP, as of the Company, date of this Agreement no other party to such any Southcross Material Contract is in breach or default thereunder, and no event has occurred nor to the Knowledge of Holdings LP, does any condition exist that, with notice or circumstance exists that lapse of time or both, would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; party thereunder, except with respect to the foregoing clause (ii) or (iii) ), for such breaches or defaults that would not have a Southcross Material Adverse Effect. None of the Company has performed all material obligations previously required Holdings Companies, nor to be performed by it under such the Knowledge of Holdings LP, any other contracting party, is seeking to renegotiate any Southcross Material Contract; (iv) . Holdings LP has delivered or made available to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification AMID true and complete copies of all Material Contracts including any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractamendments thereto.
Appears in 2 contracts
Sources: Contribution Agreement (Southcross Energy Partners, L.P.), Contribution Agreement (American Midstream Partners, LP)
Material Contracts. (a) All Contracts required to be filed as exhibits to the GSM SEC Documents have been so filed in a timely manner. Section 3.17(a) of the GSM Disclosure Schedule 5.13 lists sets forth a true and complete list, as of the date hereof, of each of the following written contracts and other written agreements Contracts to which the Company GSM or any of its Subsidiaries is a party or by which GSM or any of its Subsidiaries or any of their assets or businesses are bound (collectivelyand any amendments, the “Material Contracts”supplements and modifications thereto):
(ai) any agreement with the ten largest suppliers and the ten largest customers Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company (by dollar amountExchange Act), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(bii) any agreement Contract that materially limits the ability of GSM or any of its affiliates to compete or provide services in any line of business or with any Person or in any geographic area or market segment or to engage in any type of business (including any license, collaboration, agency or group distribution agreements);
(iii) any Contract required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;
(iv) any Contract or series of related agreementsContracts relating to indebtedness for borrowed money (A) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum20 million or (B) that becomes due and payable as a result of the Transactions;
(cv) except for any license, sublicense, option, development or collaboration agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order Contract relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business GSM Material Intellectual Property Rights (excluding “shrink-wrap,” “click-wrap” or other than licenses of uncustomized commercially available, available off-the-shelf softwaresoftware licenses that are not the subject of a negotiated agreement and excluding agreements the primary purpose of which is to purchase tangible goods or procure services unrelated to Intellectual Property) and (ii) that is material for which the aggregate annual amounts paid or payable to the business or by GSM or any of the Companyits Subsidiaries related to such agreement are greater than $250,000;
(hvi) any agreement Contract (excluding purchase orders issued in the ordinary course of business, a form or example of which has been previously provided to FA) with any of GSM’s top 10 suppliers (including purchasing agreements and group of related purchasing agreements) under which (measured by dollar volume of purchases of GSM during the Company has incurred12 months ended December 31, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing2014);
(ivii) any agreement Contract (excluding purchase orders issued in the ordinary course of business, a form or example of which has been previously provided to FA) with any Affiliate of GSM’s top 10 customers (measured by dollar volume of spending by the Company (other than any such agreement that will be terminated at or prior to customer during the Closing12 months ended December 31, 2014);
(jviii) any agreementpurchase, plan sale or arrangement by which the Company is bound with regard to employmentsupply Contract that contains volume requirements or commitments, consulting servicesexclusive or preferred purchasing arrangements or promotional requirements in excess of $10 million;
(ix) any material lease, compensationsublease, bonus, incentive, equity purchase occupancy agreement or other equityContract with respect to the GSM Leased Real Property (“GSM Lease Agreements”),
(x) any agreement that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of GSM or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses;
(xi) any material acquisition or divestiture agreement that contains “earn-based compensation out” provisions or rightother contingent payment obligations that have not been satisfied in full;
(xii) any agreement that by its terms limits the payment of dividends or other distributions by GSM or any of its Subsidiaries;
(xiii) any Contract for any joint venture, severance pay, retention bonusespartnership or similar arrangement, or success feesany Contract involving a sharing of revenues, profits, losses, costs, or liabilities by GSM or any of its Subsidiaries with any other than Person involving a potential combined commitment or payment by GSM and any of its Subsidiaries in excess of $5 million annually;
(xiv) any other agreement which would prohibit or delay beyond the Outside Date the consummation of Merger or any other Transaction contemplated by this Agreement; or
(xv) any GSM Significant Concession Contract.
(b) GSM has heretofore made available to FA true, correct and complete copies of the Contracts set forth in Section 3.17(a).
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a GSM Material Adverse Effect, (i) any Employee Benefit Plan all Contracts set forth on or required to be set forth in Section 3.17(a) of the GSM Disclosure Schedule 5.13or filed or required to be filed as exhibits to the GSM SEC Documents (the “GSM Material Contracts”) are valid, binding and in full force and effect and are enforceable by GSM or its 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) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penaltyGSM, or (iii) any oral “at will” employment arrangements;
(k) any agreement its applicable Subsidiary, has performed all material obligations required to be performed by it under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlementGSM Material Contracts, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and it is not terminable by the Company upon (with or without notice or lapse of sixty days time, or less without substantial cost both) in material breach or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, default thereunder and, to the Knowledge of the CompanyGSM, the no other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company party to any GSM Material Contract is not (with or without the notice or lapse of time or the giving of noticetime, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company since January 1, 2014, neither GSM nor any of its Subsidiaries has performed all received written notice of any actual, alleged, possible or potential material obligations previously required violation of, or material failure to be performed by it under such comply with, any term or requirement of any GSM Material Contract; , and (iv) to neither GSM nor any of its Subsidiaries has received any written notice of the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification intention of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to cancel, terminate, change the Material Contract has not repudiated in writing scope of rights under or fail to renew any portion of such GSM Material Contract.
Appears in 2 contracts
Sources: Business Combination Agreement (Globe Specialty Metals Inc), Business Combination Agreement (Globe Specialty Metals Inc)
Material Contracts. (a) Except as set forth on Schedule 5.13 lists 3.11(a), or for any Contracts to which Parent or any of its Subsidiaries is party, no Group Company as of the following written contracts and date hereof is party to or bound by any:
(i) agreement or indenture relating to the present or future borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any portion of the assets of the Group Companies;
(ii) (A) guaranty of any present or future obligation for borrowed money, or (B) other written agreements guaranty in excess of $200,000;
(iii) loan or credit agreement, mortgage, indenture, note or other Contract or instrument 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;
(iv) lease or agreement under which it is lessee of, or holds or operates any property owned by any other party, for which the annual rental exceeds $100,000 (excluding the Real Property Leases);
(v) (A) product design or development Contract material to the business of the Group Companies as currently conducted, (B) consulting Contract, (C) indemnification Contract (other than indemnity obligations provided in the ordinary course of business), (D) Intellectual Property rights, license or royalty Contract that requires the payment or potential payment by a Group Company in excess of $100,000 in the aggregate during any one (1)-year period, (E) merchandising, sales representative or distribution Contract for the business of the Group Companies as currently conducted, or (F) Contract granting a right of first refusal or first negotiation;
(vi) Contract or group of related Contracts with the same party for the purchase or supply of products or services that provide for annual payments by or to a Group Company in excess of $100,000 during the trailing twelve (12)‑month period ending on the Latest Balance Sheet Date;
(vii) any Contract relating to the acquisition, disposition or lease by the Company or any other Group Company of properties or assets for, in each case, aggregate consideration of more than $100,000;
(viii) material license agreement relating to the use of any material third‑party Intellectual Property having a one-time or annual fee in excess of $100,000 (other than licenses (A) for commercially available software, (B) granted by vendors for purposes related to the vendor's provision of services to any Group Company or (C) obtained in the ordinary course of business);
(ix) Contract that purports to limit, curtail or restrict the ability of any of the Company or any of its Subsidiaries to (A) compete in any geographic area or engage in any line of business, (B) sell products or deliver services to any person, (C) offer to supply any type of products or services, or (D) solicit potential customers, directors, managers, officers or employees;
(x) employment agreement or Contract with any independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable either (collectively, the “Material Contracts”):i) without penalty or (ii) without more than thirty (30) days' notice;
(axi) Contract with any agreement with the ten largest suppliers and the ten largest customers current or former director or officer of the Company (by dollar amount), each on a consolidated basis for or any of its Subsidiaries or any Affiliate of the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableCompany;
(bxii) voting agreement or registration rights agreement;
(xiii) standstill" agreement or similar Contract;
(xiv) Contract that restricts or otherwise limits the payment of dividends or other distributions on Company Shares;
(xv) Contract pursuant to which the Company or any agreement of its Subsidiaries is compelled to supply any of its present or future customers on the basis of a most favored customer principle;
(xvi) Contract that requires the Company to purchase its total requirements of any product or group service from a third party;
(xvii) Contract that requires the payment or potential payment from the Company or any of related agreements) for the lease of personal property to or from any Person providing for lease payments its Subsidiaries in excess of $100,000 per annum;
(cxviii) except Contract with any Governmental Entity;
(xix) Contract which provides for the indemnification of any director or officer of any Group Company;
(xx) Contract which provides for the sharing of revenues, profits, losses, costs or liabilities;
(xxi) any joint venture, strategic alliance, reseller agreement, or partnership agreement related to the formation, creation, operation or management of any joint venture or partnership that is material to any Group Company; or any other referral, management or joint venture agreement; and
(xxii) any express written commitment or agreement to enter into any of the foregoing.
(b) Parent either has been supplied with, or has been given access to, a true and correct copy of all written Contracts together with any and all amendments thereto that are referred to on Schedule 3.11(a) (collectively, the "Material Contracts"). Each Material Contract, assuming due power and authority of, and due execution and delivery by, the other party or parties thereto, is valid and binding on each Group Company that is a party thereto, as applicable, and is in full force and effect and enforceable against the relevant Group Company and has been entered into in the Ordinary Course ordinary course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000business consistent with past practice.
(ec) any agreement concerning a partnership As of the date of this Agreement, no Group Company has violated or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conductedbreached, or which expressly restricts the ability of the Company to conduct business of committed any type or in default under, any location;
(g) any agreement Material Contract; (i) relating to the licensing by Company's Knowledge, as of the date of this Agreement, no other Person has violated or to the Company of Business Intellectual Property Rights (other than licenses of commercially availablebreached, off-the-shelf software) or committed any material default under, any Material Contract; and (ii) that is material to the business as of the Company;
(h) any agreement (or group date of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company orthis Agreement, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s 's Knowledge, no event has occurred that has violated or circumstance exists breached, nor does any condition exist that with or without notice or lapse of time or both would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due undera violation or breach of, or result in the imposition of any Lien on any of the provisions of any Material Contract.
(d) No Group Company has received any written notice from any party to a Material Contract relating to such party's intent to adversely modify, terminate or fail to renew the arrangements and relationships set forth therein, or asserting a material breach by a Group Company of such arrangements. Entry into this Agreement by the Company’s securities , or any the consummation by the Company of the properties or assets of Transactions, does not and will not give any party to a Material Contract the Company under any right to terminate such Material Contract (other than Permitted Liens) nor has under the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion terms of such Material Contractcontract or condition or delay consummation of the Transactions.
Appears in 2 contracts
Sources: Merger Agreement (Nordhagen Arlen Dale), Merger Agreement (National Storage Affiliates Trust)
Material Contracts. (a) Schedule 5.13 lists 2.10(a) of the Disclosure Letter sets forth a list as of the date of this Agreement of each of the following written contracts and other written agreements to which the Company is a party Business Agreements (collectively, the “Material Contracts”):
(ai) any agreement Business Agreement pursuant to which Indebtedness of any Transferred Company has been incurred (other than those in respect of trade payables arising in the ordinary course of business);
(ii) any guaranty by the Transferred Companies of any obligation for borrowed money (other than guaranties of credit cards of officers and employees of the Transferred Companies), excluding endorsements made for collection in the ordinary course of business;
(iii) any obligation to make payments, contingent or otherwise, arising out of the prior acquisition of any Assets or businesses of third Persons (other than accounts payable and accrued liabilities constituting current liabilities);
(iv) any Business Agreement containing non-competition, non-solicitation or other limitations restricting the current or future development, manufacture, marketing or distribution of the products and services by any Transferred Company, or any Transferred Company’s ability to compete in any line of business, in any geographic area or with any Person or to solicit the ten largest suppliers and the ten largest employees or customers of any Person (other than confidentiality and similar agreements entered into in the Company ordinary course of business);
(by dollar amount)v) any Business Agreement for the employment or engagement of any officer, each director, employee or other Person on a consolidated full-time, part-time, consulting or other basis that provides for the payment of any cash or other compensation, severance or benefits as a result of the execution of this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby;
(vi) any Business Agreement (other than (A) for the purchase or sale of goods and services on a purchase order basis in the ordinary course of business and (B) Leases) which involved the payment of consideration to or by a Transferred Company, in each case, by or to a third Person, in excess of U.S.$2,500,000 during the fiscal year ended December 31, 2010 and setting forth 2012 or are reasonably expected to involve the approximate dollar amount and the approximate percentage payment of consolidated gross purchases consideration in excess of U.S.$2,500,000 to or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableby a Transferred Company in any twelve (12) month period;
(bvii) any agreement Business Agreement pursuant to which a Transferred Company purchases goods or services (other than on a purchase order basis) that is a Business Agreement with a mandatory take or group pay or similar purchase requirement for all or a portion of related agreementssuch Transferred Company’s purchase obligations with respect to such good or service (a “Take or Pay Agreement”);
(viii) any Business Agreement that contains any product or service guaranty or warranty or right of return that is not consistent with the terms customarily provided by the Business in the ordinary course of business;
(ix) any Business Agreement that is a partnership, joint venture, profit-sharing, loss-sharing or similar Contract;
(x) any Business Agreement that contains any form of most-favored nation provision in favor of any customer or supplier of the Business or any other Person;
(xi) any Business Agreement pursuant to which a Transferred Company purchases goods or services (other than on a purchase order basis) that is a sole source purchase Contract or another Contract with exclusivity provisions applicable to a Transferred Company;
(xii) any Business Agreement to which a Governmental Authority, or a Representative of a Governmental Authority is a party;
(xiii) any Business Agreement under which any Transferred Company has made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than a Transferred Company or a Non-Controlled Company and other than loans or advances to employees or extensions of trade credit in the ordinary course of business);
(xiv) any Business Agreement granting an Encumbrance (other than a Permitted Encumbrance) upon any Shares or Business Assets;
(xv) any Business Agreement entered into outside the ordinary course of business providing for indemnification by a Transferred Company of any Person that remains in effect as of the date of this Agreement with respect to liabilities relating to any former business of any Transferred Company or any predecessor Person;
(xvi) any Business Agreement relating to the acquisition or disposition of any business, material Assets (other than Inventory sales in the ordinary course of business) or Equity Interests of a third Person outside of the ordinary course of business;
(xvii) all Business Agreements (A) for the lease cleanup, abatement or other actions in connection with any Hazardous Substances or the Remedial Action of personal property to any existing Environmental Condition, in each case that are not terminable without penalty on thirty (30) days’ or from any Person providing for lease fewer notice or that require payments by the Transferred Company or Non-Controlled Company in an amount in excess of $100,000 125,000 per annumannum or (B) involving payment by Parent or one of its Affiliates to a third party in an amount in excess of $125,000 for the performance of any ongoing environmental audit or study at an individual Acquired Site or Leased Site;
(cxviii) except for any agreement entered into in Derivatives Contract that will be binding on a Transferred Company after the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of servicesClosing;
(dxix) any agreementBusiness Agreement primarily related to the use, commitmentdevelopment, support or outstanding purchase order relating to capital expenditures that involves total remaining payments disaster recovery of the IT Systems used primarily by the Company Transferred Companies reasonably expected to involve the payment of more than consideration in an amount in excess of $100,000.
(e) any agreement concerning a partnership or joint venture1,000,000 on an annual basis;
(fxx) any agreement containing a covenant not Business Agreement pursuant to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(gA) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of Business is licensed to a Transferred Company by a third Person (other than license agreements for “off-the-shelf” software on generally standard terms and conditions); or (B) a Transferred Company has (1) granted to a third Person an exclusive right with respect to Intellectual Property or (2) granted to a third Person any right with respect to Intellectual Property that is material to the CompanyBusiness;
(hxxi) any agreement (or group Business Agreement relating to any outstanding commitment for Capital Expenditures in excess of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing)$2,000,000;
(ixxii) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior Business Agreement relating to the Closing);
settlement of any Proceeding that (jA) contains any agreement, plan obligations or arrangement by which commitments of a Transferred Company to make payments to a third person in excess of $500,000 after the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase date of this Agreement or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by limits the conduct of a Transferred Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course ordinary course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay moneybusiness; and
(mxxiii) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses Contracts for IT Systems of the Business listed on Schedule 2.10(a)(xxiii) of the Disclosure Letter.
(ab) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Each Material Contract is legal, valid, in full force and effect and constitutes a valid and legally binding and enforceable against obligation of the Company, applicable Transferred Company and, to the Knowledge of Parent, of each other party thereto, enforceable against such Transferred Company and, to the CompanyKnowledge of Parent, the each other parties party thereto, in accordance with its terms, except as enforcement such enforceability may be limited by applicable bankruptcythe Bankruptcy and Equity Exceptions. Neither any Transferred Company nor, insolvencyto the Knowledge of Parent, reorganizationany other party to any Material Contract is in material breach or default of or under any such Material Contract, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (and to Parent’s Knowledge, no event has occurred that with or without the lapse of time or the giving of notice, or both) in , would constitute a material breach or default andof any other party thereto. The execution, delivery and performance by Parent of this Agreement and the Ancillary Documents to be executed and delivered by Parent or any of the Sellers, and the consummation of the transactions contemplated hereby and thereby by Parent and the Sellers, do not and will not conflict with, result in the modification or cancellation of, render unenforceable, or give rise to any right of termination in respect of (with due notice or lapse of time or both) any Material Contract. No party to any of the Material Contracts has exercised in writing any termination rights with respect thereto, and to the Knowledge of the CompanyParent, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification given written notice of any obligation material dispute with respect to any Material Contracts. Parent has made available to Buyer true, correct and complete copies of all Material Contracts, together with all amendments, modifications or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractsupplements thereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Rockwood Holdings, Inc.), Stock Purchase Agreement (Huntsman International LLC)
Material Contracts. (a) Section 3.16(a) of the Disclosure Schedule 5.13 lists the following written contracts sets forth, by applicable subsection, a correct and other written agreements complete list of all Contracts to which the any Group Company is a party party, which are currently in effect, of a type listed below (collectivelysuch Contracts, whether or not listed in Section 3.16(a) of the Disclosure Schedule, hereinafter referred to as the “Material Contracts”):
(ai) any agreement with Contract related to the ten largest suppliers and Leased Real Property that requires the ten largest customers tenant thereunder to pay to the landlord annual net rent in excess of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable$50,000;
(bii) any agreement (Contract or group of related agreementsContracts involving, or reasonably expected to involve, an annual commitment, on a going-forward basis, by any party thereto of more than $500,000, individually, or pursuant to which any Group Company has paid or is obligated to pay any third party more than $1,000,000 over the life of such Contract, in each case, excluding, for the avoidance of doubt, expired or terminated purchase orders or statements of work;
(iii) for any Contract that relates to Indebtedness;
(iv) any Contract relating to the lease of personal property used by a Group Company involving annual payments by any Group Company in excess of $100,000 individually;
(v) any mortgage, pledge, indenture or security agreement or similar arrangement constituting a Lien upon the assets or properties of a Group Company;
(vi) any collective bargaining agreement or Contract with any labor union;
(vii) any Contract relating to any acquisition or from disposition of equity interests or business or material assets of any other Person by any Group Company under which any Group Company currently has any actual or potential Liability or other ongoing obligations or restrictions;
(viii) any Contract providing for lease contingent, earn-out or similar payments by or on behalf of any Group Company;
(ix) any Contract between any Group Company, on the one hand, and any other Person, on the other hand, (a) granting any right to use or practice any rights under any of the Intellectual Property owned either by such Group Company or by such Person (other than commercially available “off-the-shelf” software) involving aggregate payments by any party thereto in excess of $100,000, (b) pursuant to which any Group Company licenses Intellectual Property from such Person that is material to the operation of the Business or (c) pursuant to which any third party developed any material Intellectual Property for any Group Company;
(x) any joint venture, strategic alliance, revenue sharing, partnership or similar Contract with any other Person;
(xi) any shareholder Contract or voting Contract (including with respect to any capital stock of a Group Company or the appointment of directors of a Group Company);
(xii) any Contract between or among any Group Company, on the one hand, and Seller or any director, manager, partner, officer or senior management-level employee (or any of their Affiliates) of any Group Company (or in the case of any such Person who is an individual, any member of his or her immediate family), on the one other hand (other than customary Contracts relating to employment or reimbursement for business expenses in the Ordinary Course of Business or benefits under the Benefit Plans);
(xiii) any Contract for capital expenditures requiring remaining aggregate future payments in excess of $100,000 per annum500,000;
(cxiv) except for any Contract with a Material Supplier;
(xv) any Severance Contract;
(xvi) any settlement agreement with respect to any Legal Proceeding under which any Group Company currently has any actual or potential Liability or other ongoing obligations or restrictions;
(xvii) any standstill or similar agreement containing provisions prohibiting a third party from purchasing equity securities of the Group Companies or, in each case, the assets of the Group Companies or otherwise seeking to influence or exercise control over any Group Company;
(xviii) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into (A) in the Ordinary Course of BusinessBusiness or (B) since January 1, any agreement (or group of related agreements) for 2017, in connection with the purchase or potential sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(hxix) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior Contract relating to the Closing)ESOP Loan Receivable;
(ixx) any agreement with Contract pursuant to which any Affiliate Group Company has granted or obtained a release of the Company (other than any such agreement that will be terminated at actual or prior to the Closing);alleged liability, breach of Contract or violation of law; and
(jxxi) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either Contract (A) require future payments pursuant to which any other party is granted exclusive rights or “most favored party” rights of any type or scope with respect to any products or services provided by the Company of less than $100,000Company, (B) have a remaining term containing any non-competition covenants or other restrictions relating to any products or services provided by the Company, (C) that limits or would limit the freedom of less than one year and can be terminated any Group Company, or in each case, any of their respective successors or assigns or their respective Affiliates to (I) engage or participate, or compete with any other Person, in any line of business, market or geographic area, including any grants by the Company upon notice or its Subsidiaries of 60 days exclusive rights or less without material cost or penalty, licenses or (iiiII) sell, distribute or manufacture any oral products or services or to purchase or otherwise obtain any software, components, parts or services or (D) containing any “at willtake or pay,” employment arrangements;minimum commitments or similar provisions.
(kb) any agreement under which All Material Contracts are in written form. Prior to the Company has advanced or loaned any amount to any employee (other than advances in date hereof, the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate a correct and complete, in all material respects, complete copy of each Material Contract, together with all legally binding, written modifications, schedules or supplements thereto. With respect to each Material Contract: (i) such Each Material Contract is legal, valid, binding and enforceable against the Company, applicable Group Company and, to the Knowledge of the Company, the against each other parties thereto, Person party thereto in accordance with its termsterms (subject to the Enforceability Exception), except and is in full force and effect. Each Group Company has performed all of the obligations required to be performed by it as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting of the rights of creditors generally; (ii) the Company date hereof pursuant to each Material Contract to which it is a party and is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to under such Material Contract. To the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or Material Contracts is in default thereunder. No Group Company has made a binding waiver of any rights under any of the properties Material Contracts or assets of the Company under modified any such Material Contract (terms thereof other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to as set forth in the Material Contract has not repudiated in writing any portion of such Material ContractContracts made available to Buyer.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Shutterfly Inc)
Material Contracts. Schedule 5.13 lists the following written contracts and other written agreements to which (a) Except for this Agreement, the Company Benefit Plans or as filed with the SEC, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party (collectively, the “Material Contracts”):to or bound by:
(ai) any agreement with Company Contract: (A) relating to the ten largest suppliers and the ten largest customers development, sale or disposition of the Company any Owned Real Property; or (by dollar amount), each on B) that is a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableLease;
(bii) any agreement Company Contract: (A) involving a material joint venture, strategic alliance, partnership or group sharing of related agreementsprofits or revenue; or (B) for any capital expenditure over the lease remaining life of personal property to or from any Person providing for lease payments such Company Contract in excess of $100,000 per annum5,000,000 that is not included in the Company’s capital expenditure budget set forth in Section 3.11(a)-1(ii) of the Company Disclosure Letter;
(ciii) except for any agreement Company Contract entered into in the Ordinary Course of Businessat any time since January 1, any agreement 2021: (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (iA) relating to the licensing disposition or acquisition by any Acquired Company of any business, product line or other assets outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) for consideration in excess of $25,000,000; or (B) pursuant to which any Acquired Company will acquire any interest, or will make an investment, other than short term investments including but not limited to money market funds, bank deposits, commercial paper and other money market instruments as disclosed in the Company Balance Sheet or the notes thereto, or interests or investments incurred in the ordinary course of business consistent with past practice since the date of the Company Balance Sheet, for consideration in excess of $25,000,000 in any other Person, other than another Acquired Company;
(iv) any Company Contract relating to the disposition or acquisition by any Acquired Company of Business any business, product line or other material assets of the Acquired Company or another Entity outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) with continuing material indemnification obligations of any Acquired Company, or any material remaining “earn out” or other contingent payment or consideration of any Acquired Company that has not been substantially satisfied prior to the date of this Agreement;
(v) any Company Contract that by its terms materially limits the ability of any Acquired Company or its Affiliates: (A) to engage in any line of business or compete with any other Person or in any geographic area; or (B) to acquire any product or other asset or any service from any Person, sell any product or other asset to or perform any service for any other Person, or transact business or deal in any other manner with any other Person;
(vi) any Company Contract that by its terms: (A) grants exclusive rights to market, sell or deliver any material product or service of any Acquired Company; (B) contains any “most favored nation” or similar provision in favor of the counterparty for a material product or service of any Acquired Company; (C) contains a right of first refusal, first offer or first negotiation or any similar right with respect to a material asset owned by an Acquired Company; or (D) provides for a “sole source” or similar relationship or contains any provision that requires the purchase of all or a material portion of an Acquired Company’s requirements from any third party; or any Company Contract that, by its terms, following the Closing would grant, contain or provide any of the foregoing rights in respect of Parent or any Subsidiary of Parent (other than those Subsidiaries constituting Acquired Companies);
(vii) any settlement, conciliation or similar Company Contract arising out of a Legal Proceeding or threatened Legal Proceeding: (A) that materially restricts or imposes any material obligation on any Acquired Company or materially disrupts the business of any of the Acquired Companies as currently conducted; or (B) that would require any of the Acquired Companies to pay consideration valued at more than $5,000,000 in the aggregate following the date of this Agreement;
(viii) any material Company Contract (A) pursuant to which an Acquired Company grants a third party a right, license, sublicense or covenant not to sue with respect to any Company IP, other than non-exclusive licenses granted in the ordinary course of business, or (B) pursuant to which a third party grants an Acquired Company a right, license, sublicense or covenant not to sue with respect to any Intellectual Property Rights, other than non-exclusive licenses of generally commercially available Intellectual Property Rights (other than licenses of commercially available, including off-the-shelf software) and (ii) that is material to the business of the Companyinvolve an up-front or annual payment by an Acquired Company exceeding $4,000,000;
(hix) any agreement (or group Company Contract relating to the incurrence of related agreements) under which indebtedness of the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which Acquired Companies for borrowed money outstanding as of the Company has imposed a Lien (other than a Permitted Lien) on any date of its assets, tangible or intangible this Agreement in excess of $10,000,000 (other than any such agreement that will be terminated at or prior indebtedness owed to the Closinganother Acquired Company);
(ix) any agreement with Collective Bargaining Agreement; or
(xi) any Affiliate of the other Company Contract (other than any other Material Contract), if a termination of such agreement that will Company Contract reasonably would be terminated at expected to have or prior to result in a Company Material Adverse Effect. Each Contract of the Closing);
(jtype described in this Section 3.11(a) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments filed by the Company as a “material contract” pursuant to Item 601(b)(10) of less than $100,000Regulation S-K under the Securities Act, is referred to herein as a “Material Contract.”
(Bb) have a remaining term of less than one year and can be terminated by As promptly as practicable after the date hereof, the Company upon notice shall provide to Parent true and complete copies of 60 days or less without material cost or penaltythe Material Contracts. As promptly as practicable after the date hereof, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount shall provide to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum Parent a true and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, complete copy of each Company Contract with a Governmental Entity. Except as would not have, individually or in the aggregate, a Company Material Contract. With respect to Adverse Effect, each Material Contract: (i) such Material Contract is legal, in full force and effect and is valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its termsterms against each Acquired Company which is a party thereto, except as enforcement may be limited by applicable bankruptcysubject to the Enforceability Exceptions and assuming the validity, insolvencybinding nature and enforceability against the counterparty or counterparties thereto. None of the Acquired Companies, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to Person, has violated or breached, or committed any default under, any Material Contract, where such Material Contract is in violation, breach or default thereunderwould have, and no event has occurred individually or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the aggregate, a Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (National Instruments Corp), Merger Agreement (Emerson Electric Co)
Material Contracts. (a) Schedule 5.13 lists 4.10(a) contains an accurate and complete list of each of the following written contracts and other written agreements Contracts to which the Company Seller is a party (collectively, the “"Material Contracts”"):
(ai) Contracts for the future acquisition or sale of any agreement with assets or the ten largest suppliers furnishings of any services;
(ii) Contracts which involve expenditures or receipts in excess of $25,000;
(iii) Contracts entered into after the date and the ten largest customers time of the Company filing of the Bankruptcy Case which involve expenditures or receipts by or to Seller in excess of $25,000, other than any Contract that can be terminated by Seller upon less than 30 days' prior notice without penalty;
(iv) Contracts relating to the acquisition or disposition by dollar amount)Seller of any operating business, each on product line or a consolidated basis material amount of assets, or the acquisition by Seller of capital stock of any other Person;
(v) Contracts with any current or former officer, director or employee of Seller;
(vi) Contracts with any labor union or association representing employees;
(vii) Contracts requiring the payment by or to Seller of a royalty or similar commission or fee of more than $25,000 in any 12-month period;
(viii) Contracts relating to the borrowing of money pursuant to which Seller will remain obligated after the Closing;
(ix) Contracts (A) relating to the creation of Liens or the guarantee of the payment of Liabilities and Costs or performance of obligations of any other Person by Seller and (B) constituting Assumed Contracts;
(x) Contracts for the fiscal year ended December 31, 2010 and setting forth lease of property from or to third parties involving annual payments in any one case of more than $25,000;
(xi) all individual customer orders in excess of $25,000;
(xii) Contracts with Affiliates; and
(xiii) Contracts containing covenants of Seller prohibiting or materially limiting the approximate dollar amount and the approximate percentage of consolidated gross purchases right to compete in any business or consolidated gross sales, as applicable, attributable restricting its ability to such supplier conduct any business with any Person or customer, as applicable;in any geographical area.
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of BusinessUpon Closing, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights each Material Contract (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (those which will have terminated or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) expired on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(iClosing Date in accordance with their terms) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company constitutes an Assumed Contract is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year in full force and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum effect and is not terminable by the Company upon notice a valid and binding obligation of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate Seller and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, enforceable in accordance with its terms. True, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; correct and complete copies (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledgeif oral, by any such other party; (iiiwritten summaries) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material each Assumed Contract has not repudiated in writing any portion of such Material Contractbeen delivered or made available to Purchaser.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Able Laboratories Inc), Asset Purchase Agreement (Able Laboratories Inc)
Material Contracts. Schedule 5.13 lists the following written contracts and other written agreements to which the Company is a party (collectively, the “Material Contracts”):
(a) The Company has made available to the Investor, prior to the date of this Agreement, true, correct and complete copies of all of the material Contracts, as amended and supplemented to which any agreement with the ten largest suppliers and the ten largest customers of the Company or any of its Subsidiaries is a party, including, without limitation, (by dollar amount), each on i) Contracts that would be considered a consolidated basis for material contract pursuant to Item 601(b)(10) of Regulation S-K; (ii) Contracts (including all advertising and advertising-related agreements) pursuant to which any of the Company or any of its Subsidiaries has received or has paid amounts in excess of an aggregate of US$100,000 during the fiscal year ended December 31, 2010 2008; (iii) Contracts that are in full force and setting forth effect with any bus company or transportation company or authority; (iv) Contracts that are in full force and effect with any program or content provider (including any television stations or video press); (v) Contracts that relate to the approximate dollar amount and the approximate percentage acquisition, disposition or transfer of consolidated gross purchases any equipment; (vi) loan agreements, indentures or consolidated gross sales, as applicable, attributable similar Contracts relating to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments indebtedness in excess of $100,000 per annum;
US$250,000; (cvii) except for partnership, joint venture or similar Contracts; (viii) Contracts with a Governmental Authority or any agreement entered into in Person affiliated with a Governmental Authority; (ix) Contracts that relate to the Ordinary Course acquisition or disposition of Businessany business (whether by merger, any agreement (or group of related agreements) for the purchase or sale of suppliesstock, products sale of assets or other personal otherwise); (x) the Structure Agreements; and (xi) Contracts that restrict or purport to restrict the right of any Person to engage in any line of business, acquire any property, develop or for the furnishing distribute any product or receipt of services;
provide any service (dincluding geographic restrictions) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conductedwith any Person or grant any exclusive distribution rights, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
market, field or territory (g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially availableeach, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing“Material Contract”);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy A list of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legalset forth on Section 4.14 of the Disclosure Letter. None of the Company or any of its Subsidiaries is party to any oral or unwritten Contracts that would be considered a material contract pursuant to Item 601(b)(10) of Regulation S-K. None of the Company or any of its Subsidiaries is in violation of or in default under (nor does there exist any condition which upon the passage of time or the giving of notice would cause such a violation of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, valid, binding and enforceable against the Company, except for violations or defaults that would not result in a Material Adverse Effect; and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except Company as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Companydate of this Agreement, no other party to such Person has violated or breached, or committed any default under, any Material Contract, except for violations, breaches and defaults that, individually or in the aggregate, have not had and would not have a Material Adverse Effect.
(b) Except as disclosed in Section 4.14(b) of the Disclosure Letter, each Material Contract is a legal, valid and binding agreement and is in full force and effect. Except as would not have a Material Adverse Effect, (i) none of the Company or any of its Subsidiaries is in breach or default thereunder, and of any Material Contract to which it is a party; (ii) no event has occurred or circumstance exists has existed that (with or without notice or lapse of time), will or would constitute reasonably be expected to, (A) contravene, conflict with or result in a violation or breach of, or become a default by the Company oror event of default under, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such provision of any Material Contract; (ivB) permit any of the Company or any of its Subsidiaries or any other Person the right to declare a default or exercise any remedy under, or to accelerate the Company’s Knowledgematurity or performance of, no event or to cancel, terminate or modify any Material Contract; and (iii) none of the Company or any of its Subsidiaries has occurred received notice of the pending or circumstance exists that would permit termination, threatened cancellation, acceleration, suspension revocation or adverse modification termination of any obligation Material Contract to which it is a party. Since December 31, 2008, none of the Company or loss any of its Subsidiaries has received any benefit notice or other communication regarding any actual or possible violation or breach of, or default under, any Material Contract.
(c) Section 4.14(c) of the Disclosure Letter sets forth all of the Structure Agreements, which constitute all of the Contracts enabling the Company to effect control over and consolidate with its financial statements each of its Subsidiaries (including the PRCCo). The execution, delivery and performance of each Structure Agreement by the parties thereto did not and is not reasonably expected to (i) result in any payment becoming due undermaterial violation of the business license, articles of association, other constitutional documents (if any) or permits of any of the Company or any of its Subsidiaries; (ii) result in any violation of or penalty under any PRC Law as in effect as of the date hereof; or (iii) conflict with or result in the imposition a breach or violation of any Lien on any of the Company’s securities terms or provisions of, or constitute a default under, any other Contract, license, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument in effect as of the date hereof to which any of them is a party or by which any of them is bound or to which any of their property or assets is subject; except, in the case of clause (ii) and (iii), as would not have a Material Adverse Effect. No breach or default under any of the Structure Agreements by any of the Company or any of its Subsidiaries will occur as a result of the properties execution, delivery and performance of this Agreement, the Registration Rights Agreement or assets the Investor Rights Agreement. Consummation of the Transactions will not (and will not give any Person a right to) terminate or modify any rights of, or accelerate or augment any obligation of, any of the Company or any of its Subsidiaries under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractStructure Agreement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Starr International Co Inc), Securities Purchase Agreement (China MediaExpress Holdings, Inc.)
Material Contracts. (a) Section 3.14 of the Company Disclosure Schedule 5.13 lists contains a complete and accurate list, and the Company has delivered to the Parent true and complete copies, of the following written contracts and other written agreements to which the (a "Company is a party (collectively, the “Material Contracts”Contract"):
(ai) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures contract that involves total remaining payments by the Company performance of more than $100,000.
(e) any agreement concerning a partnership services or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor delivery of a third party that impairs the business as currently conducted, goods or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing materials by or to the Company of Business Intellectual Property Rights (other than licenses an amount or value in excess of commercially available, off-the-shelf software) and $100,000;
(ii) each contract, including notes, loan agreements and other debt instruments, that is material was not entered into in the ordinary course of business and that involves potential expenditures or receipts of the Company in excess of $100,000;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $250,000 and with terms of less than one year);
(iv) each joint venture, partnership, and other contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other person;
(v) each contract containing covenants that in any way purport to restrict the business activity of the Company;
(hvi) each contract providing for payments to or by any agreement person based on sales, purchases or profits of the Company, other than direct payments for goods or services;
(vii) each power of attorney granted by the Company that is currently effective and outstanding;
(viii) each contract of the Company for capital expenditures in excess of $50,000;
(ix) each written warranty, guaranty, and or group of related agreementsother similar undertaking with respect to contractual performance extended by the Company;
(x) under each contract pursuant to which the Company has incurredgranted preemptive, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assetsfirst refusal, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation registration or similar agreement entered by any Governmental Authority whereby the Company is under an obligation rights with respect to perform activities, refrain from activities and/or pay moneyits capital stock; and
(mxi) any other agreementcontract that is material to the condition, contractoperations, lease, license, instrument business or commitment binding upon prospects of the Company.
(b) All Company Material Contracts are in full force and effect, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available performed its obligations thereunder to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, date and, to the Knowledge knowledge of the Company, the each other parties theretoparty thereto has performed its obligations thereunder to date, other than any failure of any such Company Material Contract to be in accordance with its terms, except as enforcement may full force and effect or any nonperformance thereof that could not reasonably be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; expected to have a Company Material Adverse Effect.
(iic) the The Company is has no reason to believe that it will not (with or without the lapse of time or the giving of notice, or both) in breach or default and, be able to negotiate and enter into a satisfactory agreement relating to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iiimatters set forth on Section 3.14(c) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractDisclosure Schedule.
Appears in 2 contracts
Sources: Merger Agreement (Intellicall Inc), Merger Agreement (Intellicall Inc)
Material Contracts. (a) Except as set forth in Section 2.15(a) of the Disclosure Schedule 5.13 lists (specifying the following written contracts and other written agreements to which appropriate paragraph), as of the date hereof, no Group Company is a party (collectivelyto, the “Material Contracts”):or has or may acquire any obligations, rights or benefits under:
(ai) any agreement Contract that would restrict the ability of any Group Company to conduct any line of business or operations, to compete with the ten largest suppliers and the ten largest customers any Person in any line of the Company (by dollar amount)business, each on a consolidated basis for the fiscal year ended December 31or to beneficially own any assets, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases properties or consolidated gross salesrights, as applicable, attributable to such supplier or customer, as applicableanywhere in any material respect;
(bii) any employment, contractor or consulting Contract with, or any Contract to grant or pay any severance or other termination pay (in cash or otherwise) to any employee or individual consultant, contractor, or salesperson, or granting any severance or termination pay (in cash or otherwise) to any employee or consultant, contractor or salesperson whose annual cash compensation equals or exceeds KRW 150,000,000;
(iii) any Contract, including any stock option, stock appreciation right, restricted stock, restricted stock unit, phantom stock, stock purchase or other equity or equity-based plan or agreement (including any grant agreement), any of the benefits of which will be increased, or group the vesting of related agreementsbenefits of which will be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iv) any lease, lease guaranty, sublease, agreement for the leasing, use or occupancy of, or otherwise granting a right in or relating to any real property with annual base rent payments (without regard to any free rent period or other landlord incentives) in excess of KRW 150,000,000 per year;
(v) any lease of personal property to or from any Person providing for lease with annual payments in excess of $100,000 KRW 150,000,000 per annumyear;
(cvi) except any surety or guarantee agreement or other similar undertaking with respect to Indebtedness;
(vii) any Contract relating to capital expenditures and involving future payments in excess of KRW 150,000,000 individually;
(viii) any Contract under which any Group Company has an obligation to indemnify any third party other than indemnification provided in Contracts entered into by a Group Company in the Ordinary Course of Business with a customer, merchant or vendor;
(ix) any Contract relating to the disposition or acquisition of material assets, any joint venture agreement or other agreements (including any shareholders agreement) with joint venture partners, or any interest in any business enterprise outside the Ordinary Course of Business, including any agreements with financial advisors, brokers, finders or similar Persons relating to any of the foregoing;
(x) any Contract pursuant to which any Group Company may be required to issue any capital stock or other equity interest of a Group Company;
(xi) any Contract under which a third party or parties have put or similar rights exercisable against any Group Company that, if exercised, will require such Group Company to purchase capital stock or any other material assets or properties;
(xii) any mortgage, indenture, guarantee, bond, loan or credit agreement, security agreement or other Contract relating to indebtedness or extension of credit, other than trade receivables of any Group Company;
(xiii) any Contract (including purchase orders) that involves performance of services or delivery of goods or materials by or to any Group Company of an amount or value in excess of KRW 150,000,000 individually;
(xiv) any material dealer, distribution, joint marketing, joint venture, partnership, revenue sharing, merchant, strategic alliance, affiliate or development agreement or outsourcing arrangement outside of the Ordinary Course of Business of the Group Companies;
(xv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other Contract for use or distribution of the products or services, other than any agreement such Contract entered into in the Ordinary Course of Business that does not involve an amount or value in excess of KRW 150,000,000 individually;
(xvi) any Contract relating to the settlement of any Action since January 1, 2013;
(xvii) any nondisclosure, confidentiality or similar agreement, other than those entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(dxviii) any agreementContract with any credit card processor;
(xix) any Contract or arrangement, commitmentoral or otherwise, with a Government Entity, including any such Contract or outstanding purchase order relating arrangement with respect to capital expenditures rebate and refund policies of the Group Companies;
(xx) any license or licensing agreement of Intellectual Property, whether any Group Company is a licensor or licensee (except for any licenses for off the shelf software which is generally available on standard terms and has an aggregate acquisition value of KRW 150,000,000 or less); or
(xxi) any other Contract that involves total remaining payments by the Company of KRW 150,000,000 or more than $100,000individually and is not cancelable without penalty within sixty (60) days.
(eb) any agreement concerning True and complete copies (or in the case of an oral Contract, a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability summary of the Company material terms) of each Contract disclosed in the Disclosure Schedule or required to conduct business of any type be disclosed pursuant to this Section 2.15(b) (each, a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Investor or made available to Investor in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or virtual data room prior to the Closing);date of this Agreement.
(ic) Each Material Contract to which any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Group Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company a party is a valid and binding agreement of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the such Group Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, such Group Company in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Law laws affecting enforcement of creditors’ rights generally and by general principles of equity (including the rights possibility of creditors generally; (ii) unavailability of specific performance or injunctive relief). Each of the Company is Group Companies has not (with materially breached, violated or without defaulted under, or, since January 1, 2013, received written notice that it has materially breached, violated or defaulted under, any of the lapse terms or conditions of time or the giving of noticeany Material Contract, or both) in breach or default andnor, to the Knowledge of Trailblazer, is any party obligated to the Company, no other party Group Companies pursuant to such any Material Contract is in breach subject to any material breach, violation or default thereunder. To the Knowledge of Trailblazer, and there are no event has occurred circumstances or circumstance exists that conditions that, with the lapse of time, giving notice or both, would constitute a breach material breach, violation or default under any Material Contract by any Group Company. Other than as set forth on Section 2.15(c) of the Disclosure Schedule, no Group Company orhas waived any of its material rights under any Material Contract. Except as set forth on Section 2.15(c) of the Disclosure Schedule, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the CompanyTrailblazer’s Knowledge, no event Person is renegotiating, or has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification a right pursuant to the terms of any obligation or loss of Material Contract to renegotiate, any benefit under, result in services to be provided by any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Group Company under any such Material Contract or any other material term or provision of any Material Contract. No Group Company is party to any revenue sharing or merchant agreement that contains an exclusivity arrangement (other than Permitted Liens) nor has such merchant agreements entered into in the Ordinary Course of Business by the Group Company given or received written notice alleging the same; and (v) the other party thereto with exclusivity provisions applicable to the Material Contract has not repudiated in writing any portion of such Material Contractmerchant counterparty thereto).
Appears in 2 contracts
Sources: Investment Agreement, Investment Agreement (Groupon, Inc.)
Material Contracts. Schedule 5.13 lists (a) Except as set forth in Section 3.14(a) of the following written Disclosure Schedule, neither Company nor any of its Subsidiaries is a party to or bound by, as of the date hereof, any of the following:
(i) any contract or agreement entered into since January 1, 2013 (and any contract or agreement entered into at any time to the extent that material obligations remain as of the date hereof), other than in the ordinary course of business consistent with past practice, for the acquisition of the securities of or any material portion of the assets of any other Person or entity;
(ii) any trust indenture, mortgage, promissory note, loan agreement, mortgage loan purchase agreement, or other contract, agreement or instrument for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP, in each case, where Company or any of its Subsidiaries is a lender, borrower or guarantor other than agreements evidencing deposit liabilities, trade payables and contracts and or agreements relating to borrowings entered into in the ordinary course of business;
(iii) any contract or agreement limiting the freedom of Company or any of its Subsidiaries to engage in any line of business or to compete with any other written agreements Person or prohibiting Company from soliciting customers, clients or employees, in each case whether in any specified geographic region or business or generally;
(iv) any contract or agreement with any Affiliate of Company or its Subsidiaries;
(v) any agreement of guarantee, support or indemnification by Company or its Subsidiaries, assumption or endorsement by Company or its Subsidiaries of, or any similar commitment by Company or its Subsidiaries with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person other than those entered into in the ordinary course of business;
(vi) any agreement under which a payment obligation in excess of $50,000 would arise or be accelerated, in each case as a result of the announcement or consummation of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional acts or events);
(vii) any alliance, cooperation, joint venture, shareholders’ partnership or similar agreement involving a sharing of profits or losses relating to Company or any of its Subsidiaries;
(viii) any employment agreement with any employee or officer of Company or any of its Subsidiaries;
(ix) any broker, distributor, dealer, agency, sales promotion, customer or client referral, underwriter, administrative services, market research, market consulting or advertising agreement providing for annual payments by Company or its Subsidiaries of more than $30,000;
(x) any agreement, option or commitment or right with, or held by, any third party to acquire, use or have access to, any assets or properties, or any interest therein, of Company or its Subsidiaries, other than in connection with the sale of Loans, Loan participations or investment securities in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company;
(xi) any contract or agreement that contains any (A) exclusive dealing obligation, (B) “clawback” or similar undertaking requiring the reimbursement or refund of any fees, (C) “most favored nation” or similar provision granted by Company or any of its Subsidiaries or (D) provision that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any assets or business;
(xii) any material contract or agreement which would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement;
(xiii) any contract under which Company or any Company Subsidiary will have a material obligation with respect to an “earn-out,” contingent purchase price or similar contingent payment obligation, or any other material liability after the date hereof;
(xiv) any lease or other contract (whether real, personal or mixed, tangible or intangible) pursuant to which the Company is a party (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis annualized rent or lease payments for the fiscal lease year ended that includes December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales2016, as applicable, attributable to such supplier or customer, as applicablewere in excess of $30,000;
(bxv) any contract not listed above that is material to the financial condition, results of operations or business of Company or its Subsidiaries, including any contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities and Exchange Commission);
(xvi) any contract or agreement with respect to the performance by Company or its Subsidiaries of Loan servicing with any outstanding obligations that are material to Company or any of its Subsidiaries;
(xvii) any contract or group agreement that (A) grants Company or one of related agreementsits Subsidiaries any right to use any Intellectual Property (other than “shrink-wrap,” “click-wrap” or “web-wrap” licenses in respect of commercially available software) and that provides for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum30,000, (B) permits any third person to use, enforce or register any Intellectual Property, including any license agreements, coexistence agreements and covenants not to use or (C) restricts the right of Company or one of its Subsidiaries to use or register any Intellectual Property;
(cxviii) except for any contract or agreement that is a settlement agreement other than releases immaterial in nature or amount entered into in the Ordinary Course ordinary course of Business, any agreement (business with the former employees of Company or group its Subsidiaries or independent contractors in connection with the routine cessation of related agreements) for the purchase such employee’s or sale of supplies, products or other personal property, or for the furnishing or receipt of services;independent contractor’s employment; or
(dxix) any agreement, commitment, contract or outstanding purchase order relating agreement that involved or is expected to capital expenditures that involves total remaining payments by involve the Company payment of more than $100,000.
(e) any agreement concerning a partnership 50,000 by Company and its Subsidiaries in 2016 or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible 2017 (other than any such agreement that will be terminated at contracts which are terminable by Company or prior any of its Subsidiaries on sixty (60) days or less notice without any required payment or other conditions, other than the condition of notice). Each contract, arrangement, commitment or understanding of the type described in this Section 3.14(a) to which Company or any of its Subsidiaries is bound, whether or not set forth on Section 3.14(a) of the Closing);Disclosure Schedule, is referred to herein as a “Material Contract.”
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Each Material Contract is legal, valid, valid and binding on Company or its applicable Subsidiary and enforceable against the Companyin full force and effect, and, to the Knowledge of the Company, is valid and binding on the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse and each of time or the giving of notice, or both) in breach or default its Subsidiaries and, to the Knowledge of the Company, no each of the other party to such Material Contract is in breach or default thereunderparties thereto, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed in all material respects all obligations previously required to be performed by it to date under such each Material Contract; and (iviii) to the Company’s Knowledge, no event has occurred or circumstance condition exists that which constitutes or, after notice or lapse of time or both, would permit termination, cancellation, acceleration, suspension constitute a material breach or adverse modification default on the part of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities Company or any of its Subsidiaries or, to the properties or assets Knowledge of the Company Company, any other party thereto, under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Triumph Bancorp, Inc.)
Material Contracts. (i) Disclosure Schedule 5.13 lists 3.1(o)(i) contains an accurate and complete list of the following written contracts and other written agreements Contracts to which any of the Company or its Subsidiaries is a party or by which any of the Company or its Subsidiaries are bound that are or involve (collectivelyeach, the a “Material ContractsContract”):
(aA) any agreement with the ten largest suppliers and the ten twenty-five (25) largest customers of the Company (by dollar amount), each in September 2016 based on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableinvoiced monthly recurring revenue;
(bB) any agreement non-customer Contract with any Governmental Authority (or group of related agreementsother than Network Agreements);
(C) for the lease of personal property to or from each Network Agreement;
(D) any Person providing for lease payments Contract with any current employee that either (i) provides base compensation in excess of $100,000 per annum200,000 in any calendar year or (ii) entitles such employee to severance;
(cE) except for any agreement entered into non-employee sales representative or sales agent to the extent there has been aggregate compensation to such non-employee since January 1, 2016 (whether paid or accrued as of the date hereof) in the Ordinary Course excess of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services$75,000;
(dF) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party or other restriction that impairs the business as currently conducted, or which expressly restricts materially limits the ability of the Company to conduct business of any type or in any locationits business, including non-solicitation, non-competition and most-favored nation pricing restrictions, which are not terminable without payment by the Company on sixty (60) days’ notice;
(gG) any director or officer of any Seller, the Company, the Company’s Subsidiaries or any of their Affiliates (other than employment agreements with such Persons entered into in the ordinary course of business or plans or agreements set forth on Disclosure Schedule 3.1(p)(i));
(H) the granting of a Lien (other than a Permitted Lien) upon any material assets of the Company or its Subsidiaries, or a loan agreement, note, mortgage, indenture, security agreement, guaranty, pledge or other agreement relating to Indebtedness (other than intercompany indebtedness and guarantees and accounts receivable or accounts payable in the ordinary course and any performance bonds or other security set forth on Disclosure Schedule 3.1(l));
(I) the acquisition of an equity interest in, or of all or substantially all of the assets or business of, any other Person entered into on or after January 1, 2013;
(J) indemnification of any Person with respect to losses relating to any current or former business of the Company (other than standard indemnification provisions entered into in the ordinary course of business);
(K) a joint venture or partnership;
(L) any Lease;
(M) any Contract between the Company or any Subsidiary of the Company, on the one hand, and any Seller or any Affiliate of any Seller, on the other hand (including any Network Underlying Rights) (other than employment, equity, indemnification or service agreements entered into in the ordinary course of business consistent with past practice);
(N) any customer Contract involving an indefeasible right of use or similar right to use dark or lit Network Fiber involving an annual payment or amortized revenue totaling more than $100,000 (where not already set forth on Disclosure Schedule 3.1(o)(i));
(O) all Contracts under which the Company is lessee of or holds, uses or operates any tangible property (other than real property) that is owned by any other Person, other than such Contracts entered into in the ordinary course of business consistent with past practice and not in excess of $100,000 (the “Tangible Property Leases”) (where not already set forth on Disclosure Schedule 3.1(o)(i));
(P) all Contracts (other than customer Contracts) under which the Company is lessor of or permits any third party to hold, use or operate any tangible property (other than real property) owned or controlled by the Company, except for any Contract under which the aggregate annual rental payments do not exceed $100,000 and the total aggregate rental payments do not exceed $500,000; or
(Q) any agreement (i) relating to not made in the licensing by or to the Company ordinary course of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) business and (ii) that is material to the business of the Company;, except as otherwise listed in response to clauses (A) through (P) above.
(hii) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan Except as set forth on Disclosure Schedule 5.133.1(o)(ii), (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, Contracts are valid, binding and enforceable against the Company, Company in accordance with their terms and, to the Knowledge of the Company, the are valid, binding and enforceable against each other parties party thereto, and are in accordance with its termsfull force and effect. The Company has performed all material obligations imposed on it under such Material Contracts, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) and neither the Company nor any other party thereto is not (in material default thereunder, nor has there occurred any event that with notice or without the lapse of time or the giving of noticetime, or both, (a) in breach or would constitute a material default andby the Company or, to the Knowledge of the Company, no any other party thereunder, (b) would allow or give rise to such the limitation, revocation, modification, or termination of any Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that (c) would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any impairment of the Company’s securities or any of the properties or assets rights of the Company under any such Material Contract (other than Permitted Liens) Contract; nor has the Company given or any Subsidiary received written any notice alleging regarding the same; and matters described in (va) the through (c). There is no pending disagreement or dispute with any other party to the any Material Contract, nor is there any pending request or process for amendment of any Material Contract. Accurate and complete copies of each written Material Contract (and written summaries of the terms of any oral Material Contract) have been made available to Buyer. The Company has not repudiated in writing received any portion of notification that any party to a Material Contract intends to cancel, terminate, materially modify, or refuse to perform such Material Contract, or any written notification that a party intends to refuse renew such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Zayo Group LLC), Merger Agreement (Zayo Group LLC)
Material Contracts. (a) Neither the Company, its Subsidiaries, nor, to the knowledge of the Company, any other party, is in material default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Material Contracts to which it is a party; and, to the knowledge of the Company, there has not occurred any event that, with the lapse of time or giving of notice or both, could constitute such a material default under any Material Contract. Each of the Material Contracts is enforceable against the Company or applicable Subsidiary of the Company in accordance with its terms and, to the Company’s knowledge, is enforceable against other parties to such Material Contract in accordance with its terms.
(b) Section 3.15(b) of the Company Disclosure Schedule 5.13 lists sets forth a list as of the following written contracts date of this Agreement of
(i) all Contracts or letters of intent entered into after January 1, 2008, and all currently effective Contracts entered into before that date, regarding the acquisition of a Person or business, whether in the form of an asset purchase, merger, consolidation or otherwise to which the Company or any Subsidiary of the Company is a party;
(ii) all currently effective credit agreements, indentures, mortgages, security agreements and other written agreements Contracts related to any indebtedness for borrowed money of the Company or any of its Subsidiaries;
(iii) all joint venture or other similar Contracts to which the Company or any Subsidiary of the Company is a party;
(iv) all currently effective Contracts (including related Contracts) under which the Company or any Subsidiary of the Company has advanced or loaned or agreed to advance or loan to any other Person (together with such Person’s Related Persons) $75,000 or more;
(v) all currently effective guarantees by the Company or any Subsidiary of the Company of any obligations or liabilities of any other Person;
(vi) all Contracts or groups of related Contracts to which the Company or any of its Subsidiaries is a party the performance of which (i) since January 1, 2010 involved annual payments or receipts by the Company and its Subsidiaries of an aggregate amount in excess of $75,000, or would reasonably be expected to involve payments or receipts by the Company and its Subsidiaries after December 31, 2010 of an aggregate amount in excess of $75,000, and (ii) are not cancelable by the Company or any of its Subsidiaries on 60 days’ or less notice without premium or penalty;
(vii) all currently effective exclusive sales representative Contracts to which the Company or any Subsidiary of the Company is a party;
(viii) all currently effective Contracts under which the Company or any Subsidiary of the Company has granted any Person registration rights (including demand and piggy-back registration rights);
(ix) all currently effective Contracts purporting to restrict or prohibit the Company or any Subsidiary of the Company from engaging or competing in any business or engaging or competing in any business in any geographic area;
(x) all currently effective labor agreements, collective bargaining agreements or other labor related Contracts (including work rules and practices) to which the Company or any Subsidiary is a party with respect to any labor union, labor organization, trade union, works council or similar organization or association of employees;
(xi) all currently effective IP Contracts to which the Company or any Subsidiary of the Company is a party (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially standard license agreements for commercially-available, off-the-shelf softwaresoftware having an acquisition price of less than $75,000 in the aggregate for each such software product or group of related software products;
(xii) and (ii) that is material to any Contract which provides for termination, acceleration of payment or other special rights upon the business occurrence of a change in control of the Company or any Subsidiary of the Company;
(hxiii) each Contract to which the Company or any Subsidiary is a party with any Governmental Entity;
(xiv) any Contract that is currently effective or that was executed after January 1, 2008 which provides for the purchase, sale or exchange of, or option to purchase, sell or exchange any real property to which the Company or any Subsidiary of the Company is a party;
(xv) any currently effective Contract relating to the development or construction of, or additions or expansions to, any real property that would cause the Company and its Subsidiaries to exceed the capital budget for such property listed in Section 3.15(b)(xv) of the Company Disclosure Schedule;
(xvi) any Contract relating to the operation or management of any Owned Real Property or any Leased Real Property to which the Company or any Subsidiary of the Company is a party;
(xvii) any hotel or other management agreement or franchise agreement to which the Company or any Subsidiary of the Company is a party;
(or group of related agreementsxviii) any Contract under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing of its Subsidiaries has agreed not to bring Litigation against any Person or under which any Person has agreed not to bring any Litigation against the Company has imposed a Lien (other than a Permitted Lien) on or any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing)Subsidiaries;
(ixix) any agreement with Contract relating to Material Artwork to which the Company or any Affiliate Subsidiary of the Company (other than any such agreement that will be terminated at or prior to the Closing)is a party;
(jxx) any agreement, plan or arrangement by which all Contracts obligating the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by Subsidiary of the Company to indemnify any current or former director, officer, partner, member, trustee or employee of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice or any Subsidiary of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay moneyCompany; and
(mxxi) any all other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, Contracts which has future required payments are material to or by the Company and its Subsidiaries taken as a whole. The Contracts referenced in excess of $100,000 per annum and is not terminable by this Section 3.15(b) are referred to herein collectively as the Company upon notice of sixty days or less without substantial cost or penalty“Material Contracts”). The Company has made available furnished to Buyer an accurate Parent a correct and complete, in all material respects, complete copy of each Material Contract. With respect For purposes of this Agreement, a Contract will be considered to each be currently effective if any Person currently has or in the future may have any right, remedy, benefit, obligation or liability thereunder.
(c) No Material Contract: Contract will, by its terms, (i) such Material Contract is legalterminate or accelerate as a result of the transactions contemplated hereby or (ii) require any consent from any party thereto in order to remain in full force and effect immediately after the Effective Time.
(d) Section 3.15(d) of the Company Disclosure Schedule (i) lists all currently effective Contracts pursuant to which any Person has a right to a payment from the Company or any of its Subsidiaries based upon any current or future franchise, validmanagement, binding and enforceable against the Company, and, incentive or other fee earned by or paid to the Knowledge Company or any of its Subsidiaries and (ii) identifies the specific current or future property or properties to which the Contract relates and the amount of the fee to which such Person has a right pursuant to the Contract.
(e) Section 3.15(e) of the Company Disclosure Schedule sets forth a list, as of the date of this Agreement, of all agreements of the Company or its Subsidiaries with any executive officer or director of the Company or its Subsidiaries. No officer or director of the Company, its Subsidiaries, or any “associate” (as such term is defined in Rule 14a-1 under the other parties theretoExchange Act) of any such officer or director, has any interest in accordance with its termsany contract or property (real or personal, except as enforcement may be limited by applicable bankruptcytangible or intangible), insolvencyused in, reorganization, moratorium or similar Law affecting pertaining to the rights business of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that its Subsidiaries which interest would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously be required to be performed disclosed pursuant to Item 404(a) of Regulation S-K promulgated by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractSEC.
Appears in 2 contracts
Sources: Purchase Agreement (Hospitality Properties Trust), Merger Agreement (Sonesta International Hotels Corp)
Material Contracts. Schedule 5.13 Section 2.21 of the Company Disclosure Letter lists each of the following written contracts and other written agreements Contracts to which the Company or any of its Subsidiaries is currently a party or by which the Company or any of its Subsidiaries is currently bound (collectivelyeach, the a “Material ContractsContract”):
(a) any agreement with the ten largest suppliers each advertising, agency, manufacturer’s representative, joint marketing, joint development and the ten largest customers joint venture Contract involving annual consideration of the Company more than $100,000 (by dollar amountincluding royalty payments), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any the top eight supply Contracts, excluding purchase orders;
(c) each value added reseller, reseller or third-party sales affiliate Contract that cannot be terminated upon 30 days’ notice without penalty or payment;
(d) the top 15 customer Contracts based on revenues to the Company involving photovoltaic projects not completed prior to the date hereof;
(e) each trust indenture, mortgage, promissory note, loan agreement (or group of related agreements) other Contract for the lease borrowing of personal property to money, any currency exchange, commodities or from other hedging arrangement or any Person providing for leasing transaction requiring lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into 25,000 annually of the type required to be capitalized in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint ventureaccordance with GAAP;
(f) any agreement containing a covenant not to compete granted by each Contract for capital expenditure in excess of $50,000 individually or $500,000 in the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any locationaggregate;
(g) any agreement (i) relating to the licensing by or to each Contract in accordance with which the Company or any of Business Intellectual Property Rights (its Subsidiaries is a lessor or lessee of any machinery, equipment, motor vehicles, office furniture, fixtures or other than licenses personal property requiring rental payments in excess of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company$50,000 annually;
(h) each license or other Contract providing rights to, or based upon, any agreement Company IP, other than non-exclusive licenses in connection with the sale of inventory or provision of services in the ordinary course of business;
(or group of related agreementsi) under which each Contract with any Person with whom the Company has incurredor any of its Subsidiaries does not deal at arm’s length, assumed other than those Contracts listed in Section 2.10(a) of the Company Disclosure Letter;
(j) each agreement of guarantee, support, indemnification, assumption or guaranteed endorsement of, or any Indebtedness similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person (other than Intercompany Obligationsa Subsidiary of the Company);
(k) or any agreement evidencing each government grants Contract for which the research and development work undertaken thereunder is still continuing or under which the Company has imposed a Lien (other than a Permitted Lien) on or any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior Subsidiaries continue to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business)obligations;
(l) each Contract relating to the disposition or acquisition of assets or any settlement, conciliation or similar agreement entered by interest in any Governmental Authority whereby business enterprise outside the Company is under an obligation to perform activities, refrain from activities and/or pay moneyordinary course of the Company’s business; andor
(m) any other agreementeach Contract requiring payment of royalties, contractpayment as a result of and upon consummation of the transactions contemplated hereby, leaseor payment of an “earn-out.” All Material Contracts are in executed written form, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by and the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company applicable Subsidiary has performed all material of the obligations previously required to be performed by it under such Material Contract; (iv) and is entitled to all benefits under, and, to the Company’s Knowledgeknowledge, no event has occurred or circumstance exists that would permit terminationis not alleged to be in default in respect of, cancellationany Material Contract. Each of the Material Contracts is in full force and effect, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due underand the Company, or result in the imposition of any Lien on any applicable Subsidiary, and to the knowledge of the Company’s securities or , any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to each Material Contract, are not in default of any Material Contract as of the date here. Following the Effective Time, the Surviving Company and each of its Subsidiaries will be permitted to exercise all of their rights under the Material Contract has not repudiated Contracts without the payment of any additional amounts of consideration other than ongoing fees, royalties or payments that the Company and any of its Subsidiaries would otherwise be required to pay in writing any portion accordance with the terms of such Material ContractContracts had the transactions contemplated by this Agreement not occurred.
Appears in 2 contracts
Sources: Merger Agreement (Sunpower Corp), Merger Agreement (Sunpower Corp)
Material Contracts. Schedule 5.13 lists the following written contracts and other written agreements to which the Company is a party (collectively, the “Material Contracts”):
(a) any agreement Except for this Agreement, the Company Benefit Plans or as filed with the ten largest suppliers and the ten largest customers Filed SEC Reports in unredacted form with any material omitted schedules Made Available to Parent, Section 3.12(a) of the Company Disclosure Letter sets forth a true and complete list (by dollar amountexcluding any purchase orders or sales orders), as of the date of this Agreement, and the Company has Made Available to Parent true and complete copies, of the following:
(i) each Company Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Company Contract involving a material joint venture, strategic alliance, partnership, sharing of profits or revenue or similar Contract establishing any material research and development collaboration, except for such Contracts entered into in the ordinary course of business;
(iii) each Company Contract for any capital commitment, capital loan or capital expenditure over the remaining life of such Company Contract in excess of $3,500,000 that is not included in the Company’s capital expenditure budget set forth in Section 3.12(a)(iii) of the Company Disclosure Letter;
(iv) each Company Contract entered into at any time since January 1, 2022: (A) governing the disposition or acquisition by any Acquired Company of any business, product line or other assets outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) for consideration in excess of $3,000,000 or (B) pursuant to which any Acquired Company will acquire any interest, or will make an investment (other than short-term investments including money market funds, bank deposits, commercial paper and other money market instruments as disclosed in the Company Balance Sheet or the notes thereto, or incurred in the ordinary course of business since the date of the Company Balance Sheet) for consideration in excess of $3,000,000 in any other Person (other than another Acquired Company);
(v) each Company Contract governing the disposition or acquisition by any Acquired Company of any material business, material product line or other material assets or equity securities (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) with material remaining guarantee, “earn out”, or similar contingent payment or obligations on the part of any Acquired Company;
(vi) each Company Contract that by its terms (A) limits the ability of any Acquired Company to engage in any line of business or compete with any other Person or in any geographic area; (B) grants material exclusive rights in favor of any third party, including material exclusive rights to market, sell or deliver any Company Product; (C) contains any material “most favored nation” or similar material provision in favor of the counterparty for a consolidated basis Company Product; or (D) contains a right of first refusal, first offer or first negotiation or any similar right with respect to any material asset owned by an Acquired Company, except, in each case, for any such Contract that may be cancelled without penalty by the Acquired upon notice of sixty (60) days or less;
(vii) each Company Contract for the marketing, sale, licensing or distribution of any Company Product under which payments in excess of $5,000,000 were made to the Acquired Companies, as a whole, in the fiscal year ended December 31, 2010 and setting forth 2023, or are reasonably expected to be made to the approximate dollar amount and Acquired Companies in the approximate percentage of consolidated gross purchases or consolidated gross salesfiscal year ended December 31, as applicable, attributable to such supplier or customer, as applicable2024;
(bviii) any agreement (or group of related agreements) each Company Contract for the purchase, sale or lease of personal property to goods or from any Person providing for lease services (including contract manufacturing), materials, supplies or equipment, under which payments in excess of $100,000 per annum5,000,000 were made by the Acquired Companies, as a whole, in the fiscal year ended December 31, 2023, or are reasonably expected to be made by the Acquired Companies in the fiscal year ended December 31, 2024;
(cix) except for any agreement entered into each Company Contract pursuant to which an Acquired Company has continuing obligations or interests involving (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones, in each case in excess of $3,000,000 of future payments in the Ordinary Course aggregate, or (B) payment of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products royalties or other personal propertyamounts calculated based upon any revenues or income of any Acquired Company, or for in each case in excess of $3,000,000 of future payments in the furnishing or receipt of servicesaggregate;
(dx) each settlement, conciliation or similar Company Contract arising out of a Legal Proceeding or threatened Legal Proceeding: (A) that materially restricts or imposes any agreement, commitment, material obligation on any Acquired Company or outstanding purchase order relating materially disrupts the business of any of the Acquired Companies as currently conducted or (B) that would require any of the Acquired Companies to capital expenditures that involves total remaining payments by the Company of pay consideration valued at more than $100,000.
(e) any agreement concerning a partnership or joint venture2,500,000 in the aggregate following the date of this Agreement;
(fxi) any agreement containing Company Contract (A) pursuant to which an Acquired Company grants a third party a license, covenant not to compete sue or other similar right under any material Company IP, other than non-exclusive licenses granted by to customers, distributors, resellers, or Acquired Company service providers in the Company in favor ordinary course of business, (B) pursuant to which a third party that impairs the business as currently conductedgrants an Acquired Company a license, covenant not to sue or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating other similar right under Intellectual Property Rights material to the licensing by or to the Company Acquired Companies’ businesses, taken as a whole, other than non-exclusive licenses of Business generally commercially available Intellectual Property Rights (other than licenses of commercially available, including for off-the-shelf software), or (C) and (ii) that is pursuant to which any Intellectual Property Rights material to the business of the CompanyAcquired Companies, taken as a whole, have been developed on behalf of the Acquired Companies, other than by (1) employees or (2) contractors who assigned all of their right, title and interest in and to such Intellectual Property Rights to one or more of the Acquired Companies;
(hxii) each Company Contract with any Governmental Entity reasonably expected to involve payments to the Company exceeding $2,500,000 during the twelve (12) months ended December 31, 2024;
(xiii) each Company Contract that is a collective bargaining agreement or other Contract with any labor union, labor or trade organization, works council or other employee representative body;
(xiv) each material stockholders’, investors rights’, registration rights or group of related agreements) under similar Contract to which the Company has incurred, assumed or guaranteed any Indebtedness Subsidiary of the Company is a party (other than Intercompany Obligationsthe organizational documents of wholly owned Subsidiaries of the Company);
(xv) each Contract with or binding upon the Company, any Subsidiary of the Company or any agreement evidencing of their respective properties or assets that is of the type that would be required to be disclosed under which Item 404 of Regulation S-K under the Securities Act;
(xvi) each hedging, derivative or similar Contract (including interest rate, currency or commodity swap agreements, cap agreements, collar agreements and any similar Contract designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices);
(xvii) any Company has imposed Contract relating to (A) a Lien financial guaranty of any Person by any Acquired Company or (other than a Permitted LienB) on any the incurrence of its assetsindebtedness of the Acquired Companies for borrowed money, tangible in each case, in excess of $5,000,000 (whether outstanding or intangible as may be incurred thereunder) (other than any such agreement that will be terminated at or prior indebtedness owed to the Closing(and any financial guaranty of indebtedness by an Acquired Company in favor of) another Acquired Company);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(mxviii) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, Leases. Each Contract of the type described in each case not included in clauses (athis Section 3.12(a) through (l) above, which has future required payments is referred to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each herein as a “Material Contract. With respect .”
(b) Except as has not had, and 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 Material Contract: (i) such Material Contract is legal, in full force and effect and is valid, binding and enforceable in accordance with its terms against each Acquired Company which is a party thereto, subject to the Enforceability Exceptions and assuming the validity, binding nature and enforceability against the Company, counterparty or counterparties thereto and, to the Knowledge of the Company, each other party thereto. As of the other parties thereto, in accordance with its termsdate of this Agreement, except as enforcement may has not had, and would not reasonably be limited by applicable bankruptcyexpected to have, insolvencyindividually or in the aggregate, reorganizationa Company Material Adverse Effect, moratorium or similar Law affecting none of the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticeAcquired Companies, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach Person, has violated or breached, or committed any default thereunder, under (and no event has occurred that with the lapse of time or circumstance exists that the giving of notice or both would constitute a breach or default by the Company orunder), to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Inari Medical, Inc.)
Material Contracts. Schedule 5.13 lists the following written contracts and other written agreements to which the Company is a party (collectively, the “Material Contracts”):
(a) any agreement Except as set forth in Schedule C.10 and except for Contracts that do not constitute Boeing Contributed Assets or Boeing Assumed Liabilities, Boeing and its Subsidiaries, with the ten largest suppliers and the ten largest customers of the Company (by dollar amount)respect to Boeing’s ELV Business, each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property are not parties to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing otherwise bound by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);subject to:
(i) any written employment, severance, consulting or sales representative Contract that contains an obligation (excluding commissions) to pay more than $50,000 per year, any collective bargaining agreement or other agreement with a labor union or any Affiliate of the Company (other than any such agreement that will be terminated at contains an obligation either to employ a specified number of employees or prior to the Closing)make a payment to any other Person in lieu thereof;
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by Contract containing any covenant limiting the freedom of Boeing or any of its Subsidiaries, in respect of Boeing’s ELV Business or the operations of Boeing’s ELV Business, to compete with any Person in any geographic area in any material respect if such Contract will be binding on the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by after the Company upon notice of 60 days or less without material cost or penalty, or Closing;
(iii) any oral Contract requiring Boeing’s ELV Business to “at willtake or pay” employment arrangementsfor a minimum number or volume of goods, or to purchase a minimum number or volume of goods used in the manufacture of ELV Systems in excess of requirements under applicable customer Contracts or otherwise guaranteeing any of the foregoing;
(kiv) any agreement under which Contract in effect on the Company has advanced date of this Agreement relating to the disposition or loaned acquisition of the assets of, or any amount interest in, any business enterprise that relates to any employee (Boeing’s ELV Business other than advances in the Ordinary Course ordinary course of Business)business;
(lv) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; andFinancial Support Arrangements;
(mvi) any other agreementindebtedness for borrowed money of Boeing’s ELV Business that would constitute a Boeing Assumed Liability if in existence on the Closing Date, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company with a principal amount in excess of $100,000 per annum 100,000;
(vii) any Contract (it being understood that for purposes of this representation, a purchase order issued under an existing master agreement will not constitute a separate Contract) with a supplier, vendor, or subcontractor with an aggregate contract value in excess of $10,000,000;
(viii) any teaming agreement or partnership, joint venture or similar agreement; or
(ix) any Contract with a foreign Governmental Authority.
(b) Schedule C.10 sets forth any Contract (other than a Government Contract) with a customer to which Boeing or any of its Subsidiaries is a party or otherwise bound for the provision of Launch Services using ELV Systems with an aggregate contract value in excess of $50,000,000.
(c) Except as disclosed in Schedule C.10, each Contract disclosed in Schedule C.10 or Schedule C.07 is in full force and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate effect and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is constitutes a legal, valid, valid and binding and obligation of Boeing (or the applicable Affiliated Transferor) enforceable against Boeing (or the Company, and, to the Knowledge of the Company, the other parties thereto, applicable Affiliated Transferor) in accordance with its terms, terms (except as enforcement enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Law laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the rights effect of creditors generally; statutory and other laws regarding fraudulent conveyances and preferential transfers, and subject to the limitations imposed by general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity), and Boeing (iior the applicable Affiliated Transferor) the Company is not (with or without the lapse of time or the giving of noticein default and has not failed to perform any obligation thereunder, or both) in breach or default and, to the Knowledge knowledge of the CompanyBoeing, no other party to such Material Contract is in breach there does not exist any event, condition or default thereunder, and no event has occurred or circumstance exists omission that would constitute a breach or default (whether by the Company or, to the Company’s Knowledge, lapse of time or notice or both) by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s KnowledgePerson, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under except for any such Material Contract (other than Permitted Liens) nor has the Company given default, failure or received written notice alleging the same; and (v) the other party to the Material Contract breach as has not repudiated in writing any portion of such had, and could not reasonably be expected to have, a Material ContractAdverse Effect on Boeing’s ELV Business.
Appears in 2 contracts
Sources: Joint Venture Master Agreement (Lockheed Martin Corp), Joint Venture Master Agreement (Boeing Co)
Material Contracts. (a) Except for those agreements filed as exhibits to the Buyer SEC Reports and those agreements set forth on Section 5.9(a) of the Buyer Disclosure Schedule 5.13 lists the following written contracts and other written agreements to which the Company is a party (collectively, the “Buyer Material ContractsAgreements”), none of the Buyer Group Entities is a party to, or is bound by, any agreements, contracts or commitments (whether written or oral):
(ai) any agreement with the ten largest suppliers and the ten largest customers which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company (by dollar amountSEC), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(bii) which constitutes a contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $10,000,000;
(iii) which contains any provision that prior to or following the Effective Time would materially restrict or alter the conduct of business of, or purport to materially restrict or alter the conduct of business of, whether or not binding on, Buyer or any controlled Affiliate of Buyer, including by materially restricting the disposition of any business or assets;
(iv) which is a lease or license (whether of real, personal or intangible property) providing for annual rentals or fees of $2,000,000 or more that cannot be terminated by any Buyer Group Entity on not more than 60 days’ notice without payment by such Buyer Group Entity of any material penalty;
(v) which is an agreement (or group of related agreements) for the lease purchase of personal property to materials, supplies, goods, services, equipment or from other assets that in each case both (A) cannot be terminated by any Person providing for lease Buyer Group Entity on not more than 60 days’ notice without payment by any of Buyer Group Entity of any material penalty and (B) involves annual revenues or payments in excess of $100,000 per annum10,000,000;
(vi) which is a partnership, joint venture or other similar agreement or arrangement;
(vii) which is a contract relating to the acquisition or disposition of any business or assets (whether by merger, sale of stock, sale of assets or otherwise) with a purchase price of $10,000,000 or more;
(viii) any contract that relates to any commodity or interest rate swap, cap or collar or other similar hedging or derivate transactions, other than any contract for purchase and sale of commodities and the associated hedging instruments entered into in the ordinary course of business consistent with past practice;
(ix) any contract relating to the gathering, processing, treating, transportation, storage, sale or purchase of natural gas, condensate or other liquid or gaseous hydrocarbons or the products therefrom, or the provision of services related thereto (including any operation, operation servicing or maintenance contract) in each case that involves annual revenues or payments in excess of $10,000,000; or
(x) any contract relating to the construction of capital assets or other capital expenditures in each case that involves annual revenues or payments in excess of $10,000,000.
(b) Except to the extent that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a Proceeding in equity or at law); provided, however, that any indemnity, contribution and exoneration provisions contained in any such Buyer Material Agreement may be limited by applicable Law and public policy, each of the Buyer Material Agreements (i) constitutes the valid and binding obligation of the applicable Buyer Group Entity and, to the knowledge of the Buyer Parties, constitutes the valid and binding obligation of the other parties thereto, (ii) is in full force and effect as of the Execution Date, and (iii) will be in full force and effect upon the consummation of the transactions contemplated by this Agreement, in each case unless the failure to be so would not constitute, individually or in the aggregate, a Buyer Material Adverse Effect.
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that There is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, andnot, to the Knowledge of any of the CompanyBuyer Parties, the other parties theretounder any Buyer Material Agreement, in accordance any default or event which, with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium notice or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticeboth, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by on the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification part of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities parties thereto, except such events of default and other events as to which requisite waivers or any of consents have been obtained or which would not constitute, individually or in the properties or assets of the Company under any such aggregate, a Buyer Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Inergy L P), Merger Agreement (Inergy Midstream, L.P.)
Material Contracts. Schedule 5.13 7.14 lists the following written contracts and other written agreements to which each of the Company is a party (collectivelyMaterial Contracts required to be transferred pursuant to Section 9.2.2. Schedule 7.14 lists, with regard to the “Material Contracts”):
Acquired Companies or Company Employees, each oral or written (a) agreement, contract, indenture, or other instrument relating to the borrowing of money or the guarantee of any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis obligation for the fiscal year ended December 31borrowing of money, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any employment agreement (or group with an individual requiring payments of related agreements) for the lease of personal property to or from any Person providing for lease payments compensation in excess of $100,000 per annum;
year, (c) except for any material distributor, purchase or supply agreement entered into in which is not terminable after the Ordinary Course of Business, any agreement Closing by an Acquired Company without Liability on thirty (30) days (or group of related agreementsless) for the purchase or sale of suppliesnotice, products or other personal property, or for the furnishing or receipt of services;
(d) any joint venture or similar contract or agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) contract or agreement that limits or purports to limit the ability of any agreement concerning a partnership Acquired Company to compete in any line of business or joint venture;
in any geographic area, (f) any material contract or agreement containing a covenant not to compete granted by between or among any Acquired Company on the Company in favor of a third party that impairs one hand and ConAgra or its other Subsidiaries on the business as currently conductedother hand, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) collective bargaining or labor agreement, or industrial instrument, (h) lease of real property pursuant to which any agreement Acquired Company is required to pay or is entitled to receive (x) consideration in excess of $50,000 in any calendar year after December 31, 2001, or (y) consideration in excess of $250,000 in the aggregate over the remaining term of such lease (collectively, the "Leases"), or (i) relating to the licensing by other material contract, agreement or to the Company of Business Intellectual Property Rights (arrangement, entered into other than licenses in the ordinary course of commercially available, off-the-shelf software) business. The contracts required to be so listed pursuant to this Section 7.14 or pursuant to Section 7.17 are collectively referred to herein as the "Company Material Contracts." Each Company Material Contract is a valid and (ii) binding obligation of the Acquired Company that is material to the business of the Company;
(h) any agreement (a party thereto or group of related agreements) under which the Company has incurredotherwise bound thereby, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company and is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan in full force and effect without further amendment. Except as set forth on Schedule 5.137.14, (ii) any agreements the Acquired Company that either (A) require future payments is bound by the each Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the CompanyConAgra, the each other parties party thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in material breach or default thereunder. In respect to Company Material Contracts to be assigned pursuant to Section 9.2.2, the assignor is bound by each such Company Material Contract and, to the Knowledge of the CompanyConAgra, no each other party to such Material Contract thereto, is not (with or without lapse of time or the giving of notice, or both) in material breach or default thereunder. No Acquired Company has received (i) any notice, and no event has occurred written or circumstance exists that would constitute a breach or otherwise, of default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Acquired Company under any such Company Material Contract or (ii) any notice, written or otherwise, that any other than Permitted Liensparty to any such Company Material Contract has terminated or cancelled, or intends to terminate or cancel, such contract. Schedule 7.14 identifies, as to each Company Material Contract listed thereon, whether (A) nor has the consent or the approval of any other party thereto is required in order for such Company given or received written notice alleging Material Contract to continue in full force and effect upon the same; consummation of the transactions contemplated hereby and by the other Transaction Documents, (vB) such Company Material Contract can be cancelled by the other party without Liability to such other party due to the consummation of the transactions contemplated in the Transaction Documents or (C) a right of first refusal, right of first offer, right of redemption or similar right or obligation would be triggered due to the consummation of the transactions contemplated hereby and by the other Transaction Documents. A copy of each written Company Material Contract and a description of each oral Company Material Contract has not repudiated been made available to Acquisition LP. No Acquired Company has any obligation for borrowed funds other than as reflected in writing any portion of such the Financial Statements and except as contemplated herein. Each Acquired Company has valid, binding, and enforceable leasehold interests in and to the properties covered under lease that is a Company Material Contract, free and clear of all Liens. The Leases are not subject to any payment default or other material default.
Appears in 2 contracts
Sources: Joint Venture Agreement (Conagra Foods Inc /De/), Joint Venture Agreement (S&c Resale Co)
Material Contracts. (a) Section 5.14 of the Company Disclosure Schedule 5.13 lists sets forth, as of the following written contracts Execution Date, a complete and accurate list of any Contract that the Company or any of its Subsidiaries is a party to or bound by that:
(i) relates to (A) the purchase of materials, supplies, goods, services, real property or other written assets or (B) the construction of capital assets and that, in the case of clause (A), (1) provides for (x) payments by the Company or any of its Subsidiaries in excess of $750,000, calculated on an annualized basis or (y) aggregate payments by the Company or any of its Subsidiaries in excess of $1,500,000, calculated on an annualized basis, and (2) cannot be terminated by the Company or any of its Subsidiaries on 90 days or less notice without payment by the Company of any penalty or fee;
(ii) is an agreement for the furnishing of services by the Company or any of its Subsidiaries to any of its customers that involves a binding commitment by such customer with aggregate payments to the Company or its Subsidiaries in excess of $750,000, calculated on an annualized basis;
(iii) contains any (A) provision or covenant, which after the Closing will apply to the Business, restricting the Company or any of its Affiliates from engaging in any lawful business activity or competing with any Person, other than customary non-solicitation agreements contained in confidentiality agreements or (B) minimum commitment, exclusivity or “most favored nation” provisions;
(iv) is a lease or sublease of Tangible Personal Property involving, or expected to involve, aggregate payments by the Company or any of its Subsidiaries in excess of $250,000 in any calendar year;
(v) is an indenture, mortgage, promissory note, loan agreement, guaranty or other Contract or relates to the creation, incurrence, assumption, or guarantee of any Indebtedness for borrowed money by the Company or any of its Subsidiaries, or evidences a Capitalized Lease;
(vi) that grants any third Person, or obligates the Company or any of its Subsidiaries to exercise, an option or other preferential right to purchase, sell, lease, encumber or transfer any right, title or interest in and to any material property, including any property of the Company or any of its Subsidiaries;
(vii) (A) relating to the acquisition, issuance, voting, registration, sale, or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance, or any similar right with respect to any securities, or (C) providing the Company or any of its Subsidiaries with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(viii) providing for indemnification of any officer, director, employee, or agent;
(ix) pursuant to which the Company or any of its Subsidiaries has any potential continuing indemnification obligations in excess of $750,000;
(x) relates to any commodity or interest rate swap, cap or collar agreements, or other similar hedging or derivative transactions;
(xi) is in respect of the formation of any partnership or joint venture or otherwise relates to the joint ownership or operation of the assets owned by the Company or any of its Subsidiaries;
(xii) any Contracts between the Company or any of its Subsidiaries, on the one hand, and any Affiliate of the Company or any of the Stockholders, on the other hand;
(xiii) is an acquisition, merger or similar Contract or other Contract relating to the acquisition or disposition of equity interests or material assets of any Person (other than Contracts in respect of the purchase of assets in the ordinary course of business that, individually and in the aggregate, are not material);
(xiv) relates to the licensing, distribution, development, purchase or sale of Owned Intellectual Property or Licensed Intellectual Property, including, without limitation, technology consulting agreements, coexistence agreements, consent agreements and nonassertion agreements (excluding unmodified “off-the-shelf” software licensed to the Company or any of its Subsidiaries on generally standard terms or conditions involving consideration of less than $50,000, including purchase orders);
(xv) is a party management, consulting, independent contractor, or employment agreement;
(xvi) is a security agreement, pledge, mortgage, deed of trust or other agreement granting a Lien on any owned material property or assets of the Company or any of its Subsidiaries;
(xvii) otherwise involves the payment by or to the Company or any of its Subsidiaries of more than $750,000 in any 24-month period and cannot be terminated by the Company or any of its Subsidiaries on 45 days or less notice without payment by the Company or any of its Subsidiaries of any penalty or fee;
(xviii) any outstanding powers of attorney empowering any Person to act on behalf of the Company or any of its Subsidiaries;
(xix) 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 if such item were applicable to the Company; and
(xx) any other Contract, if a breach or termination of such Contract could have a Company Material Adverse Effect; and
(xxi) any other Contract material to the Business not entered into in the ordinary course of business.
(b) Each Contract required to be disclosed pursuant to Section 5.14(a) (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers is a valid and the ten largest customers binding obligation of the Company (by dollar amount)or one of its Subsidiaries, each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount is in full force and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments effect and enforceable in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by accordance with its terms against the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any one of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, Subsidiaries and, to the Knowledge of the Company, the other parties thereto; provided, in accordance with its termshowever, except that the Company makes no representation or warranty, express or implied, as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium to the enforceability of any (i) non-competition or similar Law affecting the rights of creditors generally; other restrictive covenant or (ii) indemnification obligation, in each case, set forth in the Material Contracts. The Company is not has provided or made available to the Parent a true and complete copy of each Material Contract.
(with or without c) Neither the lapse Company, any of time or the giving of notice, or both) in breach or default andits Subsidiaries nor, to the Knowledge of the Company, no any other party to such any Material Contract is in default or breach or default thereunder, in any material respect under the terms of any Material Contract and no event has occurred that with the giving of notice or circumstance exists that the passage of time or both would constitute a breach or default in any material respect by the Company or any of its Subsidiaries or, to the Knowledge of the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required party to be performed by it under such any Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellationmodification or acceleration under any Material Contract.
(d) Neither the Company nor any of its Subsidiaries nor, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in to the imposition of any Lien on any Knowledge of the Company’s securities , any other party to any Material Contract has received any written notice or threat to terminate, cease performance of or amend in a manner adverse to the Company or any of the properties or assets of the Company under its Subsidiaries, any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (C&J Energy Services, Inc.)
Material Contracts. (a) Schedule 5.13 lists 4.12(a) sets forth a true, correct and complete list of, and the following Company has made available to SPAC (including written contracts summaries of oral Contracts), true, correct and other written agreements complete copies of, each Contract to which the any LLP Company is a party or by which any LLP Company, or any of its properties or assets are bound (collectivelyeach Contract required to be set forth on Schedule 4.12(a), the a “Company Material ContractsContract”):) that:
(ai) contains covenants that limit in any agreement with material respect the ten largest suppliers and the ten largest customers ability of the any LLP Company (by dollar amount)A) to compete in any line of business or with any Person or in any geographic area or to sell, each on a consolidated basis for the fiscal year ended December 31or provide any service or product or solicit any Person, 2010 including any non-competition covenants, employee and setting forth the approximate dollar amount and the approximate percentage customer non-solicit covenants, exclusivity restrictions, rights of consolidated gross purchases first refusal or consolidated gross sales, as applicable, attributable most-favored pricing clauses or (B) to such supplier purchase or customer, as applicableacquire an interest in any other Person;
(bii) relates to the formation, creation, operation, management or control of any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Businessjoint venture, any agreement (or group of related agreements) for the purchase or sale of suppliesprofit-sharing, products partnership, limited liability company or other personal property, similar agreement or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order arrangement relating to capital expenditures that involves total remaining payments by the Company formation, creation, operation, management or control of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(fiii) involves any agreement containing a covenant not exchange-traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(iv) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of any LLP Company having an outstanding principal amount in excess of $250,000;
(v) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $250,000 (other than in the ordinary course of business consistent with past practice) or shares or other equity interests of any LLP Company or another Person;
(vi) relates to compete granted any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of any LLP Company, its business or material assets;
(vii) by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Company LLP Companies under such Contract or Contracts of at least $250,000 per year or $500,000 in favor the aggregate;
(viii) is with any Top Customer or Top Vendor;
(ix) obligates the LLP Companies to provide continuing indemnification (excluding Contracts executed principally with respect to another subject matter that contain, as part thereof, customary indemnification provisions) or a guarantee of obligations of a third party that impairs party, in either case, after the business as currently conducted, or which expressly restricts the ability date hereof in excess of the Company to conduct business of any type or in any location$250,000;
(gx) is between any agreement (i) relating to the licensing by LLP Company and any directors, officers or to the Company employees of Business Intellectual Property Rights an LLP Company, or any Related Person (other than licenses at-will employment, assignment of commercially availableIntellectual Property or confidentiality arrangements with employees entered into in the ordinary course of business, offconsistent with past practice), including all non-the-shelf software) competition, severance and (ii) that is material to the business of the Companyindemnification agreements;
(hxi) obligates the LLP Companies to make any agreement capital commitment or expenditure in excess of $250,000 (or group of related agreements) under which the Company has incurred, assumed or guaranteed including pursuant to any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closingjoint venture);
(ixii) relates to a material settlement entered into within three (3) years prior to the date of this Agreement or under which any agreement with any Affiliate of the LLP Company has outstanding obligations (other than any such agreement that will be terminated at or prior to the Closingcustomary confidentiality obligations);
(jxiii) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, provides another Person (other than another LLP Company or any manager, director or officer of any LLP Company) with a power of attorney; or
(xiv) is otherwise material to any LLP Company and outside of the ordinary course of business and not described in clauses (i) any Employee Benefit Plan set forth on Schedule 5.13, through (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;xiii).
(kb) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Company Material Contract: (i) such Company Material Contract is legal, valid, valid and binding and enforceable in all respects against the LLP Company party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions); (ii) no LLP Company is in breach or default, in any material respect, and, to the Knowledge of the Company, no event has occurred that with the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse passage of time or the giving of notice, notice or both) in both would constitute a material breach or default andby any LLP Company, or permit termination or acceleration by the other party thereto, under such Company Material Contract; (iii) to the Knowledge of the Company, no other party to such Company Material Contract is in breach or default thereunderin any material respect, and no event has occurred that with the passage of time or circumstance exists that giving of notice or both would constitute such a material breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed , or permit termination or acceleration by it any LLP Company, under such Company Material Contract; (iv) no LLP Company has received written or, to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any Knowledge of the Company’s securities or , oral notice of an intention by any of the properties or assets of the Company under party to any such Company Material Contract (to terminate such Company Material Contract or amend the terms thereof, other than Permitted Liens) nor has modifications in the Company given or received written notice alleging ordinary course of business that do not adversely affect the sameLLP Companies, taken as a whole, in any material respect; and (v) the other party to the Material Contract no LLP Company has not repudiated in writing waived any portion of material rights under any such Company Material Contract.
Appears in 2 contracts
Sources: Business Combination Agreement (Two), Business Combination Agreement (Two)
Material Contracts. Schedule 5.13 lists Except as set forth in Section 4.07 of the following written contracts and other written agreements Company Disclosure Schedules, there are no Contracts to which the Company is a party or by which it is bound (collectivelyeach, the a “Material ContractsContract”):
) that involve (ai) any agreement with the ten largest suppliers and the ten largest customers of the obligations (contingent or otherwise) of, or payments to, Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13US$10,000, (ii) the license of any agreements that either (A) require future payments by the Company of less than $100,000patent, copyright, trademark, trade secret or other proprietary right to or from Company, (Biii) have indemnification by Company with respect to any person outside the ordinary course of business, (iv) limitations on the ability of Company to compete in any line of business or with any Person or in any geographic area or during any period of time; (v) Company, on one hand, and any officer, director, Seller or Key Personnel, on the other hand; (vi) requires Company to purchase minimum quantities (or pay any amount for failure to purchase any specific quantities) of goods or services, or contains “most favored customer” or similar pricing arrangements; (vii) provides for a remaining term partnership, joint venture, teaming or similar arrangement pursuant to which Company shares in the profits or losses of less than one year and can be terminated any business with any other Person or is jointly liable with any other Person; (viii) pursuant to which Company is (a) a lessee or sublessee of or holds, occupies or operates, any real property, (b) a lessor or sublessor of, or makes available for use, occupancy or operation by the any Person, any real property or (c) a lessee or sublessee of any personal property; (ix) creates an Encumbrance on any Company upon notice of 60 days Assets or less without material cost or penaltyevidences any Indebtedness, or (iiix) any oral “at will” employment arrangements;
extends for a term of more than 12 months from the Closing Date (k) any agreement under which unless terminable by Company without payment or penalty upon no more than 60 days’ notice). Each Material Contract is valid and binding on the applicable Company has advanced or loaned any amount in accordance with its terms and is in full force and effect. Neither Company nor, to any employee (other than advances in the Ordinary Course of Business);
(l) any settlementSeller’s knowledge, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreementparty thereto, contract, lease, license, instrument is in material breach of or commitment binding upon the Company, default under (or is alleged to be in each case not included in clauses (abreach of or default under) through (l) above, which or to Seller’s knowledge has future required payments to provided or by the Company in excess of $100,000 per annum and is not terminable by the Company upon received any notice of sixty days any intention to terminate, any Material Contract. No event or less without substantial cost circumstance has occurred that, with notice or penaltylapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof, would require additional guarantors thereof, or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company Buyer has made available to Buyer an accurate been supplied with a correct and complete, in all material respects, complete copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 2 contracts
Sources: Securities Purchase Agreement (TerrAscend Corp.), Securities Purchase Agreement
Material Contracts. Schedule 5.13 4.17 lists the following written contracts and other written agreements to which the Company or any of its Subsidiaries is a party (collectively, the “Material Contracts”):party:
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 350,000 per annum;
(cb) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products products, or other personal property, or for the furnishing or receipt of servicesservices (i) which cannot be terminated without penalty upon 90 days or less prior written notice and (ii) which involve annual payments in excess of $350,000;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(ec) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(hd) any agreement (or group of related agreements) under which the Company it has created, incurred, assumed assumed, or guaranteed any Indebtedness in excess of $250,000;
(e) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual base compensation in excess of $150,000, other than agreements with a salesperson or customer service representative of the Company or any Subsidiary of the Company entered into in the Ordinary Course of Business;
(f) any agreement under which it has advanced or loaned in excess of $50,000 that is outstanding as of the date of this Agreement, to any of its directors, officers, and employees (other than Intercompany Obligationsloans or advances against commissions to salespersons or customer service representatives of the Company or any Subsidiary of the Company in the Ordinary Course of Business) or in connection with an acquisition by the Company or any of its Subsidiaries;
(g) any agreement evidencing or under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(h) any agreement under which the Company or any of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding $100,000 (other than loans or advances against commissions to salespersons or customer service representatives of the Company or a Subsidiary of the Company in the Ordinary Course of Business);
(i) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness in excess of $250,000 or under which it has imposed a Lien (other than a Permitted Lien) lien on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to liens permitted under the ClosingCompany's existing senior credit facility);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);; or
(j) any agreement, plan other agreement (or arrangement by group of related agreements) the performance of which involves consideration from and after the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company date of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company this Agreement in excess of $100,000 per annum and 500,000. Each contract, arrangement, commitment or understanding of the type described in this Section 4.17, whether or not set forth in Schedule 4.17 is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. referred to as a "COMPANY MATERIAL CONTRACT." The Company has made available to Buyer an accurate Parent a correct and complete, in all material respects, complete copy of each Company Material ContractContract (as amended to date). With respect to each Material Contractsuch agreement: (iA) such Material Contract the agreement is legal, valid, binding binding, in full force and effect and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by to the effect, if any, of (i) applicable bankruptcy, insolvency, reorganization, moratorium bankruptcy or other similar Law laws affecting the rights of creditors generally; , and (ii) the Company is not rules of law governing specific performance, injunctive relief and other equitable remedies; (with or without the lapse of time or the giving of notice, or bothB) in breach or default and, to the Knowledge of neither the Company, no nor to the knowledge of the Company any other party to such Material Contract party, is in breach or default thereunderdefault, and no event has occurred which with notice or circumstance exists that lapse of time would constitute a breach or default by the Company ordefault, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellationmodification, or acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in under the imposition of any Lien on any of agreement; and (C) neither the Company’s securities or any of , nor to the properties or assets knowledge of the Company under any such Material Contract (other than Permitted Liens) nor party, has repudiated any provision of the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractagreement.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists (a) Section 4.10(a) of the Disclosure Schedules lists, and the Acquired Companies have delivered or made available to Buyer true and complete copies of, each of the following written contracts and other written agreements to which of the Company is a party Acquired Companies (collectively, the “Material Contracts”):
(ai) each agreement involving aggregate consideration in excess of $250,000 that cannot be cancelled by any Acquired Company without penalty upon ninety (90) days’ notice or less;
(ii) all agreements that relate to the sale of any of the Acquired Companies’ assets, other than in the ordinary course of business, for consideration in excess of $250,000;
(iii) all agreements for the purchase of goods or services, other than in the ordinary course of business, for consideration in excess of $250,000;
(iv) all agreements entered into during the preceding three (3) years that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), other than in the ordinary course of business consistent with past practices, in each case involving amounts in excess of $250,000;
(v) any written employment, non-competition, severance or termination agreements with any Employee, in each case involving the payment of more than $150,000 per year and which cannot be cancelled by any Acquired Company without penalty on thirty (30) days’ notice or less;
(vi) any contract to which an Acquired Company is a party that provides for any joint venture, partnership or other similar agreement involving an Acquired Company;
(vii) any contract prohibiting or materially limiting any Acquired Company’s ability to engage in any business, solicit or hire employees or compete anywhere in the world;
(viii) any contract containing a “most favored nation” provision;
(ix) each agreement with a Top Customer or Top Supplier that does not terminate or is not terminable prior to the ten largest suppliers and date that is twelve (12) months within the ten largest customers date hereof;
(x) each licensing agreement or other contract (other than “off-the-shelf,” “packaged,” “click-wrap,” or “shrink-wrap” license agreement) pursuant to which any Acquired Company uses any Intellectual Property, receives rights in any Intellectual Property or pursuant to which any Acquired Company has granted a third party any right in or to any Intellectual Property of any Acquired Company;
(xi) each contract relating to Indebtedness of any Acquired Company;
(xii) any contract which involves an agreement to make capital expenditures in excess of $250,000;
(xiii) all collective bargaining agreements or similar agreements with any labor organization, union or association to which any Acquired Company is a party; and
(xiv) All agreements relating to the incurrence or guarantee of Indebtedness or the making of any loans by the Company (by dollar amount)or any of its Subsidiaries, in each on a consolidated basis for the fiscal year ended December 31case, 2010 and setting forth the approximate dollar amount and the approximate percentage in excess of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;$250,000.
(b) any agreement (or group of related agreementsExcept as set forth in Section 4.10(b) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially availableDisclosure Schedules, off-the-shelf software) and (ii) that is material to the business each of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible Material Contracts and each lease (other than any such agreement that will be terminated at or prior to office lease) is valid and binding on the Closing);
(i) any agreement with any Affiliate of the Acquired Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Companyparty thereto, and, to the Knowledge of the Company, the each other parties thereto, party thereto and is in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the full force and effect. No Acquired Company is not (with or without the lapse of time or the giving of noticein material breach of, or both) in breach or material default andunder, any Material Contract, nor, to the Knowledge of the Company, no is any other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractthereto.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (CPG Newco LLC)
Material Contracts. (a) Except for this Agreement and the Contracts specifically identified in Schedule 5.13 lists 2.7 of the following written contracts and other written agreements to which Company Disclosure Letter, the Company is neither a party to or bound by any of the following Contracts (each a “Material Contract”):
(i) any Contract with any customer of the Company involving payments to the Company in excess of $50,000 per annum;
(ii) any license, sublicense or other permission granted to any third party (including resellers) with respect to the Company Products or the Company-Owned Intellectual Property (other than the Contracts entered into with customers in the ordinary course of business (collectively, the “Material Customer Contracts”):
(a)) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease involving payments in excess of $100,000 50,000 per annum;
(ciii) except for any agreement entered into license, sublicense or other permission pursuant to which the Company uses or possesses any Third Party Software or the Intellectual Property attributable thereto (other than “shrink wrap” and similar generally available commercial end-user licenses to software that is not redistributed with or used in the Ordinary Course development or provision of Business, any agreement (or group the Company Products) involving payments in excess of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services$50,000 per annum;
(div) any agreement, commitment, Contract involving payments or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 50,000 per annum and annum;
(v) any Contract that expires or may be renewed at the option of any Person other than the Company so as to expire more than one year after the date of this Agreement involving payments in excess of $50,000 per annum;
(vi) any Contract obligating the Company to enhance, customize or otherwise modify the Company Products or create or deliver, or accelerate the delivery of, any new Company Products;
(vii) any trust indenture, mortgage, promissory note, loan agreement or other Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(viii) any Contract limiting the freedom of the Company to engage or participate, or compete with any other Person, in any line of business, market or geographic area, or to make use of any Company-Owned Intellectual Property or otherwise limiting the right of the Company to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts, subassemblies or services;
(ix) any Contract granting most favored nation pricing or similar provisions;
(x) any Contract granting any exclusive rights of any type or scope to any Person;
(xi) any Contract granting rights of refusal, rights of first negotiation or similar rights and/or terms to any Person;
(xii) any Contract pursuant to which the Company is not terminable a lessor or lessee of any real property;
(xiii) any Contract of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the indebtedness of any other Person;
(xiv) any Contracts relating to the membership of, or participation by, the Company in, or the affiliation of the Company with, any industry standards group or association; 50,000 per annum;
(xv) any Contract providing for the development of any software, content, technology or Intellectual Property, independently or jointly, by or for the Company (including development pursuant to a Customer Contract), (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons or (C) any Contract that involves the payment of royalties to any other Person in excess of $50,000 per annum;
(xvi) any agreement of indemnification or warranty or any Contract containing any support, maintenance or service obligation or cost on the part of the Company (other than indemnities contained in agreements for the purchase, sale or license of any products or services entered into by the Company upon notice in the ordinary course of sixty days business);
(xvii) any Contract with any labor union or less without substantial cost any collective bargaining agreement or penaltysimilar contract with its employees;
(xviii) any Contract with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other Person retained by the Company, in connection with this Agreement and the transactions contemplated hereby;
(xix) any Contract pursuant to which the Company has acquired a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any contract pursuant to which it has any material ownership interest in any other Person;
(xx) any Contract settling any Proceeding or threatened Proceeding; and
(xxi) any Contract or obligation not listed in clauses (i) through (xviii) that individually had or has a value or payment obligation in excess of $50,000 per annum or is otherwise material to the Company or its businesses, operations, financial condition, properties or assets or on which the Company’s businesses, operations, financial condition, properties or assets is substantially dependent.
(b) All Material Contracts are in written form. The Company has made available to Buyer an accurate and complete, performed in all material respectsrespects all of the obligations required to be performed by it and is not in, copy of each nor alleged to be in, default under any Material Contract. With There exists no default or event of default or event, occurrence, condition or act, with respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by with respect to any such other contracting party; , which, with the giving of notice, the lapse of time or the happening of any other event or condition, would reasonably be expected to (iiii) become a default or event of default under any Material Contract or (ii) give any party the right to a rebate, chargeback, refund, credit or penalty under any Material Contract or the right to cancel, terminate or materially modify any Material Contract. The Company has not received any notice or other communication regarding any actual or possible violation or breach of, default under, or intention to cancel or adversely modify any Material Contract.
(c) Each of the Material Contracts is in full force and effect and constitutes a legal, valid and binding agreement of the Company, and the Company has performed all no Knowledge that any Material Contract is not a legal, valid and binding agreement of any other party thereto, subject in each case only to the effect, if any, of (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights or remedies of creditors or (ii) general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief). No Customer Contract permits a customer to sublicense or otherwise transfer to a third party the Company Products, the Company Proprietary Software or any Intellectual Property attributable thereto.
(d) The Company has made no material obligations previously required commitments (including with respect to be performed by it under such customizations, product development or payment terms) to any customers that are not contained in the Customer Contracts.
(e) True and complete copies of each Material Contract; (iv) , together with all amendments and supplements thereto and all waivers of any terms thereof, have been provided, or made available, to Acquiror prior to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractdate hereof.
Appears in 1 contract
Sources: Merger Agreement (Sciquest Inc)
Material Contracts. (a) Schedule 5.13 lists 2.14 contains a complete and accurate list of all Contracts of the following written contracts and other written agreements categories to which any of the Company Terminals Companies is a party or by which any of them is bound as of the date of this Agreement (collectively, the “"Material Contracts”"):
(ai) any agreement (1) continuing contracts for the purchase of materials, supplies, or equipment (other than purchase contracts and orders for inventory in the ordinary course of business consistent with the ten largest suppliers and the ten largest customers of the Company (by dollar amountpast practice), each on a consolidated basis for the fiscal year ended December 31(2) management, 2010 and setting forth the approximate dollar amount and the approximate percentage service, consulting, or other similar types of consolidated gross purchases contracts or consolidated gross sales(3) advertising agreements or arrangements, as applicable, attributable in any such case that have an aggregate committed future liability to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments (other than the applicable Terminals Company) in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures 1,000,000 and that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the applicable Terminals Company upon by notice of sixty not more than 60 days or for a cost of less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; than $1,000,000;
(ii) material Intellectual Property licenses (including any license or other agreement under which the applicable Terminals Company is not (with licensee or without the lapse licensor of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; Intellectual Property);
(iii) agreements under which any of the Company Terminals Companies has performed all material obligations previously required to be performed by it under such Material Contract; directly or indirectly guaranteed indebtedness of any Person in the principal amount individually in excess of $1,000,000;
(iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on agreements under which any of the Company’s securities Terminals Companies is obligated to advance, loan, extend credit, or make a capital contribution to, or other investment in, any Person (other than any of the properties Terminals Companies), in any such case that, individually, is in excess of $1,000,000;
(v) all Contracts, leases or assets easements involving annual rental payments or receipts in excess of $1,000,000;
(vi) all promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the lending of money, whether as borrower or lender, in excess of $1,000,000 and all related security agreements or similar agreements associated therewith;
(vii) Contracts which limit the freedom of any of the Company under Terminals Companies to compete with any Person or operate at any location, including, without limitation, any preferential rights granted to third parties to purchase or lease such Material location;
(viii) any Contract for a pending or completed acquisition or disposition (by merger or otherwise) of all or substantially all of the assets (other than Permitted Liensinventory) nor has or capital stock of any Person (including, without limitation, the Company given or received written notice alleging the same; and (vTerminals Companies) the other party to the Material Contract has not repudiated in writing under which any portion of such Material Contract.the
Appears in 1 contract
Sources: Stock Purchase Agreement (Kinder Morgan Energy Partners L P)
Material Contracts. (a) Schedule 5.13 lists 4.13(a) sets forth all of the following written contracts and other written agreements Contracts to which the Seller (with respect to the Business) or any member of the Company Group is a party party, or by which any of the assets of any Seller (with respect to the Business) or any member of the Company Group are bound, as of the Execution Date (collectively, the “Material Contracts”):
(ai) Contracts providing that the Seller (with respect to the Business) or any agreement with the ten largest suppliers and the ten largest customers member of the Company (by dollar amount), each on a consolidated basis for Group shall not compete in any line of business or geographic area or that will restrict the fiscal year ended December 31, 2010 and setting forth ability of the approximate dollar amount and Purchaser or any Affiliate of the approximate percentage Purchaser to compete in any line of consolidated gross purchases business or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicablegeographic area after the Closing Date;
(bii) Contracts between the Seller or any of its Affiliates (other than members of the Company Group), on the one hand, and any member of the Company Group, on the other, in each case that will remain in effect following the Closing Date;
(iii) any agreement bonus or any other incentive compensation, deferred compensation, severance, salary continuation, pension, profit sharing or retirement Contract or plan, or any other employee benefit plan or arrangement relating to persons employed by the Seller or any of its Affiliates in connection with the Business under which Purchaser or any member of the Company Group may have any Liability, in each case that is not listed on Schedule 4.14(a);
(or group iv) Contracts relating to the incurrence of related agreements) indebtedness for the lease of personal property to or from any Person providing for lease payments borrowed money in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights 5,000,000 (other than licenses of commercially available, offinter-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement company transactions with Affiliates that will be terminated settled at or prior to the ClosingClosing and indebtedness of the Funds);
(iv) Contracts which require the expenditure of more than $5,000,000 in the aggregate in any agreement with future 12-consecutive-month period that are not terminable on notice of 90 days or less without further liability;
(vi) Contracts pertaining to the licensing of Intellectual Property Rights or information technology systems used or otherwise exploited in the ordinary course of the business of any Affiliate member of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success feesGroup, other than software licenses entered into on standard terms involving commercially available software involving fees and payments of less than $150,000 over the course of twelve-consecutive months; and
(ivii) any Employee Benefit Plan labor or collective bargaining agreements.
(b) Except as has not had and would not have a Material Adverse Effect, each Material Contract and each other Contract required to be set forth on Schedule 5.13, (ii4.13(a) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year is in full force and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum effect and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against in accordance with its terms. Except as has not had and would not have a Material Adverse Effect, neither the Company, andSeller nor any member of the Company Group nor, to the Knowledge of the Company, the any other parties party thereto, is in default under the terms of any Material Contract, and the carrying out and completion of the transactions contemplated by this Agreement will not cause a breach of or default under any Material Contract, or result in the acceleration of any obligation, the loss or restriction of rights, or the requirement to pay additional fees or penalties, under any Material Contract.
(c) Each contract under which any member of the Company Group serves as an investment adviser or sub-adviser (each an “Advisory Contract”) is valid and effective in accordance with its respective terms, except as enforcement may be limited by applicable bankruptcyand there is not, insolvencyunder any such Advisory Contract, reorganizationan existing material breach or event which, moratorium with the giving of notice or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticeboth, or both) in breach or default and, to the Knowledge would become such a breach. As of the CompanyBase Date, no other party to such Material Contract is in breach or default thereunder(i) the Total Base Aggregate NB Revenue Run-Rate was $898,000,000, as indicated on Schedule 1.1(b), and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iiiii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s KnowledgeBase Aggregate Fixed Income Revenue Run-Rate was $129,000,000, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien as indicated on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractSchedule 1.1(a).
Appears in 1 contract
Material Contracts. Except as listed or described on ------------------ Schedule 5.13 lists 2.11 and Schedule 2.12 hereto, as of the following written contracts and other written agreements to which date hereof, neither the ------------- ------------- Company nor any Subsidiary is a party to or bound by any written or oral leases, agreements, instruments, or other contracts or legally binding contractual commitments ("Contracts") that are of a type described below (collectively, the “"Material Contracts”"):
(ai) any agreement collective bargaining arrangement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableany labor union;
(bii) any agreement Contract for capital expenditures or the acquisition or construction of fixed assets in excess of $100,000;
(or group of related agreementsiii) any Contract for the lease purchase or sale of personal property to inventory, materials, supplies, merchandise, machinery, equipment, parts or from any Person providing for lease other property, assets, or services requiring aggregate future payments in excess of $100,000 per annum(other than standard inventory purchase orders executed in the ordinary course of business);
(civ) except for any agreement entered into in Contract relating to the Ordinary Course borrowing of Businessmoney or the guaranty of another person's borrowing of money;
(v) any Contract granting any person a lien on all or any part of assets;
(vi) any Contract granting to any person a first refusal, any agreement (first offer or group of related agreements) for the similar preferential right to purchase or sale acquire any of suppliesits assets;
(vii) any Contract under which the Company or any Subsidiary is (A) a lessee or sublessee of any machinery, products equipment, vehicle (including fleet equipment) or other tangible personal property, or for the furnishing or receipt (B) a lessor of servicesany property, in either case having an original value in excess of $500,000;
(dviii) any agreementContract limiting, commitment, restricting or outstanding purchase order relating to capital expenditures that involves total remaining payments by prohibiting it from conducting business anywhere in the Company of more than $100,000.
(e) United States or elsewhere in the world or any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by Contract limiting the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability freedom of the Company to conduct business of any type or engage in any locationline of business or to compete with any other Person;
(gix) any agreement (i) relating to the licensing by joint venture or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Companypartnership Contract;
(hx) any agreement (Contracts, singly or group in the aggregate, requiring future payments of related agreements) under which $500,000 or more that require the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate consent of the Company (other than any such agreement that will be terminated at or prior to party thereto in connection with the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay moneytransactions contemplated hereby; and
(mxi) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penaltymaterial employment Contract with any employee. The Company has made available to Buyer an accurate the Purchaser a true and complete, in all material respects, complete copy of each written Material Contract, including all amendments or other modifications thereto. With respect Except as set forth on Schedule 2.12 hereto, to ------------- the Company's knowledge, each Material Contract: (i) such Material Contract is legal, valid, a valid and binding and enforceable against the Company, and, to the Knowledge obligation of the Company, the other parties each party thereto, enforceable in accordance with its terms, except as enforcement may be limited by applicable subject only to bankruptcy, insolvency, reorganization, moratorium receivership and other laws affecting creditors' rights generally. Except as set forth on Schedule 2.12, the ------------- Company or similar Law affecting a Subsidiary, as the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticecase may be, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under the Material Contracts and the Company or such Material Contract; (iv) to Subsidiary, as the Company’s Knowledgecase may be, no event has occurred is not in breach or circumstance exists that would permit terminationdefault thereunder, cancellationexcept for breaches or defaults which will not, acceleration, suspension individually or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such aggregate, have a Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractAdverse Effect.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 lists the following written contracts and other written agreements 4.13(a) sets forth those Contracts to which the any Company is a party (that are in effect on the date hereof and which have not yet been fully performed by the applicable Companies and any applicable counterparties) that satisfy any of the following criteria (collectively, the “Material Contracts”, provided, however, that any Contract identified on Schedule 4.13(a) as an “Immaterial Contract” is conclusively deemed not to be a Material Contract regardless of whether it satisfies any of the following criteria):
(ai) Contracts relating to the acquisition or disposition by any Company of (A) any agreement with business, real property or business segment (whether by merger, consolidation or other business combination, sale of assets or otherwise) or the ten largest suppliers and the ten largest customers equity interest of any Person, or (B) any of the assets of any Company (by dollar amount)other than sales of inventory or the disposition of obsolete equipment, in each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into case in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale consideration in excess of supplies, products or other personal property, or for the furnishing or receipt of services$50,000;
(dii) any agreement, commitment, or outstanding purchase order Contracts relating to capital expenditures any indebtedness or guaranties of indebtedness, including Debt and guaranties of Debt (but only to the extent any of the foregoing will survive the Closing in regard to any of the Companies);
(iii) Contracts (or groups of related Contracts) that involves total remaining payments are not terminable by the applicable Company without penalty on notice of sixty (60) calendar days or less, which individually (A) involve the expenditure or receipt of more than $100,000.
37,500 annually or more than $100,000 over the remaining term thereof, or (eB) require performance by any agreement concerning a partnership or joint ventureCompany more than one year from the date hereof;
(fiv) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, Contracts restricting or which expressly restricts purportedly restricting the ability of any of the Company Companies to conduct operate or compete in any business of or with any type Person or in any locationgeographic area during any period of time following the Closing;
(gv) Contracts granting to any agreement (i) relating Person the right to operate a restaurant or other commercial enterprise under the licensing by Bakers Square Brand, the Village Inn Brand or to using any of the Company of Business Listed Intellectual Property Rights (each such agreement that remains in effect on the date of this Agreement is referred to herein as a “Franchise Agreement”; all of which are listed on Schedule 4.13(a)(v)), it being understood that the granting of any licenses or other than licenses rights to utilize baking recipes to another Person (without use of commercially available, off-the-shelf softwarea Target Company’s branding or trade dress and without otherwise satisfying the legal definition of a “franchise agreement”) and (ii) that is material to the business of the Companydoes not constitute a Franchise Agreement;
(hvi) Contracts pursuant to which any agreement Company is the lessor or lessee of any real property, building or structure;
(vii) Contracts (that have not yet been fully performed by the applicable Company and any applicable counterparty) related to the construction, acquisition or group development of related agreements) under any restaurant location at which the a Company has incurredRestaurant is located, assumed or guaranteed improvements, upgrades or maintenance to any Indebtedness Company Restaurant (other than Intercompany Obligations) or provided, however, that any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement maintenance contracts that remain in effect will be terminated at or prior to the Closinglisted on Schedule 4.13(a)(vii));
(iviii) all broker, distributor, dealer, manufacturer’s representative, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any agreement Company is a party, which individually involve the expenditure or receipt by the Companies of more than $25,000;
(ix) Contracts that require the Companies to purchase minimum quantities (or pay any amount for failure to purchase any specific quantities) of goods or services, comply with “take or pay” arrangements, deal with any Affiliate Person on an exclusive basis, or provide “most favored nation” or similar pricing to any Person;
(x) Contracts that require the Companies to indemnify or hold harmless any other Person or assume any Tax or environmental liabilities (other than, with respect to any of the Company (foregoing, leases for Leased Real Property and any other than documents of record regarding any such agreement that will be terminated at or prior to the Closingreal property);
(jxi) Contracts that provide for any agreementpartnership, plan joint venture, strategic alliance, teaming or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangementssimilar arrangement;
(kxii) any agreement under which the Company has advanced Contracts that provide for or loaned any amount relate to any employee employment or consulting relationship with any Person and not terminable upon sixty (other than advances in the Ordinary Course of Business)60) calendar days’ notice without penalty;
(lxiii) Contracts with any Governmental Body, including any settlement, conciliation or similar agreement entered by agreements with any Governmental Authority whereby Body;
(xiv) Contracts pursuant to which any Company grants or is granted a license of any Intellectual Property (other than “off-the-shelf” or “shrink-wrap” licenses);
(xv) Contracts granting a power of attorney;
(xvi) Any other Contract that individually requires a minimum annual spend of at least $25,000 by the Companies and is not previously disclosed pursuant to this Section 4.13(a);
(xvii) Any Contract between any of the Companies on the one hand and the Seller or the Parent (or any Affiliate of the Seller or the Parent) on the other hand that will survive the Closing;
(xviii) all collective bargaining agreements or Contracts with any union or group of employees to which any Company is under an obligation to perform activities, refrain from activities and/or pay moneya party; and
(mxix) Contracts with any other agreement, contract, lease, license, instrument of the parties listed or commitment binding upon required to be listed on Schedule 4.21(a) (to the Company, in each case extent not already included in clauses clause (aiii) through of this Section 4.13(a)).
(lb) aboveTrue, which has future required payments to or by the Company correct and complete copies of all Material Contracts as currently in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has effect have been made available to Buyer an accurate and complete, in all material respects, copy of each Material Contractthe Purchaser. With respect to each Material Contract: (i) such Each Material Contract is legala valid and binding obligation of the applicable Company party thereto, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, such Company in accordance with its terms, except subject to the Enforceability Exceptions. The Companies are not in default in any material respect under any Material Contract as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting of the rights date of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to this Agreement. To the Knowledge of the CompanySeller, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has breached, violated or defaulted under any Material Contract in any material respect that has not repudiated in writing any portion of such Material Contractbeen cured.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (BBQ Holdings, Inc.)
Material Contracts. Schedule 5.13 (a) Section 3.12(a) of the Disclosure Schedules lists the following written contracts and other written agreements Contracts to which the Company is a party or by which it is bound (collectively, the “Material Contracts”):) , a complete and correct copy of each of which has been made available to Purchaser:
(i) Contracts with any Stockholder or any current officer or director or Affiliate of the Company;
(ii) Contracts with (a) any agreement with the ten largest suppliers Material Customers and the ten largest customers of the Company (by dollar amountb) Material Suppliers), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(biii) Contracts with any agreement (labor union or group of related agreements) for the lease of personal property to or from association representing any Person providing for lease payments in excess of $100,000 per annumBusiness Employee;
(civ) except Contracts for the sale of any agreement entered into of the assets of the Company, other than sales in the Ordinary Course of Business, any agreement (for consideration, individually or group in the aggregate, in excess of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services$100,000;
(dv) Contracts with respect to Indebtedness, including ▇▇▇▇▇▇, factoring, swaps and similar agreements and Contracts under which the Company has made or committed to make advances or loans to any agreementother Person (other than trade receivables in the Ordinary Course of Business);
(vi) (a) management agreements or Contracts for the employment of any director, commitmentofficer, Business Employee or other Person on a full-time, part-time, consulting or other basis, excluding at-will employment agreements that are terminable without penalty or other payment, (b) Contracts with any director, officer, Business Employee or other Person providing for payment of cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or severance, salary continuation or other post-employment benefits, or outstanding purchase order (c) Contracts with any director, officer, Business Employee or other Person (i) with an annual base cash compensation in excess of $100,000, or (ii) containing noncompete and/or nonsolicit provisions;
(vii) all Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and providing for payment of cash or other compensation or benefits of $100,000 or more per year;
(viii) Contracts relating to capital expenditures the rental or use of real property, equipment, vehicles, other personal property or fixtures, except for Contracts not involving the lease of real property individually involving payment of annual rentals or sums less than $100,000;
(ix) Contracts restricting the Company from engaging in any line of business or competing with any Person or in any geographical area, limiting the ability of the Company to solicit or hire or engage in transactions with employees, suppliers or customers of another Person, granting exclusivity (including with respect to any product) in favor of another Person, or containing any “most favored nation” or other preferred pricing provision;
(x) Guarantees, specifying the maximum amount of each such Guarantee and whether the Guarantee is a non-contract Guarantee in bond form;
(xi) Contracts that involves total remaining involve payments to or by the Company in excess of more than $100,000.150,000 per year;
(exii) Contracts involving the payment by the Company or the Subsidiary of any earn-out, deferred or contingent payment, or other indemnification or material obligations remain outstanding;
(xiii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(xiv) all Contracts whereby the Company has issued a Person a Warrant;
(xv) any agreement concerning a partnership or joint venture;
(fxvi) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay moneyContracts; and
(mxvii) any settlement agreement with any Person or any other agreementagreement with a Governmental Body with any continuing obligations other than confidentiality and release.
(b) Each Material Contract is in full force and effect and is a legal, contract, lease, license, instrument or commitment valid and binding upon agreement of the Company, and there is no default or breach by the Company or the Subsidiary nor has any event occurred that would give rise to such a default, or, to the Company’s Knowledge, any other party, in the timely performance of any obligation to be performed or paid thereunder or any other material provision thereof, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both. Except as set forth on Section 3.12(b) in breach or default and, to the Knowledge of the CompanyDisclosure Schedules, no other party to such Material Contract is in neither the Company nor any Subsidiary has received any notice of any default or breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by or a Subsidiary under any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities Contract or any intention of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has terminate or not repudiated in writing renew any portion of such a Material Contract.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists (a) Except for the following written contracts Contracts described in Section 3.1(12)(a) of the Disclosure Letter and other written agreements to which the Company is a party Employee Plans set out in Section 3.1(18)(a) of the Disclosure Letter (collectively, the “Material Contracts”):), none of the Group Companies is a party to or bound by any:
(ai) any agreement continuing Contract involving the performance of services, purchase or delivery of goods or materials, or payments to or by, the Group Companies with payment or expenditure obligations or incurred obligations in excess of $1,000,000 in the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicablefull 2024 calendar year;
(bii) trust indenture, mortgage, promissory note, loan agreement or other Contract relating to indebtedness with an outstanding principal amount in excess of $500,000 in the aggregate;
(iii) agreement of guarantee, support, indemnification, assumption or endorsement of, or any agreement similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or group otherwise) or indebtedness of related agreementsany other Person in excess of $500,000 in the aggregate;
(iv) Contract involving loans or financing to any Person in excess of $500,000;
(v) Contract for the lease of personal property purchase or sale or minerals from or to or from any Person providing Person, including with [Redacted - Commercially Sensitive Counterparty].
(vi) Exploitation agreements with [Redacted - Commercially Sensitive Counterparty].
(vii) Contract for lease capital expenditures that requires annual future payments in excess of $100,000 per annum500,000 in the aggregate;
(cviii) except Contract limiting the freedom of the Group Companies to engage in any line of business, set the material terms of its Contracts, compete with any other Person, solicit any Persons for any agreement entered into in purpose or otherwise to conduct its portion of the Ordinary Course of Business, any agreement (or group of related excluding customary confidentiality agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(dix) any agreementContract pursuant to which one or more Group Companies has entered into a material joint venture, commitmentstrategic alliance, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) similar arrangement with any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (Person other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the other Group Company;
(hx) Contract pursuant to which one or more Group Companies has an agreement, option or warrant, or any agreement other right or privilege capable of becoming such, for the purchase, subscription, allotment or issuance of any shares or other equity securities of another Person;
(or group of xi) agreements with local communities related agreements) to the Mines under which the Company has incurred, Group Companies have assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable obligation; or
(xii) any contracts and other agreements that are material for the applicable Group Company and the continuation of its Business as currently conducted.
(b) Assuming each Material Contract is binding and enforceable against the Company, and, to the Knowledge of the Company, the other party or parties thereto, in accordance with its termseach Material Contract constitutes a valid and binding obligation of the applicable Group Company except: (i) subject only to any limitation under Laws relating to (A) bankruptcy, except as enforcement may be limited by applicable bankruptcywinding-up, insolvency, reorganization, moratorium or similar Law arrangement and other Laws of general application affecting the rights enforcement of creditors generallycreditors’ rights, and (B) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction; and (ii) where the Company is failure to be so valid, binding and enforceable would not (with or without reasonably be expected to have a Material Adverse Effect. The Group Companies are not in default under any Material Contract in any material respect. To the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge knowledge of the CompanyVendors, no other party to such a Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by under any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result Contract in any payment becoming due undermaterial respect. To the Vendors’ knowledge, or result in there is no intention on the imposition part of any Lien on any of the Company’s securities or other parties to a Material Contract to terminate any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractthem.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists (a) Section 3.10(a) of the Blade Group Disclosure Schedules sets forth a list of the following written contracts and other written agreements Contracts to which a member of the Company is Blade Group is, as of the date of this Agreement, a party to or bound by (each Contract required to be set forth on Section 3.10(a) of the Blade Group Disclosure Schedules, together with each Contract entered into after the date of this Agreement that would be required to be set forth on Section 3.10(a) of the Blade Group Disclosure Schedules if entered into prior to the date of this Agreement, collectively, the “Material Contracts”):). True, complete and correct copies of the following Material Contracts in effect as of the date hereof have been made available to DSAQ:
(ai) any agreement with the ten largest suppliers and the ten largest customers each of the Company 10 largest Contracts (determined based on aggregate consideration received by dollar amount), each on a consolidated basis the Blade Group thereunder) of the Blade Group for the fiscal year calendar years ended December 31, 2010 2021 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross salesDecember 31, as applicable, attributable to such supplier or customer, as applicable2022;
(bii) any agreement Contract relating to Indebtedness for borrowed money of any member of the Blade Group or the placing of a Lien (other than Permitted Liens) on any material assets or group properties of related agreementsany member of the Blade Group;
(iii) any Contract for the disposition of any portion of the assets or business of the Blade Group or for the acquisition by the Blade Group or of the assets or business of any other Person (including through merger or consolidation or the purchase of a controlling equity interest in or substantially all of the assets of such Person or by any other manner) in each case (A) for the lease of personal property to or from any Person providing for lease payments an aggregate purchase price in excess of $100,000 per annumor (B) under which the Blade Group has any continuing obligation (contingent or otherwise) with respect to an “earn out,” contingent purchase price, indemnification, backend payment or other contingent or deferred payment obligation;
(civ) any Contract under which a member of the Blade Group is a lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement entered into under which the aggregate annual rental payments do not exceed $100,000;
(v) any Contract under which a member of the Blade Group is a lessor of or permits any third party to hold or operate, in the Ordinary Course of Businesseach case, any tangible property (other than real property), owned or controlled by any member of the Blade Group, except for any lease or agreement under which the aggregate annual rental payments do not exceed $100,000;
(or group of related agreementsvi) any Contract with outstanding obligations for the sale or purchase or sale of supplies, products or other personal property, fixed assets or for real estate having a value in excess of $250,000, other than sales or purchases in the furnishing or receipt ordinary course of servicesbusiness and sales of obsolete equipment;
(dvii) any agreement, commitment, Contract requiring any future capital expenditure (or outstanding purchase order relating to series of capital expenditures that involves total remaining payments expenditures) by the Company Blade Group in an amount in excess of more than (A) $100,000.
200,000 annually or (eB) any agreement concerning a partnership or joint venture$500,000 over the term of the agreement;
(fviii) any agreement containing a covenant not Contract that (A) limits or purports to limit, in any material respect, the freedom of any member of the Blade Group to engage or compete granted in any line of business or with any Person or in any area, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions, (C) contains “take or pay,” “requirements” or other similar provisions obligating any member of the Blade Group to provide the quantity of goods or services required by the Company in favor of a third party that impairs the business as currently conducted, another Person or which expressly restricts (D) contains any other provisions materially restricting or purporting to restrict the ability of any member of the Company Blade Group to conduct business sell, manufacture, develop, commercialize, directly or indirectly through third parties, or to solicit any potential employee or customer, in the case of any type each of the foregoing clauses (A), (B), (C) and (D), that would so limit or purports to limit, in any locationmaterial respect, PubCo or any of its Affiliates after the Closing;
(gix) any agreement Contract (iA) relating pursuant to which (1) any third party grants any member of the Blade Group a license, right, permission, consent, non-assertion or release with respect to any Intellectual Property material to the licensing by Blade Group or (2) the Blade Group grants a license, right, permission, consent, non-assertion or release with respect to any Owned IP material to the Company Blade Group, (B) that relates to the ownership, development or use of Business any Intellectual Property Rights material to the Blade Group or (other than C) that affects the Blade Group’s ability to use, enforce or disclose any Intellectual Property material to the Blade Group, excluding in the case of either (A) or (B), (x) non-exclusive end-user licenses of granted to the Blade Group for unmodified, commercially available, off-the-shelf software) Software with aggregate fees of less than $50,000 and (iiy) non-exclusive licenses granted by any member of the Blade Group to its customers in the ordinary course of business;
(x) any Contract requiring any member of the Blade Group to guarantee the Liabilities of any Person (other than another member of the Blade Group) or pursuant to which any Person (other than another member of the Blade Group) has guaranteed the Liabilities of the Blade Group, in each case in excess of $100,000;
(xi) any Contract under which the Blade Group has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person (other than another member of the Blade Group), individually or in the aggregate, in an amount in excess of $100,000 or made any capital contribution to, or other investment in, any Person (other than another member of the Blade Group);
(xii) any material advertising, agency, joint marketing or other Contract the performance of which requires either (A) annual payments to or from the Blade Group in excess of $100,000 or (B) aggregate payments to or from the Blade Group in excess of $250,000 over the term of the agreement and, in each case, that is not terminable by the Blade Group without penalty upon less than sixty (60) days’ prior written notice;
(xiii) any collective bargaining agreement or other Contract with any labor union, works council or labor organization (each, a “Labor Agreement”);
(xiv) any Contract for the employment or engagement of any director, officer, employee or other service provider of the Blade Group that (A) provides for annual compensation in excess of $100,000, (B) provides for the payment and/or accelerated vesting of any compensation or benefits upon the consummation of the transactions contemplated by this Agreement, or (C) otherwise restricts the Blade Group’s ability to terminate the employment or engagement of such individual at any time for any reason or no reason without penalty or liability;
(xv) any Contract with a third party establishing any joint venture, partnership, strategic alliance or other collaboration that is material to the business of the CompanyBlade Group;
(hxvi) any agreement Contract between (A) a member of the Blade Group, on the one hand, and any (B) current or group former officer, director, employee, partner, member, manager, beneficial owner (within the meaning of related agreementsSection 13(d) under which of the Company has incurredExchange Act) of five percent (5%) or more of the Equity Securities of any member of the Blade Group or other Affiliate of the Blade Group or any immediate family member of the foregoing Persons, assumed or guaranteed any Indebtedness on the other hand (in each case, other than Intercompany ObligationsContracts solely among members of the Blade Group) or any agreement evidencing or under which the Company has imposed (each Person identified in this clause (B), a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing“Blade Group Related Party”);
(ixvii) any agreement Contract with any Affiliate a Governmental Authority involving annual payments in excess of the Company (other than any such agreement that will be terminated at or prior to the Closing)$100,000;
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(lxviii) any settlement, conciliation or similar agreement entered by Contract (A) the performance of which would be reasonably expected to involve any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any continuing material obligations on the Blade Group (or PubCo or any of its Affiliates after the Closing); and
(xix) documents required to be filed with the Registration Statement/ Proxy Statement under applicable SEC requirements or would otherwise be required to be filed by a member of the Company upon notice Blade Group as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and completeRegulation S-K under the Securities Act as if such member of the Blade Group was the registrant.
(b) Each Material Contract is, in all material respectsas of the date of this Agreement, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is in full force and effect, and (ii) a legal, validvalid and binding obligation of the applicable member of the Blade Group party thereto, binding and enforceable in accordance with its terms against the Company, applicable member of the Blade Group party thereto and, to the Knowledge of the CompanyBlade Group’s knowledge, the other parties thereto, in accordance with its termseach case, except as enforcement may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting or similar relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity, whether such enforceability is considered in a Proceeding in equity or at Law affecting (the rights “Enforceability Exceptions”). As of creditors generally; the date of this Agreement, except, in each case, as would not reasonably be expected to be, individually or in the aggregate, material to the Blade Group, there is no breach or default by the Blade Group or, to the Blade Group’s knowledge, any third party under any Material Contract, and, to the Blade Group’s knowledge, (iiA) the Company is not no event has occurred which (with or without the notice or lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default or would permit termination of, or a modification or acceleration thereof by any party to, such Material Contract and (B) no party to a Material Contract has claimed a force majeure (or similar excuse in performance due to COVID-19) with respect thereto. Except, in each case, as would not reasonably be expected to be, individually or in the Company oraggregate, material to the Blade Group, to the CompanyBlade Group’s Knowledgeknowledge, by any such other party; (iii) within the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.past twelve
Appears in 1 contract
Sources: Business Combination Agreement (Direct Selling Acquisition Corp.)
Material Contracts. (a) Schedule 5.13 lists 3.14 of the following written Disclosure Schedules sets forth a true and complete list of each contract of the CCR Entities of a type described below (such contracts and other written agreements to which the Company is a party (collectively, the as described in this Section 3.14(a) being “Material Contracts”):
(ai) any agreement with the ten largest suppliers and the ten largest customers of contracts that provide for payment or receipt by the Company (by dollar amount)or any of its Subsidiaries of more than $250,000 per year, each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases including any such contracts with customers or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableclients;
(bii) contracts with any agreement Material Customer (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement other than purchase orders entered into in the Ordinary Course ordinary course of Business, any agreement (or group business with an undelivered balance of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of servicesless than $500,000);
(diii) any agreement, commitment, or outstanding purchase order contracts relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint ventureIndebtedness for borrowed money;
(fiv) any agreement containing a covenant not contracts that limit or purport to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts limit the ability of the Company or any of its Subsidiaries to conduct compete in any line of business of or with any type Person or in any locationgeographic area or during any period of time, or that grants the other party or any third person “most favored nation” status or any type of special discount rights;
(gv) contracts relating to any agreement material joint venture, partnership or similar agreements or arrangements;
(ivi) contracts under which either CCR Entity is lessee of or holds or operates any real property or material tangible personal property, except for any contract under which the aggregate annual rental payments do not exceed $250,000;
(vii) contracts for operations and maintenance agreements;
(viii) material license agreements relating to the licensing by or to use of any third party Intellectual Property, including material software agreements necessary for the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business operation of the Companyassets of the CCR Entities;
(hix) any agreement (or group of related agreements) under which the Company has incurredeach contract pertaining to storage, assumed or guaranteed any Indebtedness (transportation, facilities, terminalling, throughput, construction, agency, purchase and supply, connection, reimbursement, access and other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing)similar contracts;
(ix) any agreement each interconnection contract with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less longer than one year 90 days and can which may not be terminated by the Company Seller or either of the CCR Entities upon less than 90 days’ notice without penalty or payment;
(xi) contracts under which either CCR Entity is lessor of 60 days or less without material cost permits any third party to hold or penaltyoperate any real property, tangible personal property or intellectual property, except for any contract under which the aggregate annual rental payments do not exceed $250,000;
(xii) each contract that (A) includes “most favored nation,” “most favored customer,” non-competition or similar clauses restricting the right of either CCR Entity with respect to pricing, the right to deal in a commodity or performance of services, or (iiiB) requires either CCR Entity to purchase its total requirements of any oral product or service from a third party or contains any “at willtake or pay” employment arrangementsprovisions;
(kxiii) any agreement under contract between Seller or any Person affiliated with Seller, on the one hand, and either of the CCR Entities, on the other, which will survive the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business)Closing;
(lxiv) each contract that provides for any settlementlimit on the ability of either CCR Entity to (A) compete in any line of business or in any geographic area during any period of time after the Closing or (B) solicit, conciliation engage or similar agreement entered by hire any Governmental Authority whereby Person as an employee or consultant;
(xv) except for the Company is under an obligation Credit Facility, each contract evidencing any Indebtedness, together with all security documents or other lien documents related to perform activities, refrain from activities and/or pay moneyor binding on either CCR Entity or any of their assets; and
(mxvi) each contract providing for the commitment of management or consulting services to either CCR Entity or relating to the employment, or the termination of employment, of any Person with respect to either CCR Entity (including change of control, retention, indemnification and contribution agreements), other agreement, contract, lease, license, instrument than with respect to salary or commitment binding upon incentive compensation payments in the Company, in each case not included in clauses ordinary course of business.
(ab) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company Seller has made available to Buyer an accurate true and complete, in all material respects, copy complete copies of each Material Contract. With respect Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each Material Contract: (i) such Material Contract is legalvalid and binding on the CCR Entities, validor one of them, binding and enforceable against as the Companycase may be, and, to the Knowledge of the CompanySeller, the other parties counterparties thereto, and is in accordance with its termsfull force and effect. Neither of the CCR Entities, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default andnor, to the Knowledge of Seller, any of the Companycounterparties thereto, no other party to such Material Contract is in breach of, or default thereunderunder, and no event has occurred any Material Contract, except for such breaches or circumstance exists defaults that would constitute not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither of the CCR Entities has received or given written notice of an intent to terminate, cancel, modify, amend or otherwise materially alter the terms and conditions of, or notice of material breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (USD Partners LP)
Material Contracts. (a) Except as set forth in Schedule 5.13 lists the following 3.15(a), there are no agreements, licenses, understandings, arrangements or other commitments (other than insurance policies, which are listed on Schedule 3.27), written contracts and other written agreements or oral, to which any of the Company MPM Companies is a party or by which it is bound, that (collectively, i) are terminable without the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers consent of the applicable MPM Company and that, if terminated, would have a Company Material Adverse Effect, or (by dollar amount)ii) involve or may involve (A) obligations (contingent or otherwise) of the Company, each on a consolidated basis for or payments to the fiscal year ended December 31Company, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,0005,000, (B) have a remaining term the license of less than one year and can be terminated any Intellectual Property by any of the Company upon notice MPM Companies to any other Person or by any other Person to any of 60 days the MPM Companies, (C) provisions restricting the development, manufacture or less without material cost distribution of any of the MPM Companies’ products or penaltyservices, or (D) indemnification by any of the MPM Companies with respect to infringement of proprietary rights, or (iii) are otherwise material to the business and operations of any oral “at will” employment arrangements;of the MPM Companies.
(kb) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other Each agreement, contract, lease, license, instrument understanding, arrangement or other commitment binding upon the Companywhich is required to be set forth in Schedule 3.15(a) (each, a “Material Contract”) is in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum full force and effect and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may where the failure to be limited by applicable bankruptcyin full force and effect or valid, insolvencybinding and enforceable would not have a Company Material Adverse Effect. The Company has provided Investor with true and complete copies of all Material Contracts, reorganizationtogether with all amendments, moratorium waivers or similar Law affecting other changes thereto.
(c) None of the rights of creditors generally; (ii) the Company MPM Companies nor any other party is not (with or without the lapse of time or the giving of noticein violation of, or both) in breach or default andunder, to the Knowledge of the Company, no other party to such any Material Contract is in breach or default thereunderContract, and no event has occurred which with notice, lapse of time or circumstance exists that both would constitute a breach violation or default thereunder. Except as set forth on Schedule 3.15(c), the execution and delivery by each of the MPM Companies of the Transaction Documents to which it is a party, and consummation of the transactions contemplated thereby (including without limitation the sale and delivery by the Company orof the Shares pursuant to this Agreement) will not, to with or without the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred passage of time or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification giving of any obligation or loss of any benefit undernotice, result in any payment becoming due such violation of, or constitute a default under, or result in the imposition of any Lien on Material Contract. The MPM Companies have not received from any of the Company’s securities or any of the properties or assets of the Company under any such party to a Material Contract (other than Permitted Liens) nor has the Company given a notice of its intention to cancel, terminate or received written notice alleging the same; and (v) the other party fail to the Material Contract has not repudiated in writing any portion of renew such Material Contract.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists (a) Except as set forth in Section 4.11 of the following written contracts and other written agreements to which the Company Buyer Disclosure Schedule, neither Buyer nor any of its Subsidiaries is a party (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);bound by:
(i) any agreement with any Affiliate for the purchase of the Company materials, supplies, goods, services, equipment or other assets providing for either (other A) annual payments by Buyer and its Subsidiaries of US$2,000,000 or more or (B) aggregate payments by Buyer and its Subsidiaries of US$2,000,000 or more, in each case that cannot be terminated on not more than 60 days’ notice without payment by Buyer or any such Subsidiary of any material penalty;
(ii) any sales, distribution or other similar agreement providing for the sale by Buyer or any of its Subsidiaries of materials, supplies, goods, services, equipment or other assets that will be terminated at provides for annual payments to Buyer and its Subsidiaries of US$2,000,000 or prior more;
(iii) any material partnership, joint venture, dealer, distribution or other similar agreement or arrangement;
(iv) any agreement relating to the Closingacquisition or disposition of any material business (whether by merger, sale of stock, sale of assets or otherwise);
(jv) any agreementagreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, plan whether incurred, assumed, guaranteed or arrangement secured by which the Company is bound with regard to employmentany asset), consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) except any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either such agreement (A) require future payments by the Company of less than $100,000, with an aggregate outstanding principal amount not exceeding US$2,000,000 or (B) have a remaining term entered into subsequent to the date of less than one year and can be terminated this Agreement as permitted by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangementsSection 6.01;
(kvi) any material agreement under which that limits the Company has advanced freedom of Buyer or loaned any amount of its Subsidiaries to compete in any employee (other than advances line of business or with any Person or in the Ordinary Course of Business)any area;
(lvii) any settlement, conciliation contract or similar agreement entered by any Governmental Authority whereby commitment relating to capital expenditures and involving future payments in excess of US$2,000,000 individually or US$2,000,000 in the Company is under an obligation to perform activities, refrain from activities and/or pay money; andaggregate;
(mviii) any employment agreement with or offer letter to an employee or individual consultant, contractor, or salesperson of Buyer or any of its Subsidiaries, providing for annual payments of US$ 2,000,000 or more;
(ix) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of Buyer or any of its Subsidiaries; or
(x) any other agreement, commitment, arrangement or plan not made in the ordinary course of business that is material to Buyer and its Subsidiaries, taken as a whole.
(b) Each agreement, contract, plan, lease, license, instrument arrangement or commitment required to be disclosed pursuant to this Section is a valid and binding upon agreement of Buyer or a Subsidiary of Buyer, as the Companycase may be, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice in full force and effect, and none of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and completeBuyer, in all material respects, copy any of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, andits Subsidiaries or, to the Knowledge of Buyer, any other party thereto is in default or breach in any respect under the Companyterms of any such agreement, the other parties theretocontract, in accordance with its termsplan, lease, arrangement or commitment, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by for any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such defaults or breaches which would not have a Buyer Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractAdverse Effect.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists (a) Section 3.7(a) of the Company Disclosure Schedules sets forth a list of the following written contracts and other written agreements Contracts to which which, as of the date of this Agreement, a Group Company is a party or any properties and assets of the Company are bound (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”):
(ai) any agreement Contract with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases any Material Customer or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableMaterial Vendor;
(bii) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order Contract relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business Indebtedness of any type or in any location;
(g) any agreement (i) relating to the licensing by Group Company or to the Company placing of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a any Permitted Lien) on any material assets or properties of its assetsany Group Company, in each case, in an amount in excess of $1,000,000;
(iii) any Contract under which any Group Company is lessee of or holds or operates, in each case, any tangible or intangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $1,000,000;
(iv) any Contract under which any Group Company is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by such Group Company, except for any lease or agreement that will under which the aggregate annual rental payments do not exceed $1,000,000;
(v) any joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, in each case, which requires, or would reasonably be terminated at expected to require (based on any occurrence, development, activity or prior event contemplated by such Contract), aggregate payments to or from any Group Company in excess of $1,000,000 over the Closinglife of the Contract;
(vi) any Contract (A) with respect to Company Licensed Intellectual Property (other than licenses to Off-the-Shelf Software and licenses to Public Software) (collectively, the “Inbound Licenses”) and (B) under which any Group Company grants to any third party a license or any other right to any Company Owned Intellectual Property, other than non-exclusive licenses granted to customers in connection with the sale or provision of a Group Company’s products or services in the ordinary course of business (collectively, the “Outbound Licenses”, and together with the Inbound Licenses, the “IP Licenses”);
(ivii) any agreement with any Affiliate of the Company (other than any such agreement Contract that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by limits or purports to limit, in any material respect, the freedom of any Group Company to engage or compete in any line of less than $100,000business or with any Person or in any area, (B) have a remaining term contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions, (C) contains any other provisions restricting or purporting to restrict in any material respect the ability of less than one year and can be terminated by the any Group Company upon notice of 60 days to sell, manufacture, develop, commercialize, test or less without material cost research products, directly or penaltyindirectly through third parties, or to solicit any potential employee or customer or (iiiD) limits or purports to limit any oral “at will” employment arrangementsGroup Company’s ability to use or enforce any Company Owned Intellectual Property, including, in each case, any non-competition, settlement, coexistence, or standstill agreements;
(kviii) any agreement under which Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by any Group Company in an amount in excess of $1,000,000 annually;
(ix) any Contract requiring any Group Company to guarantee the Company has advanced or loaned Liabilities of any amount to any employee Person (other than advances the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a Group Company, in the Ordinary Course each case in excess of Business)$1,000,000;
(lx) any Contract under which any Group Company has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person or made any capital contribution to, or other investment in, any Person;
(xi) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedules;
(xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any Company Product or any Intellectual Property;
(xiii) any Contract for the disposition of any portion of the assets or business of any Group Company or for the acquisition by any Group Company of the assets or business of any other Person (other than acquisitions or dispositions made in the ordinary course of business), or under which any Group Company has any continuing obligation with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation;
(xiv) any settlement, conciliation or similar agreement entered by Contract (A) the performance of which would be reasonably likely to involve any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum 1,000,000 after the date of this Agreement, (B) with a Governmental Entity or (C) that imposes or is reasonably likely to impose, at any time in the future, any material, non-monetary obligations on any Group Company;
(xv) any other Contract the performance of which requires annual payments to or from any Company Group in excess of $1,000,000 and that is not terminable by the applicable Group Company without penalty upon notice less than thirty (30) days’ prior written notice;
(xvi) any Contract with a Third Party Payor; and
(xvii) any Contract with a Governmental Entity.
(a) Except for any Material Contract that has terminated or will terminate upon the expiration of sixty days the stated term thereof prior to the Closing Date or less without substantial cost or penalty. The Company has made available except as would not reasonably be expected to Buyer an accurate and completebe material to the Group Companies, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such each Material Contract is legal, valid, valid and binding and enforceable against on the Company, applicable Group Company and, to the Knowledge knowledge of the Company, the other parties counterparty thereto, and is in accordance with its termsfull force and effect, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the applicable Group Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge knowledge of the Company, no other party to such the counterparties thereto, have not materially breached or defaulted under any Material Contract, and (iii) there does not exist under any Material Contract is in breach any event which, with the giving of notice or default thereunderthe lapse of time, and no event has occurred or circumstance exists that would constitute such a material breach or default by the any Group Company or, to the knowledge of the Company’s Knowledge, by any such other party; (iii) the . No Group Company has performed all material obligations previously required received any written notice that any Person intends to terminate, cancel, or not renew any Material Contract. Except as would not reasonably be expected to be performed by it under such Material Contract; (iv) material to the Company’s KnowledgeGroup Companies, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification the consummation of any obligation or loss of any benefit under, result in any payment becoming due under, the transactions contemplated hereby will not cause or result in the imposition early expiration or termination of any Lien on Material Contract, or the acceleration of any payment, the addition of any fees or charges, the vesting or phasing out of any rights or interests, or any other obligation that would not have arisen but for the consummation of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contracttransactions contemplated hereby.
Appears in 1 contract
Sources: Business Combination Agreement (Longview Acquisition Corp. II)
Material Contracts. Schedule 5.13 lists the following written contracts and other written agreements to which the Company is a party (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of Except as disclosed in Exhibit 3.15(a) hereto, the Company (by dollar amount)or its Assets, each on business, or operations) is not a consolidated basis for the fiscal year ended December 31party to, 2010 and setting forth the approximate dollar amount is not bound by, and the approximate percentage of consolidated gross purchases or consolidated gross salesdoes not receive benefits under, as applicable, attributable to such supplier or customer, as applicable;
(bi) any agreement (employment, severance, termination, consulting, or group of related agreements) retirement Contract providing for the lease of personal property aggregate payments to or from any Person providing for lease payments in any calendar year in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business25,000, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (Contract or group of related agreements) indemnity under which the Company has created, incurred, assumed or guaranteed debt including without limitation any Indebtedness (other than Intercompany Obligations) indebtedness for borrowed money, Warehouse Lines or any agreement evidencing capitalized lease or under which purchase money obligation by the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonusesCompany, or success feesby its employees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13officers or directors, (ii) any agreements that either (A) require future payments or the guarantee by the Company of less than $100,000any such obligation, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
Contract, including, without limitation, agreements or memoranda of understanding with any Regulatory Authority, which prohibits or restricts the Company from engaging in any of its business activities, (kiv) any agreement under which the Company has advanced Contract between or loaned among Affiliates or any amount extensions of credit outstanding to clients, employees or any employee third parties, (other than advances in the Ordinary Course of Business);
(lv) any settlementContract relating to the provision of data processing, conciliation network communication, or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments technical services provided to or by the Company in excess of $100,000 per annum and Company, (vi) any exchange traded or over-the-counter swap, forward, future, option, cap, floor, or collar financial Contract, or any other interest rate or foreign currency protection Contract not included on its balance sheet which is not terminable a financial derivative Contract, (vii) any other Contract or amendment thereto that would be required to be filed as an exhibit to a Form 10-K filed by the Company upon notice with the SEC (assuming the Company were subject to the reporting requirements of sixty days the ▇▇▇▇ ▇▇▇) as of the date of this Agreement, (viii) any agreement (including all master commitments and Pool purchase contracts) between the Company and any Agency or less without substantial cost Investor pursuant to which the Company sold more than $10 million in principal amount of Mortgage Loans since 1999, (ix) any agreement between the Company and any Investor pursuant to which the Company sold more than $250,000 in mortgage servicing rights since 1999, and (x) all insurance or penaltyguaranty contracts, including contracts with any private mortgage insurer or Pool insurance provider with respect to the Mortgage Loans (together with all Contracts referred to in Section 3.15(a), the "Company Contracts"). The All Company has made available to Buyer an accurate Contracts are properly accrued for in accordance with GAAP as of the date hereof and complete, in all material respects, copy as of each Material Contract. the Closing Date.
(b) With respect to each Material Contractthe Company Contract and except as disclosed in Exhibit 3.15(b) hereto: (i) such Material each Company Contract is legalin full force and effect; (ii) the Company is in Default or alleged to be in Default thereunder, valid, binding (iii) the Company has not repudiated or waived any material provision of the Company Contract; and enforceable against (iv) no other party to the Company, andCompany Contract is, to the Knowledge of the Company, the other parties theretoin Default in any respect or has repudiated or waived any material provision thereunder.
(c) Except as disclosed in Exhibit 3.15(c) hereto, in accordance with its termsno officer, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium director or similar Law affecting the rights employee of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, party to the Knowledge Company Contract which restricts or prohibits such officer, director or employee from engaging in activities competitive with any Person, including the Company.
(d) All of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets indebtedness of the Company under for any such Material Contract (other than Permitted Liens) nor has the Company given money borrowed is prepayable at any time without penalty or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractpremium.
Appears in 1 contract
Sources: Acquisition Agreement (Netbank Inc)
Material Contracts. Schedule 5.13 lists (a) Except as set forth on Section 2.10(a) of the following Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to any written contracts and or oral (in each case, to the extent still in effect):
(i) Contract relating to loans to or from a Representative or Affiliate of the Company;
(ii) Contract relating to the borrowing of money (whether incurred, assumed, guaranteed or secured by any asset) or the mortgaging, pledging, or otherwise placing a Lien (other written agreements than Permitted Liens) on any asset of the Company or any of its Subsidiaries involving an amount in excess of $25,000;
(iii) Guarantee of any obligation in excess of $25,000;
(iv) Contract under which the Company or any of its Subsidiaries, individually or in the aggregate, has advanced or loaned any Person amounts involving an amount in excess of $5,000 individually, or $10,000 in the aggregate;
(v) Contract pursuant to which the Company or any of its Subsidiaries is a party (collectively, the “Material Contracts”):
(a) lessor or lessee of any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases real property or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableTangible Personal Property;
(bvi) Employment, independent contractor, consulting, sales, or commissions Contracts;
(vii) advertising or marketing Contracts or any agreement (or group of related agreements) similar such agreements which provide for the lease of personal property to or from any Person providing for lease annual payments in excess of $100,000 per annum25,000;
(cviii) except Contracts providing for any agreement “take or pay” or similar unconditional purchase or payment obligations;
(ix) Contracts (other than purchase orders and similar agreements entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of any materials, supplies, products or other personal propertygoods, products, services, or for the furnishing equipment or receipt licensing of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures rights that involves total remaining payments requires an annual expenditure by the Company or any of its Subsidiaries, individually or in the aggregate, of more than $100,000.
25,000 that cannot be terminated on not more than thirty (e30) calendar days’ notice without payment of any agreement concerning a partnership penalty or joint ventureother amount;
(fx) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conductedpartnership, joint venture, or which expressly restricts other similar agreement or arrangement with any Persons;
(xi) Contracts relating to the ability acquisition of any business (whether by merger, sale of stock, sale of assets, or otherwise) entered into since the inception of the Company to conduct business or any of any type or in any locationits Subsidiaries;
(gxii) any agreement (i) relating to the licensing by Contracts containing covenants regarding exclusivity, non-competition, non-solicitation, most-favored-nations pricing or to similar pricing restrictions, or otherwise prohibiting the Company or any of Business its Subsidiaries from engaging in any line of business or freely conducting its business or competing anywhere in the world;
(xiii) Contracts for the license, transfer, or sale of technology or other Intellectual Property Rights to or from the Company or any of its Subsidiaries (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the ClosingIncidental Licenses);
(ixiv) Contracts (other than those related to employment or severance which have been, or are required to be, disclosed pursuant to Section 2.10(a)(vi) or Section 2.10(a)(xv)) between the Company or any agreement of its Subsidiaries, on the one hand, and, on the other hand, any officer, employee, director, independent contractor, Affiliate, or consultant of an Stockholder or the Company or any entity in which any Immediate Family Member of any such Person owns any beneficial interest;
(xv) Contracts providing for severance, retention, change of control, or other similar payments or any compensation arising or accelerating as a result of the consummation of the transactions contemplated by this Agreement or any other transactions;
(xvi) Contracts with any Affiliate Material Customer or any Material Supplier; or
(xvii) Contracts not otherwise required to be disclosed pursuant to this Section 2.10(a) that are material to the Business or operations of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required involves payments to or by the Company or any of its Subsidiaries in excess of $100,000 per annum 25,000 in any twelve (12) month period;
(xviii) power of attorney or other similar Contract or grant of agency.
(b) Each Contract set forth on, or required to be set forth on, Section 2.10(a) of the Disclosure Schedule (each, a “Material Contract”) is in full force and effect, and is valid and enforceable by and against the Company and its Subsidiaries in accordance with its respective terms, subject to the General Enforceability Exceptions. Each of the Company and its Subsidiaries, as applicable, has performed in all material respects all obligations required to be performed by it and is not terminable by in receipt of any written Claim of default or Breach under any Material Contract to which the Company upon or its Subsidiaries is subject (including all warranty obligations or otherwise). No event has occurred which with the passage of time or the fiving of notice or both would result in a default, Breach, or even of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such non-compliance under any Material Contract to which the Company or any of its Subsidiaries is legal, valid, binding and enforceable against the Company, and, to subject (including all restrictive covenants). To the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, each counterparty to the Knowledge of the Company, no other party to any such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed in all material respects all obligations previously required to be performed by it and is not in default under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification in Breach of nor in receipt of any obligation written Claim of default or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company Breach under any such Material Contract Contract.
(other than Permitted Liensc) nor has the The Company given or received written notice alleging the same; and (v) the other is not a party to any Government Contract.
(d) The Company has delivered or made available to the Purchaser true, correct, and complete copies of all the Material Contract has not repudiated in writing any portion of such Material ContractContracts.
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule 5.13 lists identifies, as of the date of this Agreement, each of the following written contracts Company Contracts (each, excluding any Collective Bargaining Agreements, Company Plans and other written agreements to which the Company is Leases a party (collectively, the “Material ContractsContract”):
(ai) any material joint venture agreement or similar Contract involving a sharing of profits or revenue based on equity ownership in a Person with any Person that is not an Acquired Company, other than (A) Contracts requiring payment to or by any Acquired Company of license fees in an aggregate amount below $10,000,000 per annum or (B) any reseller or channel partner agreement or commercial partnership agreement;
(ii) any Contracts of the ten largest suppliers and the ten largest customers type required to be set forth in Part 2.8(b) of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableDisclosure Schedule;
(biii) any agreement Contract relating to the development of any Intellectual Property Rights material to the Acquired Companies, taken as a whole, under which such development is ongoing, except for (A) development of Intellectual Property Rights to the Acquired Companies from their employees or group contractors on terms with respect to Intellectual Property Rights consistent in all material respects with standard forms used by the Acquired Companies and Made Available to Parent, (B) Company Outbound Licenses and (C) Company Inbound Licenses.
(iv) any Contract: (A) relating to the disposition or acquisition after the date of related agreementsthis Agreement by any Acquired Company of any assets or any business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) for the lease of personal property to or from any Person providing for lease payments consideration in excess of $100,000 per annum;
20,000,000; or (cB) except for pursuant to which any agreement entered into in the Ordinary Course of Business, Acquired Company will acquire any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal propertyinterest, or for the furnishing or receipt of services;
(d) will make an investment, in any agreementother Person, commitmentother than another Acquired Company, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture20,000,000;
(fv) any Contract imposing any restriction in any material respect on the right or ability of any Acquired Company: (A) to engage in any line of business or compete with, or provide any service to, any other Person or in any geographic area; (B) grants exclusive rights to license, market, sell or deliver any product or service of any Acquired Company; (C) contains any “most favored nation” or similar provision in favor of the counterparty; (D) contains a right of first refusal, first offer or first negotiation or any similar right with respect to a material asset owned by an Acquired Company; or (D) provides for a “sole source” or similar relationship or contains any provision that requires the purchase of all or any portion of an Acquired Company’s requirements from any third party;
(vi) each Contract that provides to another Person the right to purchase, license or otherwise acquire an unlimited quantity of or unlimited usage of Company Products (based on any Acquired Company’s ordinary pricing metrics for such Company Products) for a fixed aggregate price or at no additional charge (including through “enterprise wide,” “unlimited use” or “all you can eat” provisions);
(vii) any mortgage, indenture, guarantee, loan, credit agreement, security agreement containing or other Contract relating to the borrowing of money, extension of credit or granting of an Encumbrance (other than a covenant not Permitted Encumbrance), in each case, for a principal amount in excess of $100,000,000, other than: (A) accounts receivable and accounts payable; (B) loans to, guarantees of obligations of, or capital contributions to compete granted direct or indirect wholly owned Subsidiaries of the Company, in each case, arising or provided in the ordinary course of business consistent with past practice; (C) accrued expenses in the ordinary course of business; (D) extensions of credit to customers in the ordinary course of business and (E) letters of credit in the ordinary course of business;
(viii) any Contract that creates any obligation under any interest rate, currency or commodity derivative or hedging transaction (other than any such transaction in the ordinary course of business);
(ix) any Contract with a Major Customer or a Major Supplier;
(x) any settlement of a Legal Proceeding: (A) that materially restricts or imposes any material obligation on any Acquired Company (including co-existence agreements and any Contracts restricting registrations, use or licensing of Company IP) or materially disrupts the business of any of the Acquired Companies as currently conducted; or (B) that would require any of the Acquired Companies to pay consideration valued at more than $5,000,000 in the aggregate after the date of this Agreement;
(xi) any Government Contract with an annual contract value in excess of $10,000,000;
(xii) any Contract (other than a Contract evidencing any Company Equity Award on the form or forms used by the Company in favor the ordinary course of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company and Made Available to conduct business of any type or in any location;
Parent): (g) any agreement (iA) relating to the licensing by acquisition, issuance, voting, registration, sale or to transfer of any security of the Company of Business Intellectual Property Rights (Company, other than licenses any non-disclosure agreement or similar Contract; (B) providing any Person with any preemptive right, right of commercially availableparticipation, off-the-shelf softwareright of maintenance or any similar right with respect to any security of the Company; or (C) and (ii) that is material providing any Person with any right of first refusal or similar right with respect to, or right to the business repurchase or redeem, any security of the Company;
(hxiii) any agreement Contract not disclosed against another subsection of this Section 2.9(a) that is a “material contract” (or group as such term is defined in Item 601(b)(10) of related agreements) Regulation S-K under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the ClosingExchange Act);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(mxiv) any other agreement, contract, lease, license, instrument Contract that is not listed in subsections (i)-(xiii) above and that contemplates or commitment binding upon involves the Company, payment or delivery of cash or other consideration by or to any Acquired Company in each case not included in clauses (a) through (l) above, which has future required payments to an amount or by the Company having a value in excess of $100,000 per annum and is not terminable 10,000,000 over the 12 month period following the date of this Agreement, or contemplates or involves the performance of services by or for any Acquired Company having a value in excess of $10,000,000 over the 12 month period following the date of this Agreement, other than a Contract or purchase order for the sale or purchase of products or services in the ordinary course of business.
(b) Each Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Contract that constitutes a Material Contract is legalvalid and in full force and effect, valid, binding and is enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, subject to the Enforceability Exceptions, except as enforcement may would not reasonably be limited by applicable bankruptcyexpected to have a Material Adverse Effect on the Company. None of the Acquired Companies, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach Person, has materially violated or breached, or committed any material default thereunderunder, any Company Contract. To the Knowledge of the Company, as of the date hereof, no event has occurred, and no event circumstance or condition exists, that (with or without notice or lapse of time) could reasonably be expected to: (i) result in a material violation or breach of any of the provisions of any Material Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Material Contract; (iii) give any Person the right to accelerate the maturity or performance of any Material Contract; or (iv) give any Person the right to cancel, terminate or modify any Material Contract. Between January 1, 2021 and the date hereof, none of the Acquired Companies has occurred or circumstance exists that would constitute a breach or default by the Company received any written notice or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any Knowledge of the Company’s securities , other communication regarding any actual or possible material violation or breach of, or material default under, any Material Contract. The Company has Made Available to Parent an accurate and complete copy of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such each Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Ansys Inc)
Material Contracts. Schedule 5.13 lists Except as disclosed in Section 5.16 of the following written contracts and other written agreements to which ▇▇▇▇▇ Disclosure Memorandum or otherwise reflected in the Company ▇▇▇▇▇ Financial Statements, none of the ▇▇▇▇▇ Entities, nor any of their respective Assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, (collectively, the “Material Contracts”):
(ai) any agreement employment, severance, termination, consulting, or retirement Contract, (ii) any Contract relating to the borrowing of money by any ▇▇▇▇▇ Entity or the guarantee by any ▇▇▇▇▇ Entity of any such obligation (other than Contracts evidencing deposit liabilities, purchases of federal funds, fully-secured repurchase agreements, and Federal Home Loan Bank advances of depository institution Subsidiaries, trade payables and Contracts relating to borrowings or guarantees made in the ordinary course of business), (iii) any Contract which prohibits or restricts any ▇▇▇▇▇ Entity from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (iv) any Contract between or among ▇▇▇▇▇ Entities, (v) any Contract involving Intellectual Property (other than Contracts entered into in the ordinary course with customers and "shrink-wrap" software licenses), (vi) any Contract relating to the provision of data processing, network communication, or other technical services to or by any ▇▇▇▇▇ Entity, (vii) any Contract relating to the purchase or sale of any goods or services (other than Contracts entered into in the ordinary course of business and involving payments under any individual Contract not in excess of $25,000), (viii) any exchange-traded or over-the-counter swap, forward, future, option, cap, floor, or collar financial Contract, or any other interest rate or foreign currency protection Contract not included on its balance sheet which is a financial derivative Contract, and (ix) any other Contract or amendment thereto that would be required to be filed as an exhibit to a Form 10-KSB filed by ▇▇▇▇▇ with the ten largest suppliers and the ten largest customers SEC as of the Company (by dollar amount), each on a consolidated basis date of this Agreement that has not been filed as an exhibit to Bryan's Form 10-K filed for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property1996, or for in an SEC Document and identified to Savannah (together with all Contracts referred to in Sections 5.10 and 5.15(a), the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing"▇▇▇▇▇ Contracts");
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract▇▇▇▇▇ Contract and except as disclosed in Section 5.16 of the ▇▇▇▇▇ Disclosure Memorandum: (i) such Material the Contract is legalin full force and effect; (ii) no ▇▇▇▇▇ Entity is in Default thereunder, validother than Defaults which are not reasonably likely to have, binding individually or in the aggregate, a ▇▇▇▇▇ Material Adverse Effect; (iii) no ▇▇▇▇▇ Entity has repudiated or waived any material provision of any such Contract; and enforceable against the Company, and(iv) no other party to any such Contract is, to the Knowledge of the Company, the other parties thereto▇▇▇▇▇, in accordance with its termsDefault in any respect, except as enforcement may be limited by applicable bankruptcyother than Defaults which are not reasonably likely to have, insolvencyindividually or in the aggregate, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticea ▇▇▇▇▇ Material AdverseEffect, or both) in breach has repudiated or default and, to the Knowledge waived any material provision thereunder. All of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification indebtedness of any obligation ▇▇▇▇▇ Entity for money borrowed is prepayable at any time by such ▇▇▇▇▇ Entity without penalty or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractpremium.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists the following written contracts and other written (a) Except for this Agreement, agreements filed as exhibits to which the Company SEC Documents or as set forth in Section 3.18 of the Company Disclosure Letter, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or expressly bound by any Contract (collectively, the “Material Contracts”):excluding any Company Benefit Plan) that:
(ai) any agreement with the ten largest suppliers and the ten largest customers is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act); 4 Note to Draft: Subject to review by Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable financial advisors. To conform to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000final fairness opinions.
(eii) relates to any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, partnership, limited liability company or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) other similar Contract relating to the licensing by formation, creation, operation, management or to the Company control of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) any joint venture or partnership that is material to the business of the CompanyCompany and its Subsidiaries, taken as a whole;
(hiii) any agreement (A) is an indenture, credit agreement, loan agreement, note, guaranty, or group other Contract providing for or securing indebtedness for borrowed money of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness if its Subsidiaries (other than Intercompany Obligationsindebtedness among the Company and/or any of its Subsidiaries) in excess of $20,000,000 or any agreement evidencing or (B) is a Contract under which the Company it has imposed a Lien advanced or loaned to any other Person (other than a Permitted Lien) on the Company or any of its assetsSubsidiaries) amounts in excess of $20,000,000;
(iv) required the payment or delivery of cash or other consideration by or to the Company or its Subsidiaries in an amount in excess of $50,000,000 in the fiscal year ended December 31, tangible 2022, and cannot be cancelled by the Company or intangible its Subsidiaries without penalty or further payment without more than sixty (60) days’ notice (other than any such agreement that will be terminated at or prior payments for services rendered to the Closingdate);
(iv) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by Contract (A) with any Governmental Authority whereby Entity or (B) which would require the Company is under an obligation or any of its Subsidiaries to perform activities, refrain from activities and/or pay money; andconsideration of more than $10,000,000 after the date of this Agreement or (C) that subjects the Company or any of its Subsidiaries to material future limitations on the operation of the Company or its Subsidiaries;
(mvi) relates to the pending acquisition or disposition of any other agreementbusiness (whether by merger, contractsale of stock, lease, license, instrument sale of assets or commitment binding upon the Company, in each case not included in clauses (aotherwise) through (l) above, which has future required payments to or by the Company any real property having an aggregate purchase price in excess of $100,000 per annum 20,000,000;
(vii) (A) contains any covenant that materially limits the ability of the Company or any of its Subsidiaries (including, following the Closing, Parent or its Affiliates) to engage in any line of business, or to compete with any Person or operate at any geographic location or (B) contains any take-or-pay requirements where the Company or its Subsidiaries are purchaser or “exclusivity” or any similar requirements in favor of any third party or grants any rights of first refusal, rights of first negotiation, or “most favored nation” rights to any third party that, in each case, is material to the business of the Company and is not terminable its Subsidiaries, taken as a whole;
(viii) relating to the disposition or acquisition by the Company upon notice or its Subsidiaries of sixty days any business, product line or less without substantial cost other material assets with continuing material indemnification obligations of the Company or penaltyits Subsidiaries, or any material remaining “earn out” or other contingent payment or consideration obligations of the Company or its Subsidiaries that has not been substantially satisfied prior to the date of this Agreement;
(ix) relating to any interest rate, foreign exchange, derivatives or hedging transaction with a notional amount equal to or greater than $20,000,000;
(x) is any Collective Bargaining Agreement;
(xi) any Government Contract that is material to the conduct of the business of the Company and its Subsidiaries, taken as a whole; or
(xii) the termination of which reasonably would be expected to have or result in a Company Material Adverse Effect. The Each Contract of the type described in this Section 3.18(a) is referred to herein as a “Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each .”
(b) Neither the Company nor any Subsidiary of the Company is in breach of or in default under the terms of any Company Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against no event or condition exists that after notice or lapse of time or both would constitute a breach of or default by the Company or any Subsidiary of the Company, and, or to the Knowledge of the Company, the any other parties party thereto, under the terms of any Company Material Contract, in accordance with its termseach case, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in where such breach or default andwould have, to individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, no other party to such any Company Material Contract is in breach of or default thereunder, and no event has occurred or circumstance exists that would constitute a under the terms of any Company Material Contract where such breach or default by would have, individually or in the aggregate, a Company Material Adverse Effect. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is a valid and binding obligation of the Company oror the Subsidiary of the Company that is party thereto and, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any Knowledge of the Company’s securities , of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or any 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 properties or assets court before which any proceeding therefor may be brought (the “Bankruptcy and Equity Exceptions”). The Company has made available to Parent a true and complete copy of the each written Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party including copies of any amendments that may have been entered into prior to the Material Contract has not repudiated in writing any portion of such Material Contractdate hereof).
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 lists 3.12 of the Stockholder Disclosure Schedule contains a true, correct and complete list, as of the date hereof, of the following written contracts and other written agreements Contracts (each, a “Material Contract”) to which any of the Company Companies, or in respect of the Business, Stockholder and its Affiliates is a party (collectivelyor bound by, and, in each case, to which any of them will continue to be a party to or bound by, or under which the “Material Contracts”):Business Assets may be bound or have any obligations, following the Closing:
(ai) any agreement with the ten largest suppliers and the ten largest customers leases of the Company (by dollar amount)real or personal property or equipment leases, each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage except leases of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicablepersonal property that require payment during their remaining term of less than $250,000;
(bii) loan or credit agreements, indentures, mortgages, security agreements or other agreements or instruments relating to Indebtedness (other than in connection with the Debt Financing);
(iii) fidelity or surety bonds or completion bonds and the agreements pursuant to which such bonds are issued;
(iv) agreements of indemnification or guaranty of another Person (other than customary indemnification provisions contained in Company Contracts with Customers);
(v) Contracts containing any covenant limiting the ability of any of the Companies in any material respect to engage in the Business;
(vi) any agreement agreements, contracts or commitments relating to capital expenditures involving future payments of $250,000 or more (it being understood and agreed that such expenditures shall not be deemed to include any potential penalties regarding a violation of a term related to the level of service under such agreement, contract or group commitment);
(vii) Contracts relating to the disposition of related agreementsBusiness Assets outside the Ordinary Course or the disposition of any operating business of any Company or the capital stock or other equity interests of any other Person;
(viii) Contracts relating to the acquisition of (A) any asset for consideration in excess of $250,000 or (B) any operating business or the lease capital stock or other equity interests of personal property any other Person outside the Ordinary Course;
(ix) Contracts between any of the Companies, on the one hand, and any of their respective Affiliates (other than the Companies), directors or officers (“Related Persons”), on the other hand (the “Related Party Agreements”);
(x) Contracts with any Government Entity (including any electronic benefit transfer Contracts);
(xi) Contracts with any customer, supplier, consultant, vendor, or similar Person reasonably expected to or from any Person providing provide for lease payments in excess of $100,000 per annum250,000 during the twelve (12) month period ended on the last day of the calendar month immediately preceding the date hereof (or pursuant to which any such Person is reasonably expected to pay in excess of such amount during any twelve month period commencing on or after January 1, 2010);
(cxii) Contracts under which any third-party is authorized to sell, sublicense, lease, distribute, re-sell, market or take orders for, any product or service to be provided by one of the Companies or the Business;
(xiii) Contracts set forth in Schedule 3.10(a)(ii);
(xiv) Shareholder or equivalent agreements, powers of attorney (except for any agreement as entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf softwareCourse) and settlement agreements (ii) that is material to except as entered into in the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the ClosingOrdinary Course);
(ixv) Each material indirect processor agreement with a processor that has a merchant agreement with a Top 25 US Retail Merchant.
(xvi) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any membership, license, sponsorship agreement, plan or arrangement by which the Company is bound with regard to employmentgateway agreement, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonusesterminal sharing, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have similar Contract with a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay moneyCard Association; and
(mxvii) all current material insurance policies of any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses .
(ab) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Each Material Contract is legal, valid, binding in full force and effect and is enforceable against the Company, Companies party thereto and, to the Knowledge of the CompanyStockholder’s Knowledge, the other parties thereto, counterparty thereto in accordance with its termsthe express terms thereof, and upon consummation of the Transactions, shall continue in full force and effect without penalty or other adverse consequence, except as enforcement to the extent that its enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Law Laws affecting the enforcement of creditors’ rights generally and by general equitable principles (except those Material Contracts that are cancelled, rescinded or terminated after the date hereof in accordance with their terms and this Agreement).
(c) There does not exist under any Material Contract any material violation, breach or event of creditors generally; default, or alleged violation, breach or event of default, or event or condition that, after notice or lapse of time or both, would constitute a violation, breach or event of default thereunder on the part of any of the Companies, Stockholder or any of their respective Affiliates or, to Stockholder’s Knowledge, any other party thereto.
(d) There are no disputes pending or threatened under any Material Contract that would have a Material Adverse Effect.
(e) Except as set forth in Schedule 12(e) of the Stockholder Disclosure Schedule, all Merchant Agreements provide for a Customer service charge for credit card transactions and/or debit card transactions that meets or exceeds interchange fees charged by the applicable Card Association.
(f) True, correct and complete copies of each Material Contract (or true, correct and complete summaries of any Material Contract that is not in writing) have been made available to Parent in the Dataroom. A true, correct and complete copy of the current version of the standard form of (i) the Merchant Agreement (including the Standard Merchant Agreement ), (ii) the Company is not (with or without Westernbank Merchant Agreement as defined in the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; Business Transfer Agreement (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; TicketPop Agreement, (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities master customer agreement and (iv) ATH Network participation agreement each as presently used by Stockholder or any of its Affiliates have been made available to Parent in the properties or assets Dataroom. Schedule 3.12(e) of the Company under any such Material Contract (Stockholder Disclosure Schedule set forth a true, correct and complete list of each other than Permitted Liens) nor has materially different version of the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion standard form of such Material Contractagreements used by such parties during the last five (5) years. All such standard form contracts were created by Stockholder or its Affiliates in accordance with its then current customary credit review and acceptance criteria for the Business, which in all cases were in material compliance with any applicable Network Rules.
Appears in 1 contract
Sources: Merger Agreement (Popular Inc)
Material Contracts. (a) Schedule 5.13 3.8(a) lists each of the following written contracts and other written agreements of the Target Companies (x) entered into within the past five (5) years or (y) for which there are continuing Liabilities or obligations on the Target Company (together with all other contracts required to which the Company is a party (be listed, collectively, the “Material Contracts”):
): (ai) any each agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments involving aggregate consideration in excess of $100,000 per annum;
the Threshold Amount or requiring performance by any party more than one year from the Closing Date; (cii) except for all agreements that relate to the sale of any agreement entered into business, an equity interest or assets of any Person or any real property, other than the sale of inventory of the Target Companies in the Ordinary Course of Business, any agreement (or group for consideration in excess of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or 1,000,000; (iii) all agreements that relate to the acquisition of any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced business, a material amount of equity or loaned any amount to any employee (other than advances in the Ordinary Course assets of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreementPerson or any real property (whether by merger, contractsale of stock or other equity interests, leaseacquisition of assets, license, instrument or commitment binding upon the Companyotherwise), in each case not included involving amounts in clauses excess of $1,000,000; (aiv) through except for agreements relating to trade payables, all agreements relating to Indebtedness in excess of $500,000; (lv) aboveall agreements with respect to Related Party Transactions; (vi) all collective bargaining agreements or agreements with any labor organization, which union, or association; (vii) contract or agreement involving amounts in excess of $500,000, in the aggregate, containing (A) a fixed cost, fixed price, volume requirement or other floor or similar requirement or (B) an “earn-out” or other contingent payment obligation; (viii) consulting agreement or contract providing for the employment or engagement of any Company Service Provider on a full-time, part-time or consulting basis, in each case (A) whereby such individual has future required payments to or by the Company annual compensation opportunities in excess of $100,000 per annum and is or (B) which cannot terminable by be terminated or cancelled at any time without any penalty or liability; (ix) contract or agreement for capital expenditures in excess of $250,000, in the Company upon notice of sixty days aggregate, for which the underlying assets have not been delivered or less without substantial cost or penalty. The under which a Target Company has made available to Buyer an accurate and completeany outstanding payment obligations; (x) any lease, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium sublease or similar Law affecting the rights of creditors generally; (ii) the agreement pursuant to which any Target Company is not (with holds or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, uses any tangible personal property owned by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification third party having a value of any obligation or loss of any benefit under, result in any payment becoming due under, or result more than $150,000 in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the sameaggregate; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.34
Appears in 1 contract
Sources: Equity Purchase Agreement (Granite Construction Inc)
Material Contracts. Set forth on Schedule 5.13 lists 4.11 is a true and complete list of each of the following written contracts and other written agreements Contracts to which the Company is a party or by which any assets of the Company are bound as of the date of this Agreement (collectively, the “Material Contracts”):
(a) Each Contract that provides for or creates any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount)partnership, each on a consolidated basis joint venture, or similar arrangement or otherwise providing for the fiscal year ended December 31revenue, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases affiliation, alliance, subcontract, limited liability company, cost or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableprofit-sharing;
(b) any agreement (Each Contract limiting the right or group ability of related agreements) for the lease of personal property Company to enter into, engage in or from compete with any Person in any business or in any geographical area;
(c) Each Contract providing for lease payments capital expenditures with an outstanding amount of unpaid obligations and commitments in excess of $100,000 200,000;
(d) Each Contract with respect to indebtedness for borrowed money, including letters of credit, guaranties, indentures, swaps and similar agreements;
(e) Each Contract for the employment of any officer, individual employee or other Person on a full time or consulting basis providing for base salary in excess of $150,000 per annum;
(cf) except for Each Contract that licenses Company Intellectual Property to any agreement entered into in the Ordinary Course of Business, any agreement (Person or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating pursuant to capital expenditures that involves total remaining payments by which the Company licenses Intellectual Property from any Person, excluding (i) licenses of more commercially-available software licensed for annual license fees of less than $100,000.
, (eii) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not nonexclusive licenses granted to compete granted by business relations of the Company in favor the ordinary course of business and (iii) licenses that arise as a third party that impairs matter of law by implication as a result of sales of products and services by the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any locationCompany;
(g) any agreement (i) relating to the licensing by Each vendor or to logistics Contract that requires the Company of Business Intellectual Property Rights (other to make payments equal to more than licenses of commercially available, off-the-shelf software) and (ii) $250,000 in any calendar year that is material to the business of not terminable upon less than 90 days prior written notice by the Company;
(h) any agreement (or group of related agreements) under which Each Contract that requires the Company has incurred, assumed to purchase its total requirements of any product or guaranteed any Indebtedness (other than Intercompany Obligations) service from a third party or any agreement evidencing that contain “take or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing)pay” provisions;
(i) any agreement Each Contract with any Affiliate of a Top Customer or which resulted in net revenue to the Company in excess of $250,000 during the twelve (12) month period ended on March 31, 2021, other than any such agreement that will be terminated at or prior to purchase orders entered into in the Closing)ordinary course of business;
(j) any agreement, plan Each Contract with a Top Supplier or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances resulted in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or expenditures by the Company in excess of $100,000 per annum and is not terminable by 250,000 during the twelve (12) month period ended on March 31, 2021, other than purchase orders entered into in the ordinary course of business;
(k) Each Contract pursuant to which the Company upon notice of sixty days has granted or less without substantial cost provided to any Person, or penalty. The Company any Person has made available granted or provided to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, most favored nations pricing, exclusive rights, rights of first refusal, rights of first offer, or rights of first negotiation or any similar rights or terms;
(l) Each Contract for the sale of any material Assets of the Company other than in the ordinary course of business;
(m) Each Contract with a Governmental Authority or a contractor of a Governmental Authority;
(n) Any power of attorney or similar agreement or grant of agency;
(o) Any Contract with a Related Party; and
(p) Any settlement, conciliation, or similar agreement pursuant to which the Company will have any material outstanding obligations after the date of this Agreement. Each of the Material Contracts is in full force and effect and is a legal, valid and binding agreement of the Company and, to the Knowledge of the CompanySeller’s Knowledge, the other parties counterparties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, subject only to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunderGeneral Enforceability Exceptions, and there is no event has occurred default or circumstance exists that would constitute a breach or default by the Company or, to the CompanySeller’s Knowledge, by any such other party; (iii) party thereto, in the Company has performed all material obligations previously required timely performance of any obligation to be performed by it under or paid thereunder or any other material provision thereof. The Company has not provided or received any written notice of any intention to terminate any such Material Contract; (iv) to the Company’s Knowledge, and no event or circumstance has occurred that, with notice or circumstance exists that lapse of time or both, would result in an event of default thereunder or give the counterparty the right of cancellation or termination thereof or would cause or permit termination, cancellation, acceleration, suspension the acceleration of or adverse modification other changes of or to any right or obligation or the loss of any benefit underthereunder. Seller has provided Buyer with true, result in any payment becoming due undercomplete, and correct copies of, or result access to, all written Material Contracts and all extensions, amendments, attachments, and schedules thereto, and a written description of all Material Contracts that are not in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractwriting.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 4.11 lists all of the following written contracts and other written agreements Contracts to which the Company is a party as of the date hereof: (i) any Contract related to Indebtedness; (ii) any joint venture, partnership or other arrangement involving a sharing of profits involving the Company, other than the LLC Agreement; (iii) any Contract for the acquisition, sale or lease of properties or assets with a value in excess of $1 million other than sales of properties or inventories in the Ordinary Course of Business; (iv) any Contract (A) restricting any right of the Company to compete with any Person or in any line of business or geographic area or during any period of time or (B) restricting any right of the Company to sell to or purchase from any Person, or that grants the other Person “most favored nation” status or exclusivity, other than the Legacy Affiliate Agreements; (v) any Contract or group of related Contracts for capital expenditures in excess of $1 million for any single project or related series of projects; (vi) any Contract with any customer or advertiser under which the Company received revenues in excess of $1 million during the last year; (vii) any services Contract involving payments by the Company in excess of $1 million during the last year; (viii) any Contract which evidences a “trade” or “barter” transaction in which the Company would receive goods or services from the customer or vendor in exchange for furnishing goods or services after the date of this Agreement; (ix) any Contract providing for material indemnification rights or obligations to or from any Person (excluding indemnities contained in agreements for the purchase, sale or license of products or services entered into in the Ordinary Course of Business), other than the LLC Agreement; (x) other than the Legacy Affiliate Agreement and the LLC Agreement, any Contract with any Seller or any Affiliate of any Seller or any director or officer of the Company; (xi) all Legacy Affiliation Agreements (other than Legacy Affiliation Agreements between the Company and Purchaser or any of its Newspaper Affiliates) and similar - 22 - affiliation Contracts for the sale of the Company’s products and services with any Person that is not an Affiliate of Purchaser or any Seller; (xii) any Contract with any Governmental Entity; (xiii) any Contract with employees of or consultants to the Company that involves a commitment for annual consideration with a value in excess of $250,000 that cannot be terminated by the Company without liability upon prior notice of 30 days or less; (xiv) any other Contract that involves annual commitments in excess of $1 million that cannot be terminated by the Company without penalty upon prior notice of 30 days or less.
(b) As of the date hereof, each of the Leases and Contracts listed or required to be listed on Schedules 4.11, 4.12, 4.13(e)(1) or 4.13(e)(2) (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers constitutes a valid and the ten largest customers binding obligation of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at Law)), and is in full force and effect, except where the rights failure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to be material to the Business or the Company. To the Knowledge of creditors generally; (ii) the Company is not (Company, as of the date hereof, no event has occurred and no condition or state of facts exists which, with or without the lapse passage of time or the giving of notice, notice or both) , would constitute any default or breach by the Company or any other party thereto, except for such breaches, defaults, events or conditions that would not, individually or in breach or default andthe aggregate, reasonably be expected to be material to the Knowledge Business or the Company. Complete and correct copies of each of the Material Contracts have heretofore been delivered to Purchaser.
(c) There are no outstanding powers of attorney executed on behalf of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute .
(d) Schedule 4.11(d) sets forth (i) a breach or default by the Company or, list of each Seller’s 20 largest advertising customers with respect to the Company’s KnowledgeBusiness and (ii) all “major accounts” or “national accounts” of ▇▇▇▇.▇▇▇ as provided under the Legacy Affiliate Agreements, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any each case as of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractdate hereof.
Appears in 1 contract
Sources: Unit Purchase Agreement
Material Contracts. (a) As of the date hereof, Section 3.17(a) of the Disclosure Schedule 5.13 lists sets forth a complete and accurate list of each of the following written contracts and other written agreements Contracts to which the Company or any of its Subsidiaries is a party or otherwise bound (any Contract of a nature described below (whether or not set forth on the Disclosure Schedule) to which the Company or any of its Subsidiaries is a party or otherwise bound, being referred to herein as a “Material Contract” and, collectively, as the “Material Contracts”):
(ai) any agreement with the ten largest suppliers and the ten largest customers Employment Agreement granting any change of the Company control, severance, or termination pay (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases in cash or consolidated gross sales, as applicable, attributable equity or otherwise) to such supplier or customer, as applicableany Employee;
(bii) any agreement Contract or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, or any plan providing similar equity awards, for which any benefits will be increased, or for which the vesting of benefits will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (or group any events following the Merger, contingent or otherwise), or for which the value of related agreementsany of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) for the any fidelity or surety bond or completion bond;
(iv) any Lease Agreements or lease of personal property having a value in excess of $10,000 per month individually or for a term of more than one (1) year;
(v) any Contract of indemnification or guaranty, other than customer, reseller, vendor or supplier Contracts entered into in the ordinary course of business consistent with past practice;
(vi) any Contract or commitment relating to or from any Person providing for lease capital expenditures and involving future payments in excess of $100,000 per annum250,000 individually;
(cvii) except for any agreement entered into Contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the Ordinary Course ordinary course of Businessthe Company’s or its Subsidiaries’ business;
(viii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts or instruments relating to the borrowing of money or extension of credit or other Indebtedness;
(ix) any agreement (purchase order or group of related agreements) Contract for the purchase of materials involving in excess of $500,000 individually or sale of supplies, products any purchase order or other personal property, or Contract for the furnishing purchase of materials that constitutes a risk buy, a long lead-time purchase or receipt of services;
(d) any agreement, commitment, or outstanding a purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business outside of the Company;
’s materials requirement planning (hMRP) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Companysystem, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company involving in excess of $100,000 per annum individually
(x) any construction Contracts;
(xi) any Contracts that contain “most favored nation” or preferred pricing provisions;
(xii) any Contract or commitment to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other Contract for use or distribution of the products, technology or services of the Company or any of its Subsidiaries;
(xiv) any other Contract or commitment that involves $250,000 or more and is not terminable by cancelable without penalty within thirty (30) days;
(xv) any Contract limiting the freedom of the Company upon notice or any of sixty days its Subsidiaries to engage in any line of business or less without substantial cost to compete or penalty. The to develop or to distribute or to sell; or
(xvi) In-License (other than Open Source Licenses), (B) Out-License, and (C) all other Intellectual Property Contracts (other than Open Source Licenses), provided that Shrink Wrap Code shall not be listed in Section 3.17(a) of the Disclosure Schedule but shall constitute Material Contracts.
(b) Each Material Contract to which the Company has made available to Buyer an accurate or any of its Subsidiaries is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and completebinding agreement of the Company or such Subsidiary, enforceable against each of the parties thereto in all material respects, copy of each Material Contract. With respect to each Material Contract: accordance with its terms (except that the enforcement thereof may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and is in full force and effect with respect to the Company or such Material Contract is legal, valid, binding and enforceable against the Company, Subsidiary and, to the Knowledge of the Company, the any other parties party thereto. The Company and each of its Subsidiaries is in compliance with and has not breached, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium violated or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticedefaulted under, or both) in breach received written notice that they have breached, violated or default anddefaulted under, any of the terms or conditions of any such Material Contract, nor to the Knowledge of the Company, no other Company is any party obligated to the Company or any of its Subsidiaries pursuant to any such Material Contract is in breach subject to any breach, violation or default thereunder, and no nor does the Company have Knowledge of any event has occurred that with the lapse of time, giving of notice or circumstance exists that both would constitute such a breach breach, violation or default by the Company orCompany, to the Company’s Knowledge, by any of its Subsidiaries or any such other party; (iii) , except in each of the foregoing cases for any such breach, violation or default that would not reasonably be expected, individually or in the aggregate, to be material to the Company has performed all material obligations previously required to be performed by it under such and its Subsidiaries, taken as a whole. True and complete copies of each Material Contract; , including all amendments, supplements and other modifications thereto (iv) to the Company’s Knowledge, no event has occurred whether or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result not disclosed in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party Disclosure Schedule), have been delivered to the Material Contract has not repudiated in writing any portion of such Material ContractParent.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 lists 3.6(a) sets forth a complete and accurate list of the following written contracts and other written agreements to which agreements, and any amendments, modifications or supplements thereto as of the Company is date hereof (each, a party (“Material Contract” and collectively, the “Material Contracts”):
(ai) governing the borrowing of money or the Guarantee or the repayment of Indebtedness or granting of Liens on the assets or property of any agreement with Company;
(ii) providing for the ten largest suppliers and employment of any Person;
(iii) containing covenants limiting the ten largest customers freedom of any of the Company Companies to compete in any line of business or with any Person or in any geographic area or market or not to solicit or hire any Person;
(by dollar amountiv) for which any of the Companies are the recipient or grantor of a license, sublicense (of any tier), each on a consolidated basis covenant not to ▇▇▇ or assert, or immunity from suit of any Intellectual Property, except licenses to software that is generally commercially available;
(v) wherein any of the Companies assigns or is obligated to assign, any title, in whole or in part, solely or jointly, beneficially or actually, with respect to any Intellectual Property, or any entity has an option or other right concerning any of the foregoing;
(vi) with any managers, directors, officers, employees or shareholders of any of the Companies or any Affiliates of ▇▇▇▇▇▇▇;
(vii) providing for the fiscal year ended December 31future or ongoing purchase, 2010 and setting forth maintenance or acquisition, or the approximate dollar amount and sale or furnishing, of materials, supplies, merchandise or equipment (including computer hardware or software or other property or services) in excess of $50,000.00;
(viii) granting to any Person a first-refusal, first-offer or similar preferential right to purchase or acquire any right, asset or property of any Company;
(ix) providing for any offset, countertrade or barter arrangement;
(x) involving a sales representative, broker or advertising arrangement that by its express terms is not terminable by a Company at will or by giving notice of thirty (30) days or less, without liability;
(xi) involving a joint venture or partnership or involving the approximate percentage sharing of consolidated gross purchases profits, losses, costs or consolidated gross salesliability by any Company with any other Person;
(xii) involving management services, as applicableconsulting services, attributable support services or any other similar services;
(xiii) involving the acquisition of any business enterprise whether via stock or asset purchase or otherwise; or
(xiv) granting a power of attorney to such supplier or customer, as applicable;any Person.
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business Except as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.133.6(a) attached hereto and incorporated herein, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the no Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments a party to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days bound by, whether written or less without substantial cost or penalty. The Company has made available to Buyer an accurate and completeoral, in all material respects, copy of each any Material Contract. With respect to each Material Contract: (i) such Each Material Contract is legal, a valid, binding and an enforceable against the Company, and, to the Knowledge obligation of the CompanyCompanies. Each of the Companies are not in default with respect to their obligations or liabilities under any of the Material Contracts, the other parties theretoand to ▇▇▇▇▇▇▇’▇ Knowledge, no third party is in accordance default under any Material Contract. To ▇▇▇▇▇▇▇’▇ Knowledge, there has not occurred any event or events that with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, notice or both) in breach or default and, to both would constitute such a default. Neither the Knowledge execution and delivery of this Agreement nor the consummation of the Company, no transactions contemplated hereby will afford any other party to such a Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, right to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of terminate such Material Contract.
Appears in 1 contract
Sources: Membership Interest Contribution Agreement (Wheeler Real Estate Investment Trust, Inc.)
Material Contracts. (a) Schedule 5.13 3.17 hereto lists all agreements, contracts, franchises, indentures, guarantees, plans, leases, rent or occupancy agreements, licenses, installment sales agreements, conditional sales agreements, indentures, letters of credit, evidences of indebtedness, arrangements, commitments, powers of attorney, promises, assurances, undertakings, commitments or other obligations (collectively, “Contracts”) of the following Company, of the types set forth below:
1. Each Contract that involves the performances of services or delivery of goods or materials by the Company of an amount or a value in excess of $10,000 annually;
2. Each Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property by or of the Company;
3. Each Contract with, or programs or policies applicable to, employees of the Company that provides for (a) severance or termination pay liabilities or obligations in the event that the employment or retention of any employee of the Company is terminated, or (b) the payment of sales or performance incentive bonuses;
4. Each Contract which in any way limits or purports to limit the Company from carrying on its business activities or limits or purports to limit the freedom of the Company to compete or engage in any line of business or with any person or in any area or which would otherwise limit or purports to limit the Company’s business or operations after the Closing;
5. Each Contract relating to indebtedness for borrowed or loaned money or the deferred purchase of property, real or personal, whether incurred, assumed, guaranteed, or secured by any asset, involving in any one case in excess of $10,000;
6. The forms of Contract entered into by the Company and its independent contractor physicians, and copies of any agreements entered into by the Company and any independent contractor physician which materially deviates in substance (financial or otherwise) from such form;
7. Each Contract with any officer, director or shareholder of the Company;
8. Each Contract for capital expenditures by the Company in excess of $10,000;
9. Each Contract with any employee, written contracts or oral, providing for future compensation and/or a guaranteed term of employment;
10. Each written partnership or joint venture arrangement or agreement entered into, assumed or acquired by the Company;
11. Each Contract between the Company and any paramedical examination company;
12. Any other written agreements Contract not made in the ordinary course of business which is material to the Company (financial or otherwise);
13. Each Contract with an insurance carrier under which the Company is to provide services; and
14. Any other Contract in an amount in excess of $10,000 to which the Company is a party (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed it or its assets are bound which is for a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to term which extends beyond one year after the Closing);
(i) any agreement with any Affiliate of the Company (other than any , unless such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and Contract can be terminated by the Company upon Company, without cause, on notice of 60 not longer than 180 days and without liability, penalty or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;premium.
(kb) any agreement under which All of the Company has advanced or loaned any amount Contracts listed in Schedule 3.17 to any employee (other than advances this Agreement are in the Ordinary Course of Business);
(l) any settlementfull force and effect, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment are valid and binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge obligations of the Company, the other parties thereto, enforceable in accordance with its their terms, except as enforcement may be limited by applicable subject to the general laws of application relating to bankruptcy, insolvencyinsolvency and other similar laws affecting creditor’s rights and, reorganizationsubject, moratorium or similar Law affecting the rights as to enforceability, to general principles of creditors generally; (ii) equity, and neither the Company nor, to the best of Seller’s knowledge after due inquiry, any other party thereto is not in material default, and there are no existing conditions or events that have occurred which (with or without giving of notice or the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach material default under the terms of such Contracts or default by serve as a basis for force majeure or other claim of excusable delay or nonperformance thereunder.
(c) To the Company orbest of Seller’s knowledge after due inquiry, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result except as may have arisen in the imposition of any Lien on any ordinary course of the Company’s securities business and consistent with Seller’s prior experiences, there are no pending, proposed, requested or threatened negotiations or renegotiations of, or attempts to renegotiate, or outstanding rights to renegotiate, any of the properties material terms, amounts paid or assets of payable to the Company under current or completed Contracts listed in Schedule 3.17 of this Agreement with any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractperson.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 2.8(a) lists each of the following written contracts and other written agreements to which of the Company is a party Group (together with all Leases listed on Schedule 2.10(b), collectively, the “Material Contracts”):
(ai) any each agreement with the ten largest suppliers and the ten largest customers of a member of the Company Group involving (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(bi) any agreement (or group of related agreements) for the lease of personal property aggregate consideration payable to or from any Person providing for lease payments by a member of the Company Group in excess of $100,000 per annum500,000 or (ii) requiring performance by any party more than one year from the date hereof, which, in each case, cannot be cancelled by a member of the Company Group without material penalty with less than 180 days’ notice;
(cii) except for any each services contract, facility contract, sponsorship contract, vendor contract or other contract or agreement entered into the cancellation of which would be materially adverse to the Business;
(iii) all agreements that relate to the sale of the Company Group’s assets, other than in the Ordinary Course of Business, which contain ongoing obligations on the part of any agreement member of the Company Group; Table of Contents
(iv) all agreements that relate to the acquisition of any business, a material amount of stock or group assets of related agreements) for the purchase or any other Person (whether by merger, sale of suppliesstock, products sale of assets or other personal propertyotherwise), or for which contain ongoing obligations on the furnishing or receipt part any member of servicesthe Company Group;
(dv) any agreement, commitment, or outstanding purchase order except for agreements relating to trade receivables, all agreements relating to Indebtedness of any member of the Company Group;
(vi) all agreements (A) limiting the freedom of any member of the Company Group or any of its Affiliates after the Closing to engage in any line of business, acquire any entity or compete with any Person or in any market or geographical area, (B) containing exclusivity obligations or similar restrictions binding on and material to any member of the Company Group or any of its Affiliates after the Closing or that would be binding on Buyer or any of its Affiliates after the Closing or (C) grants a most-favored nation status to any Person, in a manner that is material to the Business;
(vii) partnership or joint venture agreements or teaming agreements and other agreements involving a sharing of profits, losses, costs or liabilities of any member of the Company Group with any other Person with a value greater than $500,000;
(viii) agreements placing restrictions on dividends, distributions or loans or that require the retention of assets, reserves, earnings or capital expenditures that involves total remaining payments by any member of the Company Group;
(ix) agreements involving any resolution or settlement of any actual or threatened Proceeding or other governmental proceeding involving any member of the Company Group with a value greater than $500,000 or other material requirements;
(x) agreements which require any capital commitment or capital expenditure (or series of capital expenditures) by the Company of more Group in an amount that individually or in the aggregate is greater than $100,000.500,000;
(exi) any agreement concerning a partnership or joint venturewith any Material Service Provider;
(fxii) any agreement containing a covenant not that is an employment agreement with an executive officer or provides for severance, retention, change of control or other similar payments;
(xiii) all agreements pursuant to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability any member of the Company Group licenses intellectual property to conduct business of any type or in any location;
from third parties except for (gA) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, unmodified or non-customized commercial off-the-shelf software) and (ii) that is material to the business software available for a license fee of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less no more than $100,000, 250,000 annually and (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances non-exclusive licenses granted in the Ordinary Course of Business);
(l) any settlement, conciliation Business in connection with the sale or similar agreement entered by any Governmental Authority whereby the license of Company is under an obligation to perform activities, refrain from activities and/or pay moneyproducts or services; and
(mxiv) any other agreement, contract, lease, license, instrument all agreements between or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by among the Company in excess Group on the one hand and Seller or any Affiliate of $100,000 per annum and is not terminable by Seller (other than the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate Group) on the other hand.
(b) A true and complete, in all material respects, complete copy of each Material ContractContract (including all amendments, exhibits and schedules thereto) has been made available to Buyer. With respect to each All Material Contract: (i) such Material Contract is legal, Table of Contents Contracts are valid, binding and in full force and effect and enforceable against by the Company, and, to the Knowledge members of the Company, the other parties thereto, Company Group party thereto in accordance with its their respective terms, except as enforcement may be limited by applicable subject to bankruptcy, insolvency, reorganization, moratorium or similar Law laws affecting the creditors’ rights generally and by general principles of creditors generally; equity (iiregardless of whether enforcement is sought in a proceeding at law or in equity). Except as set forth on Schedule 2.8(b), (i) no member of the Company is not (with or without the lapse of time or the giving of noticeGroup is, or both) in breach or default and, to the Knowledge of the CompanySeller, no other party to such Material Contract is thereto is, in breach of, or default thereunderunder, and no event has occurred any Material Contract, except for such breaches or circumstance exists defaults that would constitute not reasonably be expected to have a breach or default by Material Adverse Effect and (ii) neither Seller nor any member of the Company orGroup has received written notice of any intention to terminate, to not renew or challenge the Company’s Knowledgevalidity or enforceability of, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge. Except as set forth on Schedule 2.8(b), no event has occurred which with notice or circumstance exists that lapse of time would constitute a material breach or default, or permit termination, cancellation, acceleration, suspension modification or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company acceleration under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract, except for such terminations, modifications or accelerations that would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists (i) The Company has provided to Buyer true and correct copies of the following written contracts and other written agreements (each a “Material Contract”) to which the Company is a party (collectively, the “Material Contracts”):party:
(aA) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services (1) which involves more than the sum of $10,000 or (2) in which the Company has granted “most favored nation” pricing provisions or marketing or distribution rights relating to any services;, products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(eB) any agreement concerning the establishment or operation of a partnership partnership, joint venture or joint venture;limited liability company;
(fC) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has created, incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligationsor may create, incur, assume or guarantee) or any agreement evidencing indebtedness (including capitalized lease obligations) or under which the Company it has imposed a Lien (other than a Permitted Lienor may impose) any Encumbrance on any of its assets, tangible or intangible (other than any such agreement that will be excluding indebtedness and Encumbrances being paid off, terminated at or prior to otherwise satisfied in connection with the Closing);Closing);
(iD) any agreement with for the disposition of any Affiliate significant portion of the assets or business of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company sales of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances products in the Ordinary Course of Business);) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(lE) any settlementagreement concerning confidentiality or non-solicitation;
(F) any employment agreement, conciliation consulting agreement, severance agreement (or agreement that includes provisions for the payment of severance) or retention agreement;
(G) any agreement involving any current director, manager, officer, or member of the Company;
(H) any lease or agreement under which the Company is the lessee of, or holds or operates, any personal property owned by any other party, for which the annual rental exceeds $15,000;
(I) any agreement that prohibits the Company from freely engaging in business anywhere in the world;
(J) any distributor, sales representative, franchise or similar agreement entered by any Governmental Authority whereby to which the Company is under an obligation to perform activities, refrain from activities and/or pay money; a party or by which the Company is bound; and
(mK) any other agreement, contract, lease, license, instrument agreement (or commitment binding upon group of related agreements) either (A) involving more than $50,000 or (B) not entered into in the Company, in each case not included in clauses Ordinary Course of Business and involving more than $10,000.
(aii) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an a complete and accurate and complete, in all material respects, copy of each Material ContractContract (as amended to date). With respect to each Material Contract, and subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity: (i) such the Material Contract is legal, valid, binding and enforceable and in full force and effect against the Company, and, to the Knowledge of any Seller or the Company, the against each other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; party thereto; and (ii) the Material Contract will continue to be legal, valid, binding and enforceable and in full force and effect against the Company and against each other party thereto immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing. Neither the Company nor, to the Knowledge of any Seller or the Company, any other party, is not (with in breach or without violation of, or default under, any such Material Contract, and no event has occurred, is pending or, to the lapse Knowledge of time any Seller or the Company, is threatened, which, after the giving of notice, with lapse of time, or both) in breach or default andotherwise, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by or any such other party; (iii) the Company has performed all material obligations previously required to be performed by it party under such Material Contract; .
(iviii) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the The Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other is not party to any oral contract, agreement or other arrangement that, if reduced to written form, would be required to provide under the Material Contract has not repudiated in writing any portion terms of such Material ContractSection 3(y).
Appears in 1 contract
Sources: Share Purchase Agreement (Paranovus Entertainment Technology Ltd.)
Material Contracts. (a) Schedule 5.13 lists 3.6(a) sets forth a true, correct and complete list of each of the following written contracts and other written agreements of each Group Company as of the date hereof, to which the Company is a party extent any such contract or agreement remains in effect as of the date hereof (such contracts required to be listed or described on Schedule 3.6(a), collectively, the “Material Contracts”):
(ai) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable indenture relating to such supplier or customer, as applicableFunded Indebtedness;
(bii) contract under which any Group Company has made advances or loans to another Person in excess of $125,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the Ordinary Course of Business;
(iii) lease or agreement under which any Group Company is lessee of or holds or operates any tangible property (other than real property), owned by any other Person, except for any lease or group agreement under which the aggregate annual rental payments do not exceed $125,000;
(iv) lease or agreement under which any Group Company is lessor of related agreementsor permits any third party to hold or operate any tangible property (other than real property), owned or controlled by the Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $125,000;
(v) operating agreement, partnership agreement, joint venture agreement or similar arrangement involving the sharing of revenue, profits, losses, costs or liabilities;
(vi) contract containing non-competition or non-solicitation covenants or otherwise containing covenants that purport to materially restrict any Group Company’s business activities or prohibiting any Group Company from (A) engaging in any material line of business, (B) providing for any material exclusivity, rights of first refusal, rights of first negotiation preferred treatment or similar requirement or (C) including any most favored pricing provisions;
(vii) collective bargaining agreement;
(viii) contract for the lease employment or engagement of personal property any individual employee on a substantially full-time basis or consulting basis with an annual base compensation in excess of $250,000 (excluding at-will employees);
(ix) contract that relates to the acquisition or from disposition of, or investment in, any business, division or Person (whether by merger, sale of capital stock, sale of assets or otherwise), including investments in joint ventures and minority equity investments, in each case within the past three (3) years or pursuant to which any Group Company has any material outstanding rights or obligations;
(x) contracts requiring or providing for lease any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($100,000 per annum350,000) in the aggregate;
(cxi) except for any agreement other than purchase orders entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of servicescontracts with any supplier required to be listed on Schedule 3.22;
(dxii) contract which is a settlement, conciliation or litigation “standstill” contract (A) pursuant to which any agreement, commitment, Group Company will have material outstanding obligations after the Closing or outstanding purchase order relating (B) with respect to capital expenditures that involves total remaining payments by which material conditions precedent to the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venturesettlement have not been satisfied;
(fxiii) contracts pursuant to which any agreement containing Group Company grants to a covenant not to compete granted by the Company in favor of third party, or a third party that impairs the business as currently conductedgrants to any Group Company, or which expressly restricts the ability of the Company a license to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights Rights, in each case involving consideration in excess of one hundred thousand dollars ($100,000) per annum, other than licenses (A) contracts for the license of commercially available, off-the-off the shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (software or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term contracts for the non-exclusive license of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances Intellectual Property Rights in the Ordinary Course of Business);
(lxiv) each contract that is a securityholder agreement, shareholder agreement, registration rights agreement or any settlement, conciliation arrangement relating to or similar agreement entered by any Governmental Authority whereby affecting the Company is under an obligation to perform activities, refrain from activities and/or pay moneyownership of the equity interests of a Group Company; andor
(mxv) any other agreementagreement that is not terminable on less than 90 days’ notice and requires the payment by, contractor to, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by Group Companies after the Company date hereof of an amount in excess of $100,000 250,000 per annum annum, excluding Real Property Leases and is not terminable by the Company upon notice of sixty days excluding agreements set forth on Schedule 3.10(a) or less without substantial cost or penalty. 3.23(a).
(b) The Company has made available to Buyer an accurate Parent and complete, in all material respects, Merger Sub a true and correct copy of all written Material Contracts, together with all amendments, modifications or supplements thereto. Except as set forth on Schedule 3.6(b), each Material Contract. With respect to each Material Contract: (i) such Material Contract is in full force and effect and is legal, valid, valid and binding on the applicable Group Company party thereto and enforceable in accordance with its terms against the Company, such Group Company and, to the Knowledge knowledge of the Company, the each other parties theretoparty thereto (in each case, in accordance with its terms, except as enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar Law other laws affecting generally the enforcement of creditors’ rights and subject to general principles of creditors generallyequity); (ii) provided that for purposes of representations made as of the Company is Closing Date, this representation shall not (apply to Material Contracts, if any, which have been terminated in accordance with or without their terms after the lapse of time or the giving of notice, or both) in breach or default and, date hereof and prior to the Knowledge of the CompanyClosing. Except as set forth on Schedule 3.6(b), no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Group Company or, to the Company’s Knowledgeknowledge, by any such other party; (iii) the Company has performed all party thereto, is in breach of its material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (or has given to any other than Permitted Liens) nor has the Company given or received written party notice alleging the same; and (v) the other that such a material breach or material default has occurred. No party to the any Material Contract has not repudiated in writing exercised any portion termination rights with respect thereto, and no party has given written notice of such any material dispute with respect to any Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Fat Brands, Inc)
Material Contracts. (a) Set forth on Schedule 5.13 lists 4.12(a) is a list of the following written contracts and other written agreements Contracts to which the Company is a party party, by which it or its assets bound, or pursuant to which it receives any material benefit or incurs any obligation or liability (the Contracts required to be set forth on Schedule 4.12(a), collectively, the “Material Contracts”):
(ai) any agreement with each Contract (A) limiting the ten largest suppliers and the ten largest customers right of the Company to (by dollar amount)x) engage in or compete with any Person in any business or in any geographical area or (y) solicit or hire any Person or customers, each on a consolidated basis for the fiscal year ended December 31(B) containing exclusivity, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases requirements, “take or consolidated gross salespay,” or minimum or maximum purchase or price obligations, as applicableor similar provisions, attributable to such supplier or customer, as applicable(C) containing any “most favored nation” or similar pricing provision;
(bii) each collective bargaining Contract or other Contract with any labor union, organization or association;
(iii) each license of Intellectual Property except for (A) licenses implied by the sale of goods; or (B) shrink-wrap, click-wrap software licenses, end-user licenses and licenses to software generally commercially available;
(iv) each Contract relating to the creation, incurrence, assumption or guarantee of any indebtedness or Company Debt, or imposing a Lien on any of the assets of the Company;
(v) each Contract providing for deferred compensation, severance, retention, change in control or other similar payments or benefits, or providing any loan to any current or former officer, director, or employee of the Company;
(vi) each Contract pertaining to employment arrangements with any current or former officer, director, or employee of the Company that provides for annual compensation in excess of $150,000;
(vii) each Contract with Seller or any Affiliate of Seller;
(viii) each Contract relating to the acquisition (by merger, purchase of equity or assets or otherwise) by the Company of any operating business (or portion thereof) or the capital stock or other equity interests of any other Person (i) entered into since the Lookback Date or (ii) containing any outstanding “earn-out” or other obligations;
(ix) each Contract relating to the disposition (by merger, purchase of equity or assets or otherwise) by the Company of any operating business (or portion thereof) or any of its Equity Interests;
(x) each Contract with a Significant Vendor or Significant Customer;
(xi) each Contract with any Governmental Authority;
(xii) each Contract that is a settlement, conciliation or similar agreement that imposes any obligations upon the Company after the date of this Agreement;
(xiii) each Contract (or group of related agreementsContracts) requiring any capital commitment or capital expenditure (or series of capital expenditures) by the Company after the date hereof in an amount in excess of $500,000 individually or $1,000,000 in the aggregate; and
(xiv) each Contract (or group of related Contracts) pursuant to which the Company is the lessee of any personal property, or the lessor of any personal property, which provides for the lease of personal property to or from any Person providing for lease annual payments in excess of $100,000 per annum500,000;
(cxv) except for each partnership, joint venture or other similar Contract;
(xvi) each Contract relating to any agreement entered into swap, forward, futures, warrant, option or other derivative or hedging transaction;
(xvii) each franchise or option to purchase any asset other than real property reasonably anticipated to have value of $750,000 or more (in the aggregate);
(xviii) each Contract under which the Company remains obligated to lend or make any investment in (in the form of a loan, capital contribution or otherwise) any other Person;
(xix) each Contract that relates to the indemnification of any Person, other than in the Ordinary Course of Business, any agreement ;
(xx) each other Contract (or group of related agreementsContracts) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case which is not (x) included in the foregoing clauses or (ay) through a Lease, that provides for (lor is reasonably anticipated to provide) above, which has future required payments to or by the Company in excess of $100,000 1,000,000 per annum and which is not terminable at will by the Company upon with sixty (60) days’ notice of sixty days or less without substantial cost or payment of any prepayment penalty. .
(b) The Company has heretofore made available to Buyer an accurate true and completecorrect copies of all Material Contracts, in including all amendments and modifications thereto, and, to the extent that any Material Contract is oral, Schedule 4.12(a) contains a summary of the material respects, copy terms of each such Material Contract. With respect to each Material Contract: (i) such Each Material Contract is in full force and effect and constitutes a legal, valid, valid and binding and enforceable against obligation of the Company, and, to the Knowledge Company’s Knowledge, of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company . There is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a material breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company third party under any Material Contract, and no event has performed all occurred which, with notice or lapse of time or both, would constitute a material obligations previously required breach or default or would permit termination, modification or acceleration thereof by any party to be performed by it under such Material Contract; . The Company has not received written notice (iv) or, to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification oral notice) of the intention of any obligation third party under any Material Contract to cancel, terminate or loss modify the terms of any benefit under, result in any payment becoming due undersuch Material Contract, or result in accelerate the imposition of any Lien on any of the Company’s securities or any of the properties or assets obligations of the Company thereunder. The Company has not waived any material right under any such Material Contract. The Company has not received any prepayment under any Material Contract for any service that has not been fully performed or good that has not been supplied (other than Permitted Liens) nor has as is fully reflected in the Company given or received written notice alleging the same; Interim Financial Statements and (v) the other party to the Material Contract has not repudiated will be in writing any portion of such Material ContractFinal Closing Date Net Working Capital as finally determined in accordance with Section 2.3).
Appears in 1 contract
Sources: Securities Purchase Agreement (Hormel Foods Corp /De/)
Material Contracts. (a) Section 3.14 of the Disclosure Schedule 5.13 lists the following written contracts contracts, commitments and other written agreements to which the Company ITI is a party or which constitutes part of the property or assets of ITI as of the date of this Agreement (collectively, the “"Material Contracts”"):
(ai) any contract or agreement with the ten largest suppliers and the ten largest customers (excluding routine checking account overdraft agreements involving ▇▇▇▇▇ cash amounts) under which ITI has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness in excess of $100,000 to Persons or under which Seller or any of its Affiliates has granted a security interest or lien on any of the Company (by dollar amount)properties or assets of ITI, each on a consolidated basis for the fiscal year ended December 31whether tangible or intangible, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to secure such supplier or customer, as applicableIndebtedness;
(bii) any agreement (or group of related agreements) for the lease of personal property to which ITI is a party or from any Person providing for lease payments which constitutes property or an asset of ITI involving an annual expense in excess of $100,000 per annumthat is not cancelable within 90 calendar days;
(ciii) except any contract or agreement containing covenants limiting ITI's freedom to engage in any line of business or to compete with any Person;
(iv) all active contracts and agreements providing for Clinical Application Research Studies or research and development agreements;
(v) any contract or agreement entered into granting to any Person any right to market, distribute or resell any product of ITI, or to represent ITI's business with respect to any such product, or act as agent for ITI in connection with the Ordinary Course of Businessmarketing, any agreement (or group of related agreements) for the purchase distribution or sale of suppliesany product of ITI's business, products that, in any case, is not cancelable within 90 calendar days without ITI being obligated to pay any penalties or other personal property, or for the furnishing or receipt of servicesfees upon a cancellation;
(dvi) any agreementcontract or agreement between ITI and Seller or any of its Affiliates, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) contracts and (ii) that is material agreements relating to the business of the Company;
(h) any agreement (or group of related agreements) under intercompany debt which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or paid off prior to the Closing);
(ivii) any contract or agreement with establishing any Affiliate of the Company (joint venture, strategic alliance or other than any such agreement collaboration that will be terminated at or prior is material to the Closing)ITI's business;
(jviii) any agreement, plan lease of real property to which ITI is a party;
(ix) any contract or arrangement by which agreement for the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation sale by ITI of products or rightservices that, severance payby its terms, retention bonuses, calls for the payment or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments receipt by ITI of an amount in excess of $100,000 during 2002 or in excess of $200,000 over the Company term of less than such contract or agreement or under which ITI has actually paid or received in 2002 an amount in excess of $100,000, (B) have with an indication of which of such contracts or agreements is not cancelable within 90 calendar days without ITI being obligated to pay any penalties or other fees upon a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangementscancellation;
(kx) any agreement under which sole source supply contract for the Company has advanced purchase of a raw material or loaned any amount to any employee (other than advances a component that is otherwise not generally available and that is used in the Ordinary Course manufacture of Business)any of ITI's products, which products during the fiscal year ended December 31, 2001 had sales in excess of $100,000;
(lxi) all contracts or agreements with any settlementpresent or former officer, conciliation employee or similar agreement entered by consultant of ITI pursuant to which such officer, employee or consultant is currently entitled or expected to receive compensation or any Governmental Authority whereby the Company is under an obligation to perform activitiesother benefit;
(xii) all collective bargaining or other labor or union contracts or agreements, refrain from activities and/or pay moneyif any; and
(mxiii) any other agreement, contract, lease, license, instrument whether or commitment binding upon not made in the Company, in each case not included in clauses (a) through (l) aboveordinary course of business, which has future required payments is material to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time ITI or the giving conduct of noticeits business, or both) in breach or default and, to the Knowledge absence of the Company, no other party to such which could have a Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractAdverse Effect.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 lists the following 3.16 contains a list of all material contracts, agreements and commitments (whether written contracts and other written agreements or oral) to which the any Company is or any Subsidiary is, directly or indirectly, a party (in its own name or as a successor in interest), or by which it or any of its properties or assets is otherwise bound, in each case that is in effect on the Agreement Date (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for including the fiscal year ended December 31following: (i) all franchise, 2010 and setting forth the approximate dollar amount and the approximate percentage dealer, or other distribution agreements pursuant to which any of consolidated gross purchases them sells or consolidated gross salesotherwise distributes its products or services; (ii) all supply contracts, as applicableconstruction contracts, attributable or other such agreements or understandings pursuant to such supplier which any of them purchased in 2007, or customerexpects to purchase in 2008, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
50,000 in products or services; (ciii) except for any agreement involving the licensing of Intellectual Property or the payment of royalties; (iv) any consulting agreement providing for total remaining payments by any of them in excess of $50,000, (v) an agreement that would restrict a Company’s or any Subsidiary’s ability to compete in any business in any location, (vi) agreements concerning a partnership or joint venture; (vii) any guaranty or undertaking to be liable for the debts of others; (viii) any letters of credit; (ix) any agreement relating to ownership of or investments in any Person (including investments in joint ventures and minority equity investments); (x) any agreement relating to business acquisitions or dispositions entered into since January 1, 2007, including any not yet consummated; (xi) any resale or collocation agreements with any communications carriers; (xii) contracts for the sales of any capital asset in excess of $50,000; (xiii) contract for capital expenditures in excess of $100,000, outside the Ordinary Course of Business; (xiv) any written warranties, guaranties or similar undertakings with respect to contractual performance extended by a Company or any Subsidiary other than in the Ordinary Course of Business; (xv) contracts terminable by any other party upon a change of control of a Company or any Subsidiary or upon failure of a Company or any Subsidiary to satisfy financial or performance criteria; (xvi) any employment agreement containing provisions of severance, otherwise limiting any Company or Subsidiary to terminate such agreement (or group the employment of related agreements) for the purchase or sale of supplies, products or other personal propertyindividual under such agreement, or for providing rights or benefits to the furnishing employee in the event of a change of control of any Company or receipt any Subsidiary or (xvii) powers of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures attorney that involves total remaining payments by the Company of more than $100,000are currently in effect.
(eb) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability True and complete copies of the Company to conduct business Contracts (or a true and compete narrative description of any type or in any location;
(goral Contract) any agreement (i) relating previously have been made available to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan Buyer. Except as set forth on Schedule 5.133.16, (ii) any agreements that either (A) require future payments by none of the Company of less than $100,000Companies, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penaltySubsidiaries, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, andnor, to the Knowledge of Seller, any other party to any of the CompanyContracts (i) is in default under (nor does there exist any condition that, with notice or lapse of time or both, would cause such a default under) any of the Contracts, or (ii) has waived any right it may have under any of the Contracts. All of the Contracts constitute valid and binding obligations of a Company and/or its Subsidiaries, enforceable in accordance with their respective terms, and to the Knowledge of Seller, of the other parties thereto. For purposes of inclusion on Schedule 3.16, in accordance with its terms, except as enforcement may a Contract shall be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting deemed material if it requires the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticepayment by, or bothto, any Company or its Subsidiary of $50,000 or more during any twelve (12) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractmonth period.
Appears in 1 contract
Material Contracts. (a) Except as set forth in Section 2.15(a) of the Disclosure Schedule 5.13 lists (specifying the following written contracts appropriate paragraph), as of the date hereof the Company is not a party to, or bound by:
(i) (A) any employment, contractor or consulting agreement, contract or commitment with an employee or individual consultant, contractor, or salesperson, other than any at-will employment or services agreement providing no severance or other post-termination benefits (other than continuation coverage required by law), (B) any Contract to grant any severance, termination or change-of-control pay (in cash or otherwise) to any Employee, or (C) any consulting or sales agreement, contract, or commitment with a firm or other organization;
(ii) any agreement or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any fidelity or surety bond or completion bond;
(iv) any lease of any real or personal property;
(v) any agreement of indemnification or guaranty, other than solely as a result of indemnification provisions contained in agreements with customers, partners, suppliers, distributors, licensors, or licensees entered into in the ordinary course of business and made available to Parent;
(vi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $10,000 individually or $25,000 in the aggregate;
(vii) any Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(viii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other written agreements or instruments relating to the borrowing of money or extension of credit;
(ix) any purchase order or contract for the purchase of materials or services involving future payments in excess of $50,000 annually;
(x) any joint marketing, joint venture, partnership, strategic alliance, affiliate or joint development agreement;
(xi) any hedging, swap, derivative, ISDA or similar Contract;
(xii) any dealer, distribution, sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor or other Contract for use or distribution of the products, technology or services of the Company; or
(xiii) any other agreement, contract or commitment not otherwise disclosed in Section 2.15(a) of the Disclosure Schedule that involves $25,000 individually or $75,000 in the aggregate or more.
(b) The Company has made available to Parent true and complete copies of each Contract that has been requested by Parent or its counsel, which shall be deemed to include, but shall not be limited to, all Contracts required to be disclosed pursuant to Sections 2.2, 2.12, 2.13, 2.14 (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement) and 2.15 (each together with each material nondisclosure, confidentiality or similar agreement, a “Material Contract” and collectively, the “Material Contracts”) and each of the other documents listed on the Disclosure Schedule.
(c) Each Material Contract to which the Company is a party or any of its properties or assets (collectively, the “Material Contracts”):
(awhether tangible or intangible) any is subject is a valid and binding agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assetsand, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate Knowledge of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) aboveother party thereto, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the each other parties party thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) and is in full force and effect with respect to the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no each other party thereto, subject to such (i) laws of general application relating to bankruptcy, insolvency fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and (ii) general principles of equity. The Company is in compliance with and has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor to the Knowledge of the Company is any party obligated to the Company pursuant to any Material Contract is in breach subject to any material breach, violation or default thereunder, and no event has occurred nor does the Company have Knowledge of any presently existing facts or circumstance exists that circumstances that, with the lapse of time, giving of notice, or both would constitute such a breach material breach, violation or default by the Company or, to the Company’s Knowledge, by or any such other party; party that would have a material adverse effect on the Company, its business or its financial condition.
(iiid) the The Company has performed fulfilled all material obligations previously required to be have been performed by it under such the Company pursuant to each Material Contract; .
(ive) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets All outstanding Indebtedness for borrowed money of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractmay be prepaid without penalty.
Appears in 1 contract
Material Contracts. (a) Except for this Agreement and except for Employee Benefit Plans and any Real Property Leases, as of the date of this Agreement, other than those Contracts set forth on Schedule 5.13 lists 3.6(a) (which shall be organized by subsection to conform to each clause below) the following written contracts and Company is not a party to or bound by any:
(i) Contract relating to Indebtedness or undrawn letters of credit;
(ii) lease or other written agreements to Contract under which the Company is a party (collectivelylessee of or holds or operates any tangible property, owned by any other Person, except for any lease or agreement under which the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableaggregate annual rental payments do not exceed $100,000;
(biii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any tangible property, owned or controlled by the Company, except for any lease or agreement (or group of related agreements) for under which the lease of personal property to or from any Person providing for lease aggregate annual rental payments in excess of do not exceed $100,000 per annum100,000;
(civ) except for Contract that relates to any agreement entered into in the Ordinary Course disposition or acquisition of Business, any agreement (assets or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments properties by the Company of more than $100,000.
(e) or any agreement concerning a partnership material merger or joint venture;
(f) any agreement containing a covenant not business combination with respect to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(hv) any agreement Contracts containing most favored nations or most favored customer provisions;
(or group of related agreementsvi) Contract under which the Company has incurredCompany: (A) is bound by any non-competition, assumed or guaranteed any Indebtedness non-solicitation (other than Intercompany Obligations) customer employee non-solicitation covenants), or non-hire provisions, or any agreement evidencing other provisions restricting its right to engage in any line of business or under which the Company provide any goods or services; (B) has imposed a Lien (other than a Permitted Lien) on granted any exclusive rights or any options therefor relating to any material portion of its assetsbusiness; (C) is the exclusive provider of services, tangible goods or intangible other products to any counterparty for any period; or (other than D) has granted any such agreement that will be terminated at rights of first offer or prior refusal relating to the Closing)any material portion of its business;
(ivii) any agreement with any Affiliate Contract under which employees, officers, directors or independent contractors of the Company (other than any such agreement that will be terminated at or prior to the Closing)are bound by non-competition and non-solicitation covenants;
(jviii) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement Contract under which the Company has advanced or loaned any amount to any employee of its current or former equity holders, directors, managers, officers, employees, independent contractors or other service providers (other than advances advancement of expenses in the Ordinary Course ordinary course of Businessbusiness consistent with past practice);
(lix) Contract under which the Company has or will have any settlement, conciliation minimum purchase obligations requiring purchases in an amount that would reasonably be expected to exceed in the twelve months following the Closing Date $100,000 individually for such Contract (including any such Contract that contains a penalty or similar agreement entered by “take-or-pay” provision for failure to purchase such amount);
(x) Contract with any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay moneyEntity; and
(mxi) other Contract (other than any other agreementEmployee Benefit Plan) that involves the expenditure, contract, lease, license, instrument payment or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess receipt of more than $100,000 per annum annually and is not terminable by the Company upon without penalty on notice of sixty 60 days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete(collectively, in all material respects, copy of each the “Material Contract. With respect to each Material Contract: Contracts”).
(ib) such Each Material Contract is legal, valid, valid and binding on the Company and enforceable in accordance with its terms against the Company, Company and, to the Knowledge of the CompanySeller’s Knowledge, the each other parties thereto, in accordance with its terms, except as enforcement may be limited by party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar Law other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of creditors generally; (ii) the equity). The Company is not (and, to the Seller’s Knowledge, no other party to any such Material Contract is) in material breach of or default under any Material Contract, with or without the lapse of time or the giving of notice, notice or both) in breach or default and. Since December 31, to the Knowledge of the Company2018, no other party to such any Material Contract is in breach has materially reduced or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by otherwise materially adversely modified the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it business conducted under such Material Contract; , has communicated in writing (iv) or, to Seller’s Knowledge, communicated orally to the Company) threatening or stating its intention to terminate such Material Contract, or has provided written notice (or, to Seller’s Knowledge, no event has occurred communicated orally to the Company) claiming a breach of or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due default under, or result in the imposition of repudiating any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of material provision of, such Material Contract.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Exela Technologies, Inc.)
Material Contracts. (a) Schedule 5.13 3.08(a) lists each of the following written contracts and other written agreements Contracts to which the Company is a party and that are currently in effect (collectivelysuch Contracts, the together with all Contracts listed or otherwise disclosed in Schedule 3.09(b) and all Company IP Agreements set forth in Schedule 3.11(b), being “Material Contracts”):
(ai) any agreement with Contract for the ten largest suppliers and the ten largest customers of the Company (by dollar amount)engagement, each as an employee or independent contractor, on a consolidated basis for the fiscal year ended December 31full-time, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases part-time, consulting or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableother basis;
(bii) Contract relating to any severance, golden parachute, stay bonus, retention agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, similar Contract with or for the furnishing benefit of any current or receipt of services;
(d) any agreementformer officer, commitmentemployee, independent contractor, or outstanding purchase order relating to capital expenditures that involves total remaining other Person engaged on a full-time, part-time, consulting or other basis requiring payments by the Company as a result of more than $100,000.
(e) any agreement concerning a partnership or joint venturethe Transaction;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement Contract under which the Company has advanced or loaned any amount money to any employee other Person;
(iv) Contract relating to Indebtedness or the mortgaging, pledging or otherwise placing an Encumbrance on any Asset;
(v) Contract under which the Company is the lessor of, or permits any third Person to hold or operate, any of the Assets;
(vi) Contract prohibiting or restricting the Company from freely engaging in any business or competing anywhere in the world or Contract for the Company’s benefit (other than advances employment agreements in which the Company is the employer) prohibiting or restricting any other Person from freely engaging in any business or competing anywhere in the world;
(vii) Contract relating to any “lock-box” with any financial institution;
(viii) guaranty, bond or similar Contract made by Company for the benefit of another Person or made by another Person for the benefit of Company;
(ix) capital lease;
(x) Contract relating to any pending business acquisition or pending divestiture (including the disposition of a material portion of the Company’s Assets other than in the Ordinary Course of Business) or the acquisition of material assets, technology or other properties of another Person or the grant to any Person of any options, rights of first refusal, exclusive negotiation or preferential or similar rights to purchase any of such assets, technology or properties by the Company;
(xi) indemnification Contract entered into by the Company running to the benefit of any current or former employee, officer, director or manager of the Company;
(xii) Active Contracts relating to Company Intellectual Property for which the Company may reasonably be expected to pay or receive more than $50,000 during the term of the Contract (other than any Contract in respect of commercially available “off-the-shelf” software licensed to the Company in the Ordinary Course of Business and with aggregate annual fees of less than $50,000);
(lxiii) any settlement, conciliation or similar agreement entered by Contract with any Governmental Authority whereby to which the Company is under an obligation to perform activities, refrain from activities and/or pay money; anda party;
(mxiv) Contract to which the Company is a party that provides for any other agreementjoint venture, contract, lease, license, instrument partnership or commitment binding upon similar arrangement by the Company;
(xv) Contract relating to the settlement of any Action within the past six (6) years;
(xvi) Contract between or among the Company on the one hand and Seller or any of its Affiliates on the other hand;
(xvii) Contract with a Material Customer;
(xviii) Contract with a Material Supplier;
(xix) Contract involving a Company Employee Plan to which the Company is a party or has any obligation;
(xx) Contract, in each case having a value of over $50,000 annually, involving the Company and not included in clauses previously disclosed pursuant to this Section 3.08(a).
(ab) through (l) above, which has future required payments to or by Each Material Contract is valid and binding on the Company in excess of $100,000 per annum accordance with its terms and is not terminable by in full force and effect. None of the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, andor, to the Knowledge of the Company, the any other parties theretoparty thereto is in breach of or default under (or is alleged to be in breach of or default under) in any material respect, in accordance or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium notice or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving both, would constitute an event of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such under any Material Contract is or result in breach a termination thereof or default thereunder, and no event has occurred would cause or circumstance exists that would constitute a breach permit the acceleration or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification changes of any right or obligation or the loss of any benefit under, result in any payment becoming due under, or result in the imposition thereunder. Complete and correct copies of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such each Material Contract (other than Permitted Liensincluding all modifications, amendments and supplements thereto and waivers thereunder) nor has the Company given or received written notice alleging the same; and (v) the other party have been made available to the Material Contract has not repudiated in writing Purchaser.
(c) Schedule 3.08(c) lists each guaranty of a Seller or such Seller’s Affiliates made on behalf of any portion of such Material ContractCompany and other Person with respect to the Closing Indebtedness (collectively the “Seller Guaranties”).
Appears in 1 contract
Sources: Stock Purchase Agreement (Bridgeline Digital, Inc.)
Material Contracts. Unless otherwise specified below in this Section 3.01(n), Section 3.01(n) of the Disclosure Schedule 5.13 lists sets forth a list of each of the following written contracts and other written agreements types of Contracts to which the Company is a party as of the date of this Agreement or under which there are any outstanding performance obligations or liabilities (collectivelyother than contingent indemnity obligations for which no claims have been made) (each, the a “Material ContractsContract”):
(ai) any agreement with Contract involving the ten largest suppliers and the ten largest customers lease, use or occupancy of the Company (Real Property by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableCompany;
(bii) any agreement Contract under which (A) Intellectual Property owned by a third party is licensed to Company, other than internal use licenses of commercially available software in object code form for aggregate fees of less than $50,000 or group (B) Company grants licenses to any third party with respect to any Company Intellectual Property, excluding any non-exclusive licenses granted by Company to customers in the Ordinary Course of related agreementsBusiness pursuant to the standard form agreements of Company;
(iii) any Contract relating to or evidencing Indebtedness or pursuant to which Company guarantees or secures the Indebtedness of any other Person;
(iv) any employment Contract (A) with any management-level employee of Company, (B) with salaried exempt personnel having an aggregate annual compensation in excess of $125,000, or (C) providing severance, retention, change in control or transaction payments or benefits;
(v) any joint venture, partnership or similar Contract;
(vi) any Contract with any Governmental Entity;
(vii) any Contract with any Related Party of Company;
(viii) any Contract providing for the lease of personal property indemnification to or from any Person providing for lease payments in excess with respect to liabilities relating to any current or former business of $100,000 per annum;
(c) except for any agreement Company, other than those implied or imposed by Law and performance and indemnity obligations entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(dix) any agreement, commitment, or outstanding purchase order Contract relating to capital expenditures that involves total remaining payments settlement of any Action from November 1, 2019 until the date of this Agreement (A) involving payment by the Company of more than $100,000.
25,000 or (eB) imposing any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of obligation on the Company;
(hx) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien each Contract (other than a Permitted LienContract with a customer or supplier) on that provides for payments to or from Company or any its Subsidiaries in excess of $200,000 individually or in the aggregate within any 12-month period, or that involved payments to or from Company or any of its assetsSubsidiaries in excess of $200,000 individually or in the aggregate in the fiscal year 2022 or during the 11 months ended September 30, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing)2023;
(ixi) any agreement each Contract with any Affiliate the customers referenced in Section 3.01(t) of the Company Disclosure Schedule (other than any provided, however, that each such agreement that will be terminated at or prior Contract is not listed on Section 3.01(n)(xi) of the Disclosure Schedule but, rather, made available to the ClosingBuyer in Virtual Data Room folder 11.1);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success feesindividual Contracts with suppliers or any other customers that provides for payments to or from Company or any its Subsidiaries in excess of $250,000 and entered into between November 1, other than (i) any Employee Benefit Plan set forth on Schedule 5.132021 and September 30, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money2023; and
(mxii) any other agreementContract containing any non-competition covenant that restricts, contractor purports to restrict, lease, license, instrument or commitment binding upon the business activity of Company, in each case not included in clauses (a) through (l) above, which has future required payments or that restricts the right of Company to sell to or by purchase from any Person or to hire any Person, or that grants the Company in excess other party or any third person “most favored nation” status or any type of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penaltyspecial discount rights. The Company Seller has made available to Buyer an accurate a true, correct and complete, in all material respects, complete copy of each Material Contract. With respect to Assuming the due authorization, execution and delivery thereof by the other party or parties thereto, each Material Contract: (i) such Material Contract is in full force and effect and is legal, valid, binding and enforceable against the Company, Company and, to the Knowledge of the CompanySeller, the other party or parties thereto, in accordance with its terms, except as enforcement such may be limited by applicable bankruptcy, insolvency, reorganization, moratorium reorganization or similar Law other Laws affecting the creditors’ rights of creditors generally; (ii) the generally and by general equitable principles. Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default compliance and, to the Knowledge of the CompanySeller, no each other party to such Material Contract thereto is in breach compliance, in all material respects, with all material terms of each Material Contract. Company has not received nor sent any claim of any breach, violation or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists (a) Except as set forth in Section 4.16 of the following written contracts and other written agreements Company Disclosure Letter, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) material contract" (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) contract or instrument relating to Financial Indebtedness with a principal amount in excess of $1,000,000 or relating to any interest rate, currency or commodity derivatives or hedging transactions for which the aggregate exposure is reasonably expected to be in excess of $1,000,000;
(iii) contract to which the Company is a party (collectivelythat materially restricts the Company from engaging or competing in any line of business or in any geographic area, or which would so restrict the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers Company following a change in control of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableCompany;
(biv) contract with any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments Governmental Authority currently in effect that generated annual revenues in excess of $100,000 per annum1,000,000 in the most recently completed fiscal year;
(cv) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) contract for the sale or purchase or sale of supplies, products or other personal any real property, or for the furnishing sale or receipt purchase of servicesany tangible personal property (excluding sales in the ordinary course of business) in an amount in excess of $5,000,000 within the past five (5) years;
(dvi) any agreement, commitment, or outstanding purchase order contract relating to settlement of any administrative or judicial proceedings within the past three (3) years that results in the payment of monetary damages in excess of $1,000,000, excluding payments made through insurance proceeds;
(vii) contract relating to any single or series of related capital expenditures that involves total remaining payments by the Company or its Subsidiaries in excess of more than $100,000.
3,000,000 within the past three (e3) any agreement concerning a partnership or joint ventureyears;
(fviii) joint venture agreement to which the Company or any agreement containing of its Subsidiaries is a covenant not to compete granted party and has an equity ownership interest;
(ix) contract (A) providing for the disposition or acquisition of any assets, business, securities or otherwise outside the ordinary course of business by the Company or any of its Subsidiaries or for consideration in favor excess of a third party that impairs the business as currently conducted$1,000,000, or (B) pursuant to which expressly restricts the ability Company or any of its Subsidiaries has any ownership interest in any other person or other business enterprise, other than other Subsidiaries of the Company, that would reasonably be expected to be material to the Company to conduct business and its Subsidiaries, taken as a whole, in each case other than contracts for transactions that have closed and non-binding letters of any type or in any locationintent following which there is no related activity thereto;
(gx) any license, sublicense, development agreement, or other agreement (i) relating to the licensing by or to under which the Company or any of Business its Subsidiaries has granted or received any rights in any Intellectual Property Rights (other than non-exclusive licenses or other rights granted to suppliers and customers in connection with the sale or manufacture of commercially availableCompany products in the ordinary course of business), off-the-shelf software) and in each case (iiA) that is are material to the business of the CompanyCompany and its Subsidiaries; or (B) that require recurring payments of more than $1,000,000 per year; in each case other than licenses to commercial off-the-shelf software available for a fee of not more than $100,000;
(hxi) contract with the ten largest customers and the ten largest suppliers of the Company, as measured by the dollar amount of purchases therefrom or thereby, during the most recently completed fiscal year; or
(xii) contract in connection with any agreement (acquisition or group of related agreements) under disposition entered into since January 1, 2011 pursuant to which the Company has incurred, assumed any continuing "earn-out" or guaranteed any Indebtedness other contingent payment obligations. Each contract of the type described in this Section 4.16 is referred to herein as a "Company Material Contract."
(other than Intercompany Obligationsb) or any agreement evidencing or under which Neither the Company has imposed a Lien (other than a Permitted Lien) on nor any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate Subsidiary of the Company (other than is or is alleged to be in breach of or default under the terms of any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in where such breach or default andwould have, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, no other party to such any Company Material Contract is in breach of or default thereunder, and no event has occurred or circumstance exists that would constitute a under the terms of any Company Material Contract where such breach or default by would have, or would 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 orand, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any Knowledge of the Company’s securities , is in full force and effect, except as would not have, and would not reasonably be expected to have, individually or any in the aggregate, a Company Material Adverse Effect; provided 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 properties or assets of the Company under court before which any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractproceeding therefor may be brought.
Appears in 1 contract
Sources: Merger Agreement (Nortek Inc)
Material Contracts. Schedule 5.13 lists the following written contracts and other written agreements to which the Company is a party (collectively, the “Material Contracts”):
(a) any agreement As of the date hereof, except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the ten largest suppliers transactions contemplated hereby, and (iii) for Company Benefit Plans set forth on Section 3.16(a) of the ten Company Disclosure Schedule, Section 3.14 of the Company Disclosure Schedule sets forth a list of agreements that the Company or its Subsidiaries are party to or are bound by:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the twenty-five (25) largest customers of the Company Acquired Companies (by dollar amountthe “Top Customers”), each on taken as a consolidated basis for whole by revenue during the fiscal year ended December 31, 2010 and setting forth 2024 (as determined based on revenue recognized during the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableapplicable time period);
(biii) any agreement that is with the twenty-five (or group 25) largest vendors (excluding legal, accounting, tax and similar professional service providers) of related agreements) for the lease Acquired Companies, taken as a whole, determined on the basis of personal property to or from any Person providing for lease payments in excess of $100,000 per annumexpenditures, during the fiscal year ended December 31, 2024 (the “Top Suppliers”);
(civ) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreementsA) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company limiting in favor of a third party that impairs the business as currently conducted, or which expressly restricts any material respect the ability of the Company or any Subsidiary of the Company to conduct business of any type compete or engage in any location;
(g) any agreement (i) relating to the licensing by line of business or to the Company of Business Intellectual Property Rights compete with any Person in any geographic area, or (other than licenses of commercially available, off-the-shelf softwareB) and (ii) containing any “most favored nation” or “exclusivity” provisions that is material to the business of the CompanyAcquired Companies taken as a whole;
(hv) any agreement (relating to or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate indebtedness of the Company (other than or any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company Subsidiary of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum 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);
(vi) that is not terminable a material license granted by the Company upon notice or any Subsidiary of sixty days the Company to Company Intellectual Property, other than (A) non-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 3.14(a)(i);
(vii) that is a material license of Third Party Rights granted to the Company or any Subsidiary of the Company, including that arises out of any material Intellectual Property-related dispute (including any co-existence agreement), other than (A) Contracts for commercially available software involving payments of less without substantial cost than $250,000 annually, (B) employee, contractor, and consulting agreements entered into in the ordinary course of business and (C) material contracts set forth in Section 3.14(a)(i);
(viii) primarily relating to the acquisition, ownership, or penalty. The development of any material Company has made available Intellectual Property, other than Contracts with shareholders, directors, officers, employees, contractors and other representatives of the Company that assign rights in Intellectual Property from such individuals to Buyer one of the Acquired Companies;
(ix) that is a collective bargaining agreement, works council agreement, labor agreement, or other Contract with a Union (each, a “Labor Agreement”);
(x) that is a settlement, conciliation or similar Contract (A) with any Governmental Entity (B) pursuant to which the Company or any Subsidiary will have any material outstanding obligation or restriction after the date of this Agreement or (C) that contains payment obligations of the Company or any of its Subsidiaries in excess of $150,000;
(xi) relating to the disposition or acquisition of assets by the Company or any Subsidiary (A) in the past three (3) years, with a value or purchase price greater than $2,000,000 or (B) pursuant to which any potential earn-out, deferred or contingent payment obligations remain outstanding (excluding indemnification obligations in respect of representations and warranties) or otherwise survive as of the date hereof that would reasonably expected to result in the receipt or making by the Company or any of its Subsidiaries of future payments in excess of $500,000;
(xii) that is a joint venture entity, a legal partnership or similar arrangement (excluding commercial agreements that do not involve the formation of an accurate entity with any third Person);
(xiii) that provides for indemnification of any officer, director or employee by the Company or any of its Subsidiaries, other than Contracts entered into on substantially the same form as the Company’s standard forms previously Made Available to Parent;
(xiv) 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);
(xv) that obligates the Company or any Subsidiary to make any future capital investment or capital expenditure outside the ordinary course of business and completein excess of $500,000; and
(xvi) that represents a Related Party Transaction.
(b) Each Contract of the type described above in this Section 3.14, whether or not set forth in all material respectsSection 3.14 of the Company Disclosure Schedule, copy of each is referred to herein as a “Material Contract”. With respect to each Except for Material Contract: Contracts that have expired or terminated by their terms, as of the date hereof, all of the Material Contracts are (iA) such Material Contract is legal, valid, valid and binding and enforceable against on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, the each other parties party thereto, and (B) in accordance with its termsfull force and effect, except (i) as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or and other similar applicable Law affecting the creditors’ rights generally and by general principles of creditors generally; equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. As of the date hereof, neither the Company is not (with or without nor any Subsidiary of the lapse of time or the giving of noticeCompany has, or both) in breach or default and, to the Knowledge of the Company, no none of the other party parties thereto have, breached, violated any provision of, or committed or failed to such Material Contract is in breach or default thereunderperform 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 the foregoing. No event has occurred or circumstance exists circumstances exist that (with or without notice, lapse of time or both) would constitute such a breach or default pursuant to any Material Contract or permit the termination or modification thereof or permit the acceleration or maturity of performance thereof, by the Company or any of its Subsidiaries, or to the Knowledge of the Company, any other party thereto, except for immaterial breaches and defaults. Since the date of the Most Recent Balance Sheet, the Company has not received written notice from any Person that such Person intends to modify in any material respect, terminate, or not renew, any Material Contract. The Company has Made Available to Parent a copy of each Material Contract as in effect as of the date hereof that is true and complete, subject to redaction of privileged or competitively sensitive information.
(c) In the past two (2) years, the Company has not received any written or, to the Knowledge of the Company’s Knowledge, by oral notice from or on behalf of any Top Customer indicating that such other party; Top Customer intends to terminate or, not renew, or materially change the terms of any Material Contract with such Top Customer.
(iiid) In the past two (2) years, the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) not received any written or, to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any Knowledge of the Company’s securities , oral notice that has not been withdrawn or otherwise abandoned, from or on behalf of any Top Supplier indicating that such Top Supplier intends to terminate, or not renew, or materially change the terms of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of with such Material ContractTop Supplier.
Appears in 1 contract
Material Contracts. Schedule 5.13 (a) Section 3.7(a) of the Company Disclosure Letter lists all material Contracts to which any AUM Company is a party, by which any AUM Company is bound or to which any AUM Company or any of its assets or properties are subject that are in effect as of the date of this Agreement and constitute or involve the following written contracts (together with all amendments, waivers or other changes thereto, each of the following, a “Material Contract”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company of $100,000 or more (other than standard purchase and sale orders entered into in the Ordinary Course consistent with past practices);
(ii) all sales, advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar Contracts, in each case requiring annual payments or expenses by any party of $100,000 or more;
(iii) each Contract with any current officer, director, employee or consultant of the Company, under which the Company (A) has continuing obligations for payment of an annual compensation of at least $150,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other written agreements obligation; (B) has severance or post-termination obligations to such Person (other than COBRA obligations); or (C) has an obligation to make a payment upon consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company is a party (collectively, the “Material Contracts”):party;
(av) all Contracts relating to any agreement with acquisitions or dispositions of material assets (other than acquisitions or dispositions of inventory in the ten largest suppliers and Ordinary Course) in excess of $100,000;
(vi) all Contracts, irrespective of contract value, relating to (A) the ten largest customers manufacturing, labeling, packaging, marketing, sales, or distribution of finished drug products (whether currently FDA-approved or under clinical investigation) by or on behalf of the Company; (B) the conduct, management, or oversight of pre-clinical or clinical drug trials on behalf of the Company (whether titled a “Clinical Trial Agreement” or otherwise); (C) the supply of active pharmaceutical ingredients (“API”) or other ingredients or components used in the manufacturing of FDA-approved or investigational drug products by dollar amount), each or on a consolidated basis for behalf of the fiscal year ended December 31, 2010 and setting forth Company; or (D) consulting or other services provided to the approximate dollar amount and the approximate percentage of consolidated gross purchases Company by physicians or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableother licensed healthcare providers;
(bvii) all Contracts involving Intellectual Property (“IP Contracts”), separately identifying all such IP Contracts under which any agreement of the AUM Companies is obligated to pay royalties thereunder and all such IP Contracts under which any AUM Company is entitled to receive royalties thereunder;
(viii) all Contracts limiting the freedom of the Company to compete in any line of business or group of related agreements) for the lease of personal property to or from industry, with any Person or in any geographic area;
(ix) all Contracts providing for lease guarantees, indemnification arrangements and other hold harmless arrangements made or provided by the Company, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or similar obligations;
(x) all Contracts with or pertaining to the Company to which any Affiliate of the Company is a party, other than any Contracts for less than $50,000 or relating to such Affiliate’s status as a Company Shareholder;
(xi) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $100,000 per annumyear;
(cxii) except for any agreement entered into in the Ordinary Course of Business, any agreement (all Contracts creating or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order otherwise relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any outstanding Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assetsintercompany Indebtedness), tangible or intangible (other than except any such agreement that will be terminated at or prior to the Closing)Contract with an aggregate outstanding principal amount not exceeding $100,000;
(ixiii) any agreement with any Affiliate all Contracts relating to the voting or control of the equity interests of the Company or the election of directors of the Company (other than any such agreement that will be terminated at the organizational or prior to constitutive documents of the ClosingCompany);
(jxiv) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments all Contracts not cancellable by the Company with no more than thirty (30) days’ notice if the effect of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount such cancellation would result in monetary penalty to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable the terms of such contract;
(xv) all Contracts that may be terminated, or the provisions of which may be altered, as a result of the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement;
(xvi) all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the Company upon notice consummation of sixty days the transactions contemplated by this Agreement or less without substantial cost any Ancillary Agreement, or penalty. The Company has made available to Buyer an accurate and completethe amount or value thereof will be calculated on the basis of, in the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xvii) all material respects, copy of each collective bargaining agreements or other agreement with a labor union or labor organization.
(b) Each Material Contract. With respect to each Material Contract: Contract is (i) such Material Contract is legala valid and binding agreement, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) in full force and effect and (iii) enforceable by and against the Company or its Subsidiaries and each counterparty that is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by thereto. Neither the Company ornor, to the Company’s Knowledge, by any such other party; party to a Material Contract is in material breach or default (iiiwhether with or without the passage of time or the giving of notice or both) under the Company has performed all material obligations previously required to be performed by it under terms of any such Material Contract; . The Company has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(ivc) to The Company is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, Transactions shall not cause or result in the imposition an event of any Lien on any of the Company’s securities or any of the properties or assets of the Company default under any such Material Contract (other than Permitted Liens) nor has the Company given instruments or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing Contracts establishing or evidencing any portion of such Material ContractIndebtedness.
Appears in 1 contract
Sources: Business Combination Agreement (Mountain Crest Acquisition Corp. V)
Material Contracts. Schedule 5.13 lists (a) Schedules 3.18(a)(i)-(xiv) of the following Company Disclosure Schedules list each written contracts and other written agreements or oral Contract (x) since January 1, 2011 to which the Company or any of its Subsidiaries is a party or (collectively, y) by which the Company or any of its Subsidiaries or their respective properties or assets is currently bound with ongoing obligations (other than obligations solely as a result of ongoing confidentiality obligations) and identifies which subparagraph is applicable to such Contract (such contracts and agreements as described in this Section 3.18(a) being “Material Contracts”):
(ai) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement Contract (or group of related agreementsContracts), other than employment Contracts, which is not terminable on less than ninety (90) for days’ notice and that involves future obligations of the lease of personal property to Company, its Subsidiaries or from any Person providing for lease payments its employees in a dollar amount in excess of $100,000 per annum50,000;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either employment Contract (A) require future payments by the Company providing annual compensation in excess of less than $100,000, or (B) have a remaining term of less than one year and can be terminated by the Company upon that it is not terminable at will on notice of 60 thirty (30) days or less without material cost or penalty, or payment of any severance;
(iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course Contract that involves future obligations of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum 50,000 with sales agents, sales representatives, sales brokers or distributors;
(iv) any partnership, joint venture agreement, development, joint development or similar arrangement which is material to the Company or its Subsidiaries taken as a whole;
(v) any Contract for the borrowing or lending of money and any guaranty agreement or other evidence of indebtedness, including Capitalized Lease Obligations;
(vi) any Contract granting any Person an Encumbrance on any of the material assets of the Company or any of its Subsidiaries;
(vii) any Contract involving a dollar amount in excess of $50,000 providing for the license of any Intellectual Property to or from the Company or any of its Subsidiaries;
(viii) any Contract involving a dollar amount in excess of $50,000 containing any provisions requiring the Company to indemnify any other party thereto;
(ix) any Contract pursuant to which the Company or any of its Subsidiaries or any current or future Affiliate of any of them is or would be restricted from conducting the business of the Company or any of its Subsidiaries or any current or future Affiliate of any of them in any material respect at any time, in any manner or at any place in the world, or the expansion thereof to other geographical areas, customers, suppliers or lines of business, or that grants the other party or any third person “most favored nation” or similar status, except for the following insofar as they do not terminable impose the foregoing restrictions on the Company’s or any of its Subsidiaries’ right to conduct or expand their business (and only restrict such right with respect to the other party or parties thereto) (A) the Company’s employment agreements in the form previously furnished to Acquiror, (B) the Company’s standard independent contractor agreements in the form previously furnished to Acquiror and (C) the Company’s standard separation statement for departing employees substantially in the form previously furnished to Acquiror;
(x) any Contract of any character (contingent or otherwise) pursuant to which any employee or consultant is or may be entitled to receive any payment based on the revenues, earnings or financial performance or assets of the Company or any of its Subsidiaries or calculated in accordance therewith;
(xi) any agency Contract whereby the Company purports to grant a right to market or sell its products or any agency Contract affecting the Company’s or any of its Subsidiaries’ exclusive right to develop, market or sell its products;
(xii) any Contract pertaining to any customer of the Company or any of its Subsidiaries which represents more than 5% of the Company’s revenues in any of the last three (3) fiscal years or any Contract with an independent warehouse used by the Company upon notice or any of sixty days its Subsidiaries which is material to the Company or less without substantial cost its Subsidiaries; 52
(xiii) Contracts that contain unlimited indemnification obligations by the Company or penalty. any of its Subsidiaries or that does not contain a limitation on the Company's liability;
(xiv) Contracts with any Governmental Authority;
(xv) Any Contract that relates to the settlement of any Action or any legal proceeding;
(xvi) any Contract with material suppliers to the Company or any of its Subsidiaries; or
(xvii) any other Contract that would be required to be filed with the SEC as an exhibit to a registration statement on Form S-1 if the Company or such Subsidiary were registering securities under the Securities Act.
(b) The Company has made available to Buyer an accurate Acquiror true and complete, in complete copies of all material respects, copy of each Material ContractContracts and all amendments thereto. With respect to each Each Material Contract: Contract (i) such Material Contract is legalvalid and binding on the Company or the applicable Subsidiary, valid, binding and enforceable against as the Companycase may be, and, to the Knowledge of the Company, the other parties counterparties thereto, and is in full force and effect, enforceable against the Company or its Subsidiaries, as the case may be, and, to the Knowledge of the Company, against all third parties, in each case in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law); and (ii) shall continue in full force and effect upon consummation of the transactions contemplated by this Agreement, enforceable against the Company or a Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, against all third parties, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law laws affecting the creditors’ rights generally and by general principles of creditors generally; equity (ii) regardless of whether considered in a proceeding in equity or at law). None of the Company or any of its Subsidiaries is not in breach of, or default (with or without the giving of notice, with lapse of time or the giving of notice, or both) in breach or default andunder, to any Material Contract. To the Knowledge of the Company, no other party to such any Material Contract is in breach or default thereunder, and no event has occurred nor, to the Knowledge of the Company, does any condition exist that with the lapse of time or circumstance exists that both would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; party thereunder, except for such defaults as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. No other party to any Material Contract has (iiii) notified the Company has performed all material obligations previously required that such other party intends to be performed by it under cancel or otherwise terminate such Material Contract; Contract or (ivii) since December 31, 2013, taken any action or threatened to take any action, with respect to seeking a repayment of amounts paid to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities Company or any of the properties or assets of the Company under any its Subsidiaries pursuant to such Material Contract (or a reduction in fees or other than Permitted Liens) nor has payments that will become due to the Company given or received written notice alleging the same; and (v) the other party any of its Subsidiaries pursuant to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 lists 3.11(a) contains a complete list of the following leases, contracts, commitments and agreements, oral or written contracts and other written agreements (“Contracts”) to which the Company or any Company Subsidiary is a party (collectively, the “Material Contracts”):or by which any of its assets or properties is bound:
(ai) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount)all contracts, each agreements plans or arrangements required to be listed on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableSchedule 3.16;
(bii) each management agreement, operating agreements, services agreement and other agreements pertaining to the operation and maintenance of any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease Facility with annual payments in excess of $100,000 per annum50,000 and that is not terminable by the Company or any Company Subsidiary within a 90-day period without substantial cost or penalty;
(ciii) except for all collective bargaining or other labor or union contracts or agreements;
(iv) all instruments relating to Indebtedness, including any note, bond, deed of trust, mortgage, indenture or agreement entered into in the Ordinary Course of Businessto borrow money, any agreement relating to the extension of credit or the granting of an Encumbrance (other than a Permitted Lien within the meaning of clause (f), clause (g), clause (h) or group clause (i) of related agreements) for the purchase or sale of supplies, products or other personal propertydefinition thereof), or for any agreement of guarantee in favor of any Person other than the furnishing or receipt of servicesCompany;
(dv) any each agreement, commitment, commitment or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company or any Company Subsidiary of more than $100,000.
(e) any agreement concerning a partnership 25,000 individually or joint venture$100,000 in the aggregate;
(fvi) all agreements relating to the future disposition or acquisition of any interest in any business enterprise (whether through the purchase or sale of assets or stock or by merger, consolidation or other business combination) for a purchase price of more than $50,000;
(vii) each contract, agreement containing a covenant not or commitment (including any lease for Leased Real Property) which (A) provides for annual aggregate payments to compete granted by or from the Company or any Company Subsidiary in favor excess of $25,000 or (B) does not expire or is not terminable without substantial cost or penalty at the option of the Company or the Company Subsidiary within a third party that impairs 90-day period, excluding purchase orders made in the ordinary course of business as currently conducted, consistent with past practice and contracts;
(viii) all contracts or agreements which expressly restricts restrict the ability of the Company or Company Subsidiaries to conduct business of any type or in any location;
(gix) any agreement (i) relating to the licensing by or to the Company all material powers of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Companyattorney;
(hx) any agreement (all licenses or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) agreements required to be listed on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the ClosingSchedule 3.12(c);
(ixi) any agreement all bonus, profit-sharing, compensation, stock option, pension, retirement, deferred compensation, accrued vacation pay, group insurance, welfare agreements or other plans, agreements, trusts or arrangements for the benefit of employees;
(xii) all partnership or joint venture agreements;
(xiii) all agreements, arrangements or understandings with any Affiliate of the Company (other than or any such agreement that will be terminated at or prior to the Closing);Company Subsidiary; and
(jxiv) all material agreements, contracts or commitments for any agreementcharitable or political contribution.
(b) True, plan or arrangement by which correct and complete copies of the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan agreements set forth on Schedule 5.13, (ii3.11(a) any agreements that either (Ahave been made available for inspection by Parent prior to the date of this Agreement. All Contracts set forth on Schedule 3.11(a) require future payments by are in full force and effect. Neither the Company of less than $100,000nor any Company Subsidiary, (B) have as applicable, is in default in any material respect, has done any act or failed to do any required act which constitutes a remaining term of less than one year and can be terminated by the Company upon default in any material respect, has received written notice of 60 days or less without material cost or penaltysuch a default, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon received written notice of sixty days an event or less without substantial cost occurrence of which with the giving of notice or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time could constitute a default in any material respect under any covenant or the giving of noticecondition under any Contract set forth on or required to be set forth on Schedule 3.11(a), or both) in breach or default and, to the Knowledge of the Company, no other party to any such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractmaterial respect thereunder.
Appears in 1 contract
Material Contracts. (a) Section 3.16(a) of the Company Disclosure Schedule 5.13 lists sets forth a true and complete list, as of the date hereof, of each of the following written contracts Contracts (other than any Company Employee Benefit Plans and other written agreements excluding purchase orders, statements of work and similar commercial documents issued in the ordinary course under and not amending the applicable Contract) 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):
(i) Contracts with any of the top ten (10) largest suppliers by the aggregate monetary amount of purchases made by the Company and its Subsidiaries, taken as a whole, during the nine (9) month period ended September 30, 2021 (collectively, the “Material ContractsTop Vendors”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(bii) Contracts with any agreement of the top ten (or group of related agreements10) for largest customers by the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annumaggregate monetary amount received by the Company and its Subsidiaries, taken as a whole, during the nine (9) month period ended September 30, 2021 (collectively, the “Top Customers”);
(ciii) except for any agreement entered into in Contracts concerning the Ordinary Course establishment, operation, management or control of Businessa partnership, any agreement (joint venture or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of serviceslimited liability company;
(div) Contracts pursuant to which the Company or any agreementof its Subsidiaries licenses (A) from a third party Company Material Intellectual Property, commitmentother than licenses for shrink-wrap, click-wrap or off-the shelf software or other generally commercially available software, or outstanding (B) to a third party Company Owned Intellectual Property, other than non-exclusive licenses (x) granted in the ordinary course of business or (y) that are implied by or incidental to the sale or purchase order relating to capital expenditures that involves total remaining payments by of products or services in the Company ordinary course of more than $100,000.
(e) any agreement concerning a partnership or joint venturebusiness;
(fv) any agreement Contracts containing (A) a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts materially restricting the ability of the Company or any of its Subsidiaries (or, upon Closing, Guarantor or any of its Subsidiaries) to conduct engage in any line of business of any type or in any locationgeographic area or to compete with any Person, to market any product or to solicit customers; (B) a provision granting the other party “most favored nation” status or similar preferential terms; or (C) a standstill or similar agreement pursuant to which the Company or its Subsidiaries has agreed not to acquire any assets or securities of another Person;
(gvi) any agreement (i) relating indentures, credit agreements, loan agreements and similar instruments pursuant to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company or any of its Subsidiaries has incurredor 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 $500,000, assumed or guaranteed any Indebtedness (other than Intercompany Obligationsany indentures, credit agreements, loan agreements or similar instruments between or among any of the Company and any of its Subsidiaries; and
(vii) or any agreement evidencing or Contracts under which the Company there has been imposed a material Lien (other than a Permitted Lien) on any of its the assets, tangible or intangible intangible, of the Company or any of its Subsidiaries.
(other than any such agreement that will b) A true, correct and complete copy of all Contracts set forth or required to be terminated at set forth in Section 3.16(a) of the Company Disclosure Schedule or filed or required to be filed as exhibits to the Company SEC Documents (including under Item 404(a) of Regulation S-K) (collectively, the “Company Material Contracts”), including all attachments, schedules and exhibits thereto, have been made available to Parent prior to the Closing);
(i) any agreement with any Affiliate date of this Agreement. Each of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company Material Contracts is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and in full force and effect and is enforceable against by the Company, and, to Company or the Knowledge of the Company, the other parties thereto, applicable Subsidiary in accordance with its 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 limited brought. The Company, or the applicable Subsidiary, has performed all obligations required to be performed by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) it under the Company Material Contracts, and it is not (with or without the notice or lapse of time or the giving of noticetime, or both) in breach or default thereunder and, to the Knowledge of the Company, no other party to such any Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder, and no event has occurred in each case, except for such breaches or circumstance exists that defaults as have not been or would constitute a breach not reasonably be expected to be, individually or default by in the aggregate, material to the Company orand its Subsidiaries, taken as a whole. Since January 1, 2020, neither the Company nor any of its Subsidiaries has received written notice of any actual, alleged, possible or potential violation of, or failure to comply with, any term or requirement of any Company Material Contract, in each case, except for such violation or failure to comply as have not been or would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.
(c) Since December 31, 2020, none of either (i) the Top Customers or (ii) the Top Vendors has, to the Company’s Knowledge, by any provided written notice to the effect that such other party; (iii) Top Customer or Top Vendor intends to cease doing business with the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) or its Subsidiaries or materially decrease the rate of buying or supplying, as applicable, products or services from or to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractits Subsidiaries.
Appears in 1 contract
Material Contracts. Schedule 5.13 4.21 lists the following all written contracts and other written agreements to which the Company is or oral ------------------ ------------- contracts, agreements, leases, instruments or legally binding contractual commitments ("Contracts") that are of a party type described below (collectively, the “"Company Material Contracts”"):
(a) any agreement Contract with the ten largest suppliers and the ten largest customers a customer of the Company (by dollar amount), each on a consolidated basis or its subsidiaries or with any entity that purchases goods or services from the Company or its subsidiaries for consideration paid to the Company or its subsidiaries of $100,000 or more in any fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableyear;
(b) any agreement Contract for capital expenditures or the acquisition or construction of fixed assets in excess of $100,000;
(or group of related agreementsc) any Contract for the purchase or lease of personal property to goods or from any Person providing for lease services (including without limitation, equipment, materials, software, hardware, supplies, merchandise, parts or other property, assets or services), requiring aggregate future payments in excess of $100,000 per annum;
(c) except for any agreement entered into 100,000, other than standard inventory purchase orders executed in the Ordinary Course ordinary course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of servicesbusiness;
(d) any agreement, commitment, or outstanding purchase order Contract relating to capital expenditures that involves total remaining payments by the Company borrowing of more than $100,000.money or guaranty of indebtedness;
(e) any agreement concerning a partnership collective bargaining or joint ventureother arrangement with any labor union;
(f) any agreement containing Contract granting a covenant not first refusal, first offer or similar preferential right to compete granted by the Company in favor of a third party that impairs the business as currently conducted, purchase or which expressly restricts the ability acquire any of the Company to conduct business of any type Company's capital stock or in any locationassets;
(g) any agreement (i) relating Contract limiting, restricting or prohibiting the Company from conducting business anywhere in the United States or elsewhere in the world or any Contract limiting the freedom of the Company to the licensing by engage in any line of business or to the Company of Business Intellectual Property Rights (compete with any other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the CompanyPerson;
(h) any agreement (joint venture or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing)partnership Contract;
(i) any agreement with any Affiliate Contracts requiring future payments of the Company (other than any such agreement that will be terminated at $100,000 or prior to the Closing);more; and
(j) any agreementwritten employment Contract, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase severance agreement or other equity-based compensation similar binding agreement or right, severance pay, retention bonuses, or success fees, other than (i) policy with any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penaltyemployee. The Company has made available delivered to Buyer an accurate Parent a true and complete, in all material respects, complete copy of each written Company Material Contract (and a written description of each oral Company Material Contract), including all amendments or other modifications thereto. With respect to Except as set forth in Schedule 4.21, each Material Contract: (i) such Company Material Contract is legal, valid, a valid ------------- and legally binding and enforceable against the Company, and, to the Knowledge obligation of the Company, enforceable against the other parties thereto, Company in accordance with its terms, except as enforcement may be limited by applicable subject only to bankruptcy, insolvency, reorganization, moratorium receivership or similar Law other laws affecting creditors' rights generally and general principles of equity (whether applied in an action at law or in equity). Except as set forth in Schedule 4.21, the rights of creditors generally; (ii) Company is in compliance with all obligations required to be performed by it under the Company Material Contracts, and the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge knowledge of the Company, no other party to such a Company Material Contract is is, in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result thereunder in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractmaterial respect.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 lists 2.10(a)(i)-(x) of the following written contracts and other written agreements Disclosure Schedules sets forth, as of the date of this Agreement, all Contracts to which the Company is a party (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of or the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage or any of consolidated gross purchases its respective assets or consolidated gross sales, as applicable, attributable to such supplier properties are otherwise bound or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material otherwise relate to the business of the Company;
, of the type described below (hexcept for any Contract that is an Excluded Asset or Excluded Liability) any agreement (or group of related agreements) under which the Company has incurredeach, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);“Material Contract”):
(i) Any contract, agreement or purchase order providing for the sale of products, the provision of services or warranty liability in excess of $75,000, in any agreement with any Affiliate of such case, by the Company (to any other than any such agreement that will be terminated at or prior to the Closing)Person;
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days Any single contract or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under purchase order providing for an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or expenditure by the Company in excess of $100,000 per annum and is not terminable 75,000 or any contracts or purchase orders with the same or affiliated vendor(s) providing for an expenditure by the Company upon in excess of $75,000;
(iii) Any contract pursuant to which the Company is the lessee or sublessee of, or holds or operates, any personal property owned or leased by any other Person or entity (other than leases of personal property leased in the Ordinary Course of Business with annual lease payments no greater than $75,000);
(iv) Any Contract involving Indebtedness of the Company;
(v) Any Contract containing outstanding obligations relating to the settlement of any Action;
(vi) All partnership, limited liability company, joint venture or similar Contracts relating to the Company;
(vii) Any sales agency, sales representation, consulting, distributorship or franchise agreement that is (i) projected to provide for the Company to make or receive payments in excess of $75,000 in a calendar year or (ii) are not terminable on ninety (90) days’ notice of sixty days or less without substantial cost penalty;
(viii) Any Contract (A) prohibiting competition by the Company, (B) binding any party to any exclusive business arrangement, or penalty. The (C) prohibiting the Company or any of its employees from freely engaging in any business anywhere in the world, in each case, excluding Contracts governing exclusive license and distribution relationships which are set forth in Schedule 2.10(a)(ix) of the Disclosure Schedules entered into in the Ordinary of Business which generally contain standard exclusivity provisions along with other restrictive covenants;
(ix) Any license, consent, permission, covenant not to s▇▇ or other agreement by which the Company licenses from a third party Intellectual Property that is material to the conduct of the business of the Company (and, for the avoidance of doubt, expressly excluding any license of commercial Software licensed on non-discriminatory terms), or by which the Company permits a third party to use any Company Intellectual Property;
(x) Any Contract pursuant to which the Company has made available entered into or has agreed to Buyer an accurate and complete, enter into any hedging or similar transactions; and
(xi) Any commitment to do any of the foregoing described in all material respects, copy of each Material Contract. With respect to each Material Contract: clauses (i) such Material Contract is legalthrough (x).
(b) For the purpose of this Agreement, valid, binding a “Contract” and enforceable against the Company, and, to the Knowledge of the Companycollectively, the other parties thereto“Contracts” shall mean, in accordance with its termsrespect to a Person, except as enforcement may be limited by applicable bankruptcyeach written or oral contract, insolvencyagreement, reorganizationcommitment, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticelicense, lease, indenture, or both) in breach evidence of indebtedness to which such Person is a party or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractotherwise obligated.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 lists 2.14 contains a complete and accurate list of all Contracts of the following written contracts and other written agreements categories to which any of the Company Calnev Companies is a party or by which any of them is bound as of the date of this Agreement (collectively, the “"Calnev Material Contracts”"):
(ai) any agreement (1) continuing contracts for the purchase of materials, supplies, or equipment (other than purchase contracts and orders for inventory in the ordinary course of business consistent with the ten largest suppliers and the ten largest customers of the Company (by dollar amountpast practice), each on a consolidated basis for the fiscal year ended December 31(2) management, 2010 and setting forth the approximate dollar amount and the approximate percentage service, consulting, or other similar types of consolidated gross purchases contracts or consolidated gross sales(3) advertising agreements or arrangements, as applicable, attributable in any such case that have an aggregate committed future liability to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures 1,000,000 and that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the applicable Calnev Company upon by notice of sixty not more than 60 days for a cost of less than $1,000,000;
(ii) material Calnev Intellectual Property licenses (including any license or less other agreement under which the applicable Calnev Company is licensee or licensor of any such Calnev Intellectual Property);
(iii) agreements under which any of the Calnev Companies has directly or indirectly guaranteed indebtedness of any Person in the principal amount individually in excess of $1,000,000;
(iv) agreements under which any of the Calnev Companies is obligated to advance, loan, extend credit, or make a capital contribution to, or other investment in, any Person, in any such case that, individually, is in excess of $1,000,000;
(v) all Contracts, leases or easements involving annual rental payments or receipts in excess of $1,000,000;
(vi) all promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the lending of money, whether as borrower or lender, in excess of $1,000,000 and all related security agreements or similar agreements associated therewith;
(vii) Contracts which limit the freedom of any of the Calnev Companies to compete with any Person or operate at any location, including, without substantial cost limitation, any preferential rights granted to third parties to purchase or penalty. The lease such location;
(viii) any Contract for a pending or completed acquisition or disposition (by merger or otherwise) of all or substantially all of the assets (other than inventory) or capital stock of any Person (including, without limitation, any Calnev Company) under which any of the Calnev Companies currently has (or in the case of a pending acquisition or disposition may have) any liability;
(ix) Contracts between any Calnev Company, on one hand, and Seller or any Affiliate of Seller (or any current or former officer, director or employee of Seller or any Affiliate of Seller) on the other hand;
(x) all Contracts pertaining to the operation or maintenance of any and all facilities of any of the Calnev Companies under which any Calnev Company has a committed aggregate liability of at least $1,000,000; and
(xi) to the extent not otherwise listed on Schedule 2.14, any Contract under which any of the Calnev Companies is obligated to indemnify or otherwise make whole any Person for any obligation or liability in liquidated amount in excess of $1,000,000.
(b) True copies of the Calnev Material Contracts, and accurate written summaries of the oral Calnev Material Contracts, identified on Schedule 2.14 have been made available to Buyer an accurate and completePurchaser.
(c) Except as set forth on Schedule 2.14, in all material respectsto Seller's knowledge, copy of each Material Contract. With respect no party to each Material Contract: (i) such a Calnev Material Contract identified in Schedule 2.14 is legalin default under, validor in breach or violation of (and no event has occurred which, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium notice or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticeboth, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result a breach or violation or lapse of) any term, condition or provision of such Calnev Material Contract except for defaults, breaches, violations or events which, individually or in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such aggregate, would not have a Calnev Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractAdverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gatx Corp)
Material Contracts. (a) Set forth on Schedule 5.13 lists 4.12(a) is a list, as of the Signing Date, of the following written contracts and other written agreements Contracts to which the Company is a party (collectivelyexcept for purchase orders for aggregate purchases or sales of less than $500,000 or statements of work entered into in the Ordinary Course of Business) as of the Agreement Date and under which the Company has any continuing rights, obligations or liabilities as of the Agreement Date (the “Material Contracts”):
(ai) each Contract that requires aggregate payments by or to the Company in excess of $500,000 after the date hereof;
(ii) each Contract, other than a teaming agreement, relating to any agreement joint venture or sharing of profits;
(iii) each Contract that materially limits the right of the Company to engage in or compete with any Person in any business or otherwise operate freely in any geographical area;
(iv) each IP Agreement;
(v) each Contract that entitles a customer to a certain quantity of product (that cannot be terminated for convenience without payment of penalty) or contains minimum purchase requirements, “take-or-pay” provisions, exclusivity, or “most favored nation” provisions;
(vi) each Contract relating to the ten largest suppliers and acquisition since January 1, 2020 (by merger, purchase of stock or assets or otherwise) by the ten largest customers Company of any operating business or material assets or equity interests of any other Person, which contains any material ongoing obligations or liabilities;
(vii) each Contract relating to the incurrence, assumption or guarantee of any borrowed money or imposing a Lien (other than Permitted Liens) on any of the assets or properties of the Company (by dollar amount)excluding, each on a consolidated basis for the fiscal year ended December 31avoidance of doubt, 2010 and setting forth the approximate dollar amount and the approximate percentage in respect of consolidated gross purchases any customs, licensing, bid, surety or consolidated gross salesperformance bonds, as applicable, attributable to such supplier or customer, as applicableany similar instruments);
(bviii) any agreement (or group of related agreements) each Contract for the lease employment or engagement of personal property to any officer, director, employee, contractor or from any Person providing for lease payments individual service provider of the Company with an annual base salary or compensation in excess of $100,000 per annum;
150,000, other than (cA) except offer letters or Contracts that provide for at-will employment or that are terminable without penalty or any agreement further payment upon less than sixty (60) days’ notice, or (B) confidentiality or similar agreements entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(dix) each Contract, except for any agreementEmployee Plan, commitmentproviding for severance or other termination or change of control payments or benefits, to any officer, director or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership other employee or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business individual service provider of the Company;
(hx) each Contract containing a right of first refusal or other right to acquire any agreement (or group material assets of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing)Company;
(ixi) any agreement with any Affiliate of each Company Government Contract that requires aggregate annual payments by or to the Company (other than any such agreement that will be terminated at or prior to the Closing)in excess of $250,000;
(jxii) each Contract with any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangementsSignificant Supplier;
(kxiii) each Contract with any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business)Significant Customer;
(lxiv) any settlement, conciliation or similar agreement entered by with any Governmental Authority whereby or other Person,
(xv) any settlement, conciliation or similar agreement with any other Person that will have any material outstanding obligations after the Company is under an obligation to perform activities, refrain from activities and/or pay moneySigning Date; and
(mxvi) each collective bargaining agreement or other Contract with any other agreementlabor organization, contractunion, lease, license, instrument works council or commitment binding upon the Company, in similar organization.
(b) True and complete copies of each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has Material Contract have been made available to Buyer an accurate the Buyer. Each Material Contract is in full force and complete, effect in all material respects, copy respects as of each Material Contract. With respect to each Material Contract: (i) such Material Contract is the date hereof and constitutes a legal, valid, valid and binding and enforceable against obligation of the Company, and, to the Knowledge Company’s Knowledge, of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium subject to the General Enforceability Exceptions. There is no material default or similar Law affecting the rights of creditors generally; breach (ii) the Company is not (or event that with or without the notice or lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that both would constitute a breach default or default breach) by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company third party under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists (a) Section 3.11(a) of the Disclosure Schedules sets forth a correct and complete list, organized by the categories set forth below, of each of the following written contracts and other written agreements Contracts (or a description of the material terms thereof, in the case of oral Contracts) to which the Company Corporation is a party (collectivelyor by which it or any of its properties, rights or assets are bound and which, except as otherwise provided below, are in effect on the “Material Contracts”):date hereof:
(ai) any agreement with the ten largest suppliers and the ten largest customers of the Company Contract that is or is reasonably likely to require expenditures (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases including capital expenditures) or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property payments to or from any Person providing for lease payments the Corporation in excess of $100,000 per annum50,000, individually or in the aggregate, in any calendar year, other than those that can be terminated without premium or penalty by the Corporation upon not more than sixty (60) days’ notice;
(cii) except for all Contracts involving any agreement entered into in the Ordinary Course material resolution or settlement of Businessany actual or threatened, any agreement (or group of related agreements) for the purchase or sale of supplieslitigation, products arbitration, claim or other personal property, or for the furnishing or receipt of servicesdispute;
(diii) all Contracts which contain restrictions with respect to the payment of dividends or any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by other distribution in respect of the Company Equity Interests of more than $100,000.
(e) any agreement concerning a partnership or joint venturethe Corporation;
(fiv) all Contracts pursuant to which the Corporation has an obligation to make an investment in or loan to any Person, in each case, other than in the ordinary course of the origination or loan servicing businesses of the Corporation consistent with past practice;
(v) any agreement containing Contract under which the Corporation is obligated to sell or lease as lessor real or personal property having a value in excess of $50,000 in any single given annual period;
(vi) any Contract that contains a covenant not to compete granted applicable to the Corporation or any of its Affiliates by virtue of such affiliation or that binds the Company in favor of a third party that impairs the Corporation to any exclusive business as currently conducted, arrangements or which expressly restricts the ability of the Company to conduct business of any type or in any locationlicenses;
(gvii) any agreement Contract granting a customer of the Corporation “most favored nation” or similar terms (iwhether in respect of pricing or otherwise);
(viii) relating to any management, distributor, consultant, representative, financial advisory, broker or similar type of Contract and any Contract with any investment or commercial bank, that is not terminable by the licensing Corporation at will and without liability;
(ix) any joint venture, partnership, strategic alliance or teaming Contract or other similar co-ownership or joint management agreements involving a sharing of profits, losses, costs or liabilities by or to the Company of Business Intellectual Property Rights Corporation with any Person (other than licenses the Corporation);
(x) any Contract under which the Corporation has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) (x) indebtedness for borrowed money, including, without limitation Warehouse Facilities and/or any financing arrangements with respect to the Servicing Rights and Servicing Advances of the Corporation (“Existing Financing Facilities”), or (y) other Indebtedness which, individually or in the aggregate, exceeds $50,000, (B) granted a Lien, other than Permitted Liens, on its assets, whether tangible or intangible, to secure Indebtedness or (C) extended credit to any Person;
(xi) any Affiliate Contract and any Contract between Seller or its Related Persons, on the one hand, and any employee, on the other hand;
(xii) any collective bargaining, labor or similar Contract and any Contract between the Corporation and any third party provider of employee management services, including employee benefits, payroll and workers’ compensation, recruiting, risk/safety management, and training and development.
(xiii) any Contract related to Intellectual Property used in the operation of the Corporation’s business, other than unmodified, commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (shelf, shrink-wrap, click-wrap or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement non-exclusive software licenses with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company an aggregate value of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(kxiv) any agreement under which the Company has advanced Contract with any Agency or loaned Governmental Entity (whether as prime contractor, subcontractor or otherwise), including any amount to any employee (other than advances in the Ordinary Course of Business)performance bonds or similar arrangements related thereto;
(lxv) any settlementstock purchase, conciliation asset purchase, merger, consolidation or similar other acquisition or divestiture agreement entered by any Governmental Authority whereby relating to the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contractacquisition, lease, license, instrument disposition or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or consolidation by the Company Corporation of assets (other than in the ordinary course of business consistent with past practice), properties, rights or any capital stock or other Equity Interests of any Person (x) providing for any indemnification, guaranty or surety obligation of the Corporation or (y) with a fair market value in excess of $100,000 per annum 50,000;
(xvi) any Contract relating to the establishment, management or control of any joint venture or strategic alliance;
(xvii) any Servicing Agreement;
(xviii) any Subservicing Agreement;
(xix) any Warehouse Facility not disclosed under subsection (x) above to which the Corporation was a party at any time since January 1, 2010;
(xx) any Interest Rate Protection Agreement or Other Hedging Agreement to which the Corporation is currently a party, together with a description of the dollar amount, counterparty, collateral, and maturity of any such agreement;
(xxi) any Contract with an Investor to which the Corporation is not terminable currently a party or, since January 1, 2010 was a party, providing for the sale by the Company upon notice Corporation to such Investor of sixty days one or less without substantial cost or penaltymore Mortgage Loans originated by the Corporation;
(xxii) any Contract the termination of which would reasonably be expected to have a Material Adverse Effect; and
(xxiii) any outstanding written commitment to enter into any Contract of the type described in subsection (i) through (xxii) of this Section 3.11(a). All Contracts set forth in Section 3.11(a) of the Disclosure Schedules and any Contract required to be set forth therein, but omitted therefrom are referred to herein as “Material Contracts.” The Company Corporation has made available to Buyer an accurate a correct and complete, in all material respects, complete copy of each Material Contract (including any and all amendments and other modifications to such Contract. With respect to each Material Contract: ).
(ib) such Each Material Contract is in full force and effect and is the legal, validvalid and binding obligation of the Corporation, binding and is enforceable against the CompanyCorporation in accordance with its terms (subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws of general application affecting the rights and remedies of creditors and general principles of equity) and, to the Knowledge of the CompanyCorporation, is the legal, valid and binding obligation of the other parties theretothereto (the “Other Parties”), in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting and neither the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default andCorporation nor, to the Knowledge of the CompanyCorporation, no other party any of the Other Parties to such any Material Contract is in breach breach, violation or default thereunderdefault, and no event has occurred which with notice or circumstance exists that lapse of time or both would constitute a breach breach, violation or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) , or permit termination, modification or acceleration by the Company has performed all material obligations previously required to be performed by it Other Parties, under such Material Contract; .
(ivc) The Corporation has not waived any material right it may have under any Material Contract. No party has provided any written or oral notice of any intention to terminate, materially modify or accelerate any Material Contract.
(d) Except as set forth in Section 3.11(d) of the Company’s KnowledgeDisclosure Schedules, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification consent of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the any Material Contract has not repudiated is required in writing any portion connection with the performance of such Material Contractthis Agreement.
Appears in 1 contract
Material Contracts. Schedule 5.13 (a) Section 3.11(a) of the Company Disclosure Letter lists all of the following written contracts and other written agreements Contracts to which the Company or any of its Subsidiaries is a party (collectively, the “Material Contracts”):
(ai) any agreement written employment Contract or any plan or Contract providing for bonuses, pensions, options, stock purchases, deferred compensation, retirement payments, profit sharing or collective bargaining, or any Contract with any labor union;
(ii) any subcontracts or purchase orders, in each case involving an outstanding commitment or payment in excess of $1,000,000 or any other Contracts creating any outstanding obligation of or to the ten largest suppliers Company or any of its Subsidiaries of $1,000,000 or more with respect to any such Contract;
(iii) any Contract providing for the purchase of all or substantially all of its requirements of a particular product from a supplier;
(iv) any fixed price Contract for any project equal to or in excess of $5,000,000;
(v) any acquisition, merger or similar Contract with respect to the acquisition of any Equity Interests or assets between the Company or any of its Subsidiaries and any third party entered into during the ten largest customers past six (6) years;
(vi) any Contract containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or with any Person or containing any exclusive dealing obligation;
(by dollar amountvii) any Contract (other than purchase orders or change orders) for the purchase of any fixed asset involving amounts greater than $500,000 or having a term longer than one (1) year, whether or not such purchase is in the ordinary course of business;
(viii) any license agreement (as licensor or licensee) for Company Intellectual Property involving amounts greater than $250,000 or having a term longer than one (1) year, other than non-enterprise software licenses (e.g. personal computers) or readily commercially available enterprise software licenses;
(ix) any Contract or commitment for the borrowing of money, and any related pledge or security arrangement;
(x) any surety bond (bid, performance or other), each on letter of credit, agreement of guarantee or indemnification (other than indemnification provisions in commercial agreements, leases and other arrangements entered into in the ordinary course of business), or any commitment to issue any such surety bond, letter of credit, agreement of guarantee or indemnification;
(xi) any Contract (including any employment or severance Contract) with any current or former officer, employee, consultant (other than services agreements entered into in the ordinary course of business which involve amounts less than $250,000), director or Stockholder of the Company or any of its Subsidiaries or with any of their Affiliates (other than Contracts relating solely to confidentiality or non-solicitation agreements to which any current employee is bound);
(xii) any Contract with any Governmental Authority with an outstanding contract balance in excess of $1,000,000;
(xiii) any settlement or conciliation (excluding any change orders) with any Governmental Authority, or pursuant to which the Company or any of its Subsidiaries will be required to satisfy any material obligations after the execution date of this Agreement;
(xiv) any registration rights agreements, warrants, warrant agreements or other rights to subscribe for securities, any voting agreements, voting trusts, shareholder agreements or other similar arrangements or any stock purchase or repurchase agreements or stock restriction agreements;
(xv) any partnership, joint venture, stockholder or other similar Contract or arrangement or any other Contract or arrangement involving a consolidated basis for sharing of profits, revenues, losses or costs with any Person; or
(xvi) except as set forth in Section 3.11(a) of the fiscal year ended December 31Company Disclosure Letter, 2010 and setting forth any Contract not executed in the approximate dollar amount and the approximate percentage ordinary course of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;business.
(b) any agreement (or group of related agreementsExcept as set forth in Section 3.11(b) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or Disclosure Letter, each Material Contract is valid and is in any location;
(g) any agreement (i) relating to full force and effect and constitutes the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially availablelegal, off-the-shelf software) valid and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate binding obligation of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreementits Subsidiaries, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Companyas applicable, and, to the Knowledge of the Company, the other parties thereto, enforceable in accordance with its terms, except as enforcement the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law other Laws affecting the rights of creditors generally; generally and subject to the rules of law governing (iiand all limitations on) specific performance, injunctive relief and other equitable remedies. Except as set forth in Section 3.11(b) of the Company is not (with or without Disclosure Letter, none of the lapse of time or the giving of noticeCompany, or both) in breach or default andits Subsidiaries or, to the Knowledge of the Company, no any other party to such any Material Contract Contract, is in breach or material default thereunderin complying with any provisions thereof, and no condition or event has occurred or circumstance fact exists that which, with notice, lapse of time or both would constitute a breach or material default by thereof on the Company part of the Company, its Subsidiaries or, to the Knowledge of the Company’s Knowledge, by on the part of any other party thereto in any such other party; case that has or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company and its Subsidiaries have provided or made available to Parent true, correct and complete copies of each Material Contract.
(c) Except as set forth in Section 3.11(c) of the Company Disclosure Letter, since January 1, 2006, neither the Company nor any of its Subsidiaries has (i) been ordered pursuant to a written notice to stop or suspend any work as a result of, or relating to, deficiencies in work or a failure to perform, (ii) received any written notice of default or suspension with respect to any contracts with Customers, or (iii) the Company has performed all material obligations previously required received any written threat of debarment or agreed to be performed by it under such Material Contract; (iv) any voluntary exclusion to the Company’s Knowledge, no event has occurred refrain from submitting bids or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien proposals on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractContracts.
Appears in 1 contract
Sources: Merger Agreement (TUTOR PERINI Corp)
Material Contracts. (a) Schedule 5.13 lists 3.6(a) sets forth a true and correct list as of the date of this Agreement of the following written contracts Contracts (other than this Agreement and other written agreements any Material Lease or any sale or purchase orders entered into with any customer or supplier in the ordinary course of business) to which any of the Company Group Companies is a party or by which the property or assets of any Group Company are otherwise bound (collectively, the “Material Contracts”):
(ai) Contracts for the employment or engagement of any officer, individual employee or other individual on a full‑time, part-time, consulting or other basis (A) providing annual base salary, service fee and/or guaranteed bonus in excess of $150,000 (other than Contracts with any individual in the United States that are terminable at-will or any Contract with any individual outside of the United States that are terminable upon sixty (60) days’ notice or less, without liability to any Group Company beyond that which is required by applicable law) or (B) providing for severance, separation or termination pay upon termination of employment or engagement or change of control payments that remain outstanding; EAST\134549672.25 27
(ii) Contracts with temporary employment agencies or similar entities relating to the assignment of temporary employees (full-time or seasonal) to work at any of the Group Companies, that account for, in the aggregate, at least a majority of such temporary employees engaged by the Group Companies;
(iii) Contracts relating to Funded Indebtedness (other than the Credit Facility and any ancillary documents executed in connection therewith), except for Funded Indebtedness for an amount less than $100,000;
(iv) Contracts under which any Group Company is lessee of or holds or operates any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $100,000;
(v) Contracts under which any Group Company is lessor of or permits any third party to hold or operate any tangible property (other than real property), owned or controlled by the Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $100,000;
(vi) any agreement partnership, strategic alliance, joint venture, manufacturer, development or supply Contract or other Contract which involves a sharing of revenues, profits or losses by any Group Company with the ten largest suppliers any other third party;
(vii) Contracts pursuant to which any Group Company grants or is granted a license to use any Intellectual Property Rights and the ten largest customers of the Company (which involve payments by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross salesto any Group Company, as applicable, attributable to such in excess of $100,000 in any calendar year (other than for (A) standard off-the-shelf software license agreements entered into in the ordinary course of business and (B) non-exclusive licenses granted in the ordinary course of business);
(viii) Contracts (other than purchase orders for sales of products or services in the ordinary course of business) with any customer or supplier set forth on Schedule 3.19 or customerSchedule 3.20, as applicable;
(bix) any agreement (Contracts requiring or group of related agreements) for the lease of personal property to or from any Person providing for lease payments capital expenditures in excess of $100,000 per annum250,000 in any fiscal year;
(cx) except for any agreement entered into in the Ordinary Course of BusinessContracts relating to interest rate, any agreement (or group of related agreements) for the purchase or sale of supplies, products currency or other personal property, or for the furnishing or receipt of serviceshedging arrangements;
(dxi) Contracts that relates to the future disposition or acquisition of material assets (other than Inventory) or properties by any agreement, commitmentGroup Company, or outstanding purchase order relating any merger or business combination with respect to capital expenditures any Group Company;
(xii) other than any Contracts specified in clauses (i) through (viii) above, Contracts that involves total remaining payments involve payments, performance of services or delivery or distribution of goods or materials by the or to any Group Company of $250,000 or more in any calendar year; EAST\134549672.25 28
(xiii) Contracts (other than employment, severance or similar Contracts with employees or directors of Group Companies) that cannot be terminated on less than ninety (90) days’ notice without an early termination penalty of more than $100,000.
(e) 250,000 being payable by any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Group Company;
(hxiv) Contracts prohibiting any agreement Group Company from freely engaging in any business or otherwise limiting a Group Company from engaging in or competing with any Person in any business or in any geographical area;
(xv) management Contracts (other than Contracts with officers or group employees of related agreementsa Group Company) that require a Group Company to make payments of any cash or other compensation or benefits, including agreements providing for the payment of cash or other compensation or benefits upon the consummation of the Transactions;
(xvi) Contracts relating to the ownership of, acquisition of or investment in any business or enterprise (including investments in joint ventures and minority equity investments) under which any the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior Group Companies continue to the Closing)have material monetary obligations;
(ixvii) any agreement collective bargaining Contract or other Contract with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase labor union or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company bargaining representative of less than $100,000, (B) have a remaining term group of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification employees of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Group Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.;
Appears in 1 contract
Sources: Purchase Agreement (Cimpress N.V.)
Material Contracts. (a) Schedule 5.13 lists 3.11(a) contains a complete list of the following leases, contracts, commitments and agreements, oral or written contracts and other written agreements ("Contracts") to which the Company or any Company Subsidiary is a party (collectively, the “Material Contracts”):or by which any of its assets or properties is bound:
(ai) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount)all contracts, each agreements plans or arrangements required to be listed on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableSchedule 3.16;
(bii) each management agreement, operating agreements, services agreement and other agreements pertaining to the operation and maintenance of any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease Facility with annual payments in excess of $100,000 per annumand that is not terminable by the Company or any Company Subsidiary within a 90-day period without substantial cost or penalty;
(ciii) except for all collective bargaining or other labor or union contracts or agreements;
(iv) all instruments relating to Indebtedness, including any note, bond, deed of trust, mortgage, indenture or agreement entered into in the Ordinary Course of Businessto borrow money, any agreement relating to the extension of credit or the granting of an Encumbrance (other than a Permitted Lien within the meaning of clause (f), clause (g), clause (h) or group clause (i) of related agreements) for the purchase or sale of supplies, products or other personal propertydefinition thereof), or for any agreement of guarantee in favor of any Person other than the furnishing or receipt of servicesCompany;
(dv) any each agreement, commitment, commitment or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company or any Company Subsidiary of more than $50,000 individually or $250,000 in the aggregate;
(vi) all agreements relating to the future disposition or acquisition of any interest in any business enterprise (whether through the purchase or sale of assets or stock or by merger, consolidation or other business combination) for a purchase price of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(fvii) each contract, agreement or commitment (including any agreement containing a covenant not lease for Leased Real Property) which (A) provides for annual aggregate payments to compete granted by or from the Company or any Company Subsidiary in favor excess of $50,000 or (B) does not expire or is not terminable without substantial cost or penalty at the option of the Company or the Company Subsidiary within a third party that impairs 90-day period, excluding purchase orders made in the ordinary course of business as currently conducted, consistent with past practice and contracts;
(viii) all contracts or agreements which expressly restricts restrict the ability of the Company or Company Subsidiaries to conduct business of any type or in any location;
(gix) any agreement (i) relating to the licensing by or to the Company all material powers of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Companyattorney;
(hx) any agreement (all licenses or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) agreements required to be listed on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the ClosingSchedule 3.12(c);
(ixi) any agreement all bonus, profit-sharing, compensation, stock option, pension, retirement, deferred compensation, accrued vacation pay, group insurance, welfare agreements or other plans, agreements, trusts or arrangements for the benefit of employees;
(xii) all partnership or joint venture agreements;
(xiii) all agreements, arrangements or understandings with any Affiliate of the Company (other than or any such agreement that will be terminated at or prior to the Closing);Company Subsidiary; and
(jxiv) all material agreements, contracts or commitments for any agreementcharitable or political contribution.
(b) True, plan or arrangement by which correct and complete copies of the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan agreements set forth on Schedule 5.133.11(a) have been made available for inspection by Parent prior to the date of this Agreement. All Contracts set forth on Schedule 3.11(a) are in full force and effect, (ii) any agreements that either (A) require future payments by and except as set forth on Schedule 3.11(b), neither the Company of less than $100,000nor any Company Subsidiary, (B) have as applicable, is in default in any material respect, has done any act or failed to do any required act which constitutes a remaining term of less than one year and can be terminated by the Company upon default in any material respect, has received written notice of 60 days or less without material cost or penaltysuch a default, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon received written notice of sixty days an event or less without substantial cost occurrence of which with the giving of notice or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time could constitute a default in any material respect under any covenant or the giving of noticecondition under any Contract set forth on or required to be set forth on Schedule 3.11(a), or both) in breach or default and, to the Knowledge of the Company, no other party to any such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractmaterial respect thereunder.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Select Medical Corp)
Material Contracts. (a) Section 3.16(a) of the Company Disclosure Schedule 5.13 lists sets forth a complete and accurate list of each of the following written contracts and other written agreements Contracts to which the Company or any of its Subsidiaries is a party or otherwise bound (any Contract of a nature described below (whether or not set forth on the Company Disclosure Schedule) to which the Company or any of its Subsidiaries is a party or otherwise bound, being referred to herein as a “Material Contract” and, collectively, as the “Material Contracts”):
(ai) (A) any agreement Employee Agreement granting any change of control, severance, or termination pay (in cash or equity or otherwise) to any Employee, or (B) any contractor, consulting or sales Contract, or commitment with a vendor, firm or other organization involving, in the ten largest suppliers and the ten largest customers case of the Company subclause (by dollar amountB), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease future payments in excess of $100,000 per annum50,000 in the aggregate;
(cii) except any Contract or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, or any plan providing similar equity awards, for which any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal propertybenefits will be increased, or for which the furnishing vesting of benefits will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (or receipt any events following the Merger, contingent or otherwise), or for which the value of servicesany of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement (other than using the estimated per-share consideration amount to be paid in connection with the Merger for purposes of effecting net or “cashless” exercises of the Company Options and Company Warrants);
(diii) any agreement, commitment, fidelity or outstanding purchase order surety bond or completion bond;
(iv) any Lease Agreements or lease of personal property having a value in excess of $25,000 individually;
(v) any Contract of indemnification or guaranty.
(vi) any Contract or commitment relating to capital expenditures that involves total remaining involving future payments by in excess of $50,000 individually or $100,000 in the Company of more than $100,000.
(e) any agreement concerning a partnership or joint ventureaggregate;
(fvii) any agreement containing Contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company’s or its Subsidiaries’ businesses;
(viii) any mortgages, bonds, notes, indentures, guarantees, loans or credit agreements, security agreements or other Contracts or instruments relating to the borrowing of money or extension of credit or other material Company Debt, other than (A) accounts receivables and payables and (B) advances to employees for travel and business expenses, in each case in the ordinary course of business;
(ix) any purchase order or Contract for the purchase of materials involving in excess of $25,000 individually;
(x) any Contracts that contain “most favored nation” or similar pricing provisions pursuant to which a covenant not party thereto has the right to compete granted by the Company in favor of a third party that impairs the business as currently conductedreduce pricing terms due to pricing terms offered to other customers;
(xi) any distributor, dealer, sales representative, original equipment manufacturer, value added, remarketer, reseller, independent software vendor, joint marketing, strategic alliance, affiliate or which expressly restricts the ability other Contract for distribution of the Company to conduct business of any type Products or in any locationServices;
(gxii) any agreement Contract or commitment to alter the Company’s interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(ixiii) relating to any other Contract or commitment that provides for the licensing payment by or to the Company in an amount in excess of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) $50,000 in the aggregate or more and (ii) that is material to the business of the Companynot cancelable without penalty within 30 days;
(hxiv) any agreement Contract materially limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete or to develop or to distribute or to sell;
(or group of related agreementsxv) under any Company Intellectual Property Contract; or
(xvi) any Contract granting a Lien.
(b) Each Material Contract to which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, Subsidiaries is a party or any of its properties or assets (whether tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
intangible) (i) any agreement with any Affiliate of is subject is valid and binding on the Company (other than any or such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13Subsidiary, (ii) any agreements that either (A) require future payments by is, to the Company Knowledge of less than $100,000the Company, (B) have a remaining term enforceable against each of less than one year the parties thereto in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and can be terminated by the Company upon notice similar Laws of 60 days general applicability relating to or less without material cost or penaltyaffecting creditors’ rights and to general equity principles, or and (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee is in full force and effect (other than advances in those Contracts that by their terms have expired or been terminated since the Ordinary Course of Business);
(ldate hereof) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby with respect to the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, Subsidiary and, to the Knowledge of the Company, the any other parties party thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) . Neither the Company is not (with or without the lapse nor any of time or the giving of noticeits Subsidiaries party to any such Material Contract, or both) in breach or default andnor, to the Knowledge of the Company, no any other party to such Material Contract thereto, is in breach of, or default thereunderunder, any such Material Contract, and no event has occurred that with notice or circumstance exists that lapse of time or both would constitute such a material breach or default thereunder by the Company or any of its Subsidiaries, or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any knowledge of the Company’s securities or , any other party thereto, except in each of the properties foregoing cases for any such breach or assets of default that has not and would not reasonably be expected to be, individually or in the aggregate, material to the Company under any such and its Subsidiaries, taken as a whole. True and complete copies of each Material Contract Contract, including all amendments, supplements and other modifications thereto (other than Permitted Liens) nor has whether or not disclosed in the Company given or received written notice alleging the same; and (v) the other party Disclosure Schedule), have been delivered to the Material Contract has not repudiated in writing any portion of such Material ContractParent.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 lists the following written contracts 5.12(a) sets forth a true, correct and other written agreements complete list of all Contracts described in clauses (i) through (xi) below to which the any Target Company is a party or by which any Target Company, or any of its properties or assets are bound (collectivelyeach Contract required to be set forth on Schedule 5.12(a), other than a Company Benefit Plan, a “Company Material Contract”) and the “Material Contracts”):Company has made available to the SPAC, true, correct and complete copies of, each:
(ai) contains covenants that materially limit the ability of any Target Company (A) (1) to compete in any line of business, with any Person or in any geographic area, (2) to sell or provide any service or product or (3) to solicit any Person, other than in respect of customary non-disclosure agreements entered into by any Target Company in the ordinary course of business or (B) to purchase or acquire an interest in any other Person;
(ii) providing for the formation of any joint venture or profit-sharing agreement or arrangement;
(iii) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of any Target Company having an outstanding principal amount in excess of $500,000 between the Company and any Subsidiary;
(iv) was entered into during the past three (3) years involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $5,000,000 (other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, (B) in the ordinary course of business consistent with past practice or (C) between the Company and any Subsidiaries);
(v) pursuant to which payments or receipts by the Target Companies under such Contract or Contracts exceeded $500,000 in the fiscal year ending December 31, 2021 in the aggregate (other than any Contract for professional services rendered in connection with the ten largest suppliers and the ten largest customers Public Filing or an initial public offering of the Company (by dollar amounton the Hong Kong Stock Exchange), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(bvi) is with any agreement Top Supplier, excluding any non-disclosure agreements, purchaser order forms, sales acknowledgement forms or similar agreements entered into in the ordinary course of business consistent with past practice;
(vii) is between any Target Company and any directors, officers or group employees of related agreements) a Target Company (including, for the lease avoidance of personal property doubt, the Key Management) (other than at-will employment arrangements, employee confidentiality and invention assignment agreements or equity or incentive equity agreements with employees entered into in the ordinary course of business consistent with past practice) or any Related Person;
(viii) obligates the Target Companies to make any capital commitment or from expenditure in excess of $500,000 (including pursuant to any Person providing for lease joint venture);
(ix) relates to a material settlement entered into within two (2) years prior to the date of this Agreement or under which any Target Company has outstanding obligations (other than customary confidentiality obligations) that would be reasonably likely to involve payments in excess of $100,000 per annum500,000 after the date of this Agreement;
(cx) except relates to the development, ownership, licensing or use of any material Intellectual Property by, to or from any Target Company, other than (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for any agreement Software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $100,000 per year (collectively, “Off-the-Shelf Software”), (B) employee or consultant invention assignment agreements entered into on a Target Company’s standard form of such agreement, (C) confidentiality agreements entered into in the Ordinary Course ordinary course of Businessbusiness, (D) non-exclusive licenses from customers or distributors to any agreement Target Company entered into in the ordinary course of business or (E) feedback and ordinary course trade name or group of related agreements) for logo rights that are not material to any Target Company (the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;“Company IP Licenses”); or
(dxi) any agreementthe termination of which, commitmentwould be otherwise material to the Target Companies, or outstanding purchase order relating to capital expenditures that involves total remaining payments taken as a whole and not covered by the Company of more than $100,000clauses (i) through (x) above.
(eb) any agreement concerning a partnership The Target Companies are not in breach of or joint venture;
(f) any agreement containing a covenant not to compete granted by default under the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business terms of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such any Company Material Contract is in breach of or default thereunderunder the terms of any Company Material Contract, and no event has occurred or circumstance exists not occurred through any of the Target Companies’ 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 by under the terms of any Company Material Contract, in each case, except as would not reasonably expected to be, individually or in the aggregate, material to the Target Companies, taken as a whole. Each Company Material Contract (i) is a valid and binding obligation of the Target Company that is party thereto and, to the Knowledge of the Company, of each other party thereto, and (ii) is in full force and effect, subject to the Enforceability Exceptions, in each case, except as would not be reasonably expected to be, individually or in the aggregate, material to the Target Companies, taken as a whole. There are no, and since December 31, 2019 there have not been, disputes pending or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any Knowledge of the Company’s securities or , threatened with respect to any Company Material Contract, and the Target Companies have not received any written notice of the properties or assets intention of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the a Company Material Contract has not repudiated in writing to terminate for default, convenience or otherwise any portion of such Company Material Contract, except as would not be reasonably expected to be, individually or in the aggregate, material to the Target Companies, taken as a whole.
Appears in 1 contract
Sources: Business Combination Agreement (Maxpro Capital Acquisition Corp.)
Material Contracts. Section 3.10(a) of the Company Disclosure Schedule 5.13 lists is a true and complete list, as of the date of this Agreement, of all of the following written contracts and other written agreements Contracts to which the Company or its Subsidiaries is a party or by which they are bound (collectivelyas amended or modified, the “Company Material Contracts”):
(ai) Contracts evidencing any agreement with the ten largest suppliers and the ten largest customers obligations of the Company (by dollar amount)or any of its Subsidiaries with respect to the issuance, each on a consolidated basis for sale, repurchase or redemption of any Equity Securities of the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage Company or any of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableits Subsidiaries;
(bii) all Company Real Property Leases that provide for annual payments to the landlord in excess of $300,000 by the Company or any agreement of its Subsidiaries;
(or group iii) all Company Employment Contracts;
(iv) all Company IP Agreements that are material to the operation of related agreementsthe businesses of the Company and its Subsidiaries as currently conducted;
(v) for the lease of personal property to or from Contracts with any Person providing for lease Material Supplier under which payments in excess of $100,000 2,000,000 were made or payable by the Company and its Subsidiaries (on a consolidated basis) in the eight (8)-month period ended August 31, 2017 (including any master purchasing or similar agreements governing the purchase of goods or services from such Material Supplier);
(vi) Contracts between a Company Professional Association, on the one hand, and the Company or any of its Subsidiaries (other than Company Professional Associations), on the other hand;
(vii) leases of personal property under which the Company or any of its Subsidiaries is the lessee and is obligated to make payments more than $500,000 per annum;
(cviii) except for Contracts relating to any agreement Proceeding involving the Company or any of its Subsidiaries (A) entered into at any time during the last five (5) years that involve any payment in excess of $500,000 or that primarily involve any non-monetary rights or obligations or (B) under which obligations binding the Ordinary Course of Business, any agreement (Company or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of servicesits Subsidiaries remain outstanding;
(dix) any agreement, commitment, or outstanding purchase order Contracts relating to capital expenditures that involves total remaining payments by the acquisition or disposition of any Equity Securities or business line of the Company or the Subsidiaries of more than $100,000.
the Company entered into at any time during the last five (e5) any agreement concerning a partnership years or joint ventureunder which obligations binding the Company or its Subsidiaries remain outstanding;
(fx) any agreement containing a covenant not to compete granted by Contracts (other than real property leases solely restricting the Company in favor use of a third party that impairs real property) limiting the business as currently conducted, or which expressly restricts the ability freedom of the Company or any of its Subsidiaries to conduct business engage in any line of business, acquire any type entity or compete with any Person or in any locationmarket or geographical area;
(gxi) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either Contracts (A) require future payments by the Company of less than $100,000providing for exclusivity, preferred treatment or any similar requirement, (B) have containing a remaining term of less than one year and can be terminated by “requirements” obligation requiring the Company upon notice or any of 60 days its Subsidiaries to purchase a designated portion of any type of material, product or less without material cost other supplies, (C) with a “most favored nations” clause or penaltyother similar provision, (D) containing a warranty of fitness for a particular purpose or (iiiE) any oral “at will” employment arrangementswith take-or-pay obligations;
(kxii) Contracts involving a joint venture or partnership or involving the sharing of profits, losses, costs or liability by Company with any agreement under which other Person;
(xiii) Contracts, mortgages, indentures, notes, bonds or other agreements for or relating to the incurrence or existence of Company Indebtedness, or the making of any loans to another Person or granting of Liens on any property or asset of the Company has advanced or loaned any of its Subsidiaries in an amount in excess of $250,000;
(xiv) Contracts containing restrictions with respect to payment of dividends or any employee other distributions in respect of the capital stock or other equity interests of the Company or any of its Subsidiaries;
(xv) Contracts (other than advances in the Ordinary Course of Business);
(lcustomer Contracts) any settlement, conciliation or similar agreement entered by any with Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay moneyAuthorities; and
(mxvi) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case Contract not included in clauses (a) through (l) above, which has future required otherwise listed above involving reasonably anticipated payments to or by from the Company or any of its Subsidiaries in excess of $100,000 2,500,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractannum.
Appears in 1 contract
Sources: Equity Purchase and Contribution Agreement (Select Medical Corp)
Material Contracts. Schedule 5.13 lists (a) Except as disclosed in Section 2.9 of the following written contracts and other written agreements to which Seller Disclosure Letter, the Company is not a party (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);bound by:
(i) (A) any agreement with for the employment of any Affiliate of officer, individual employee or other Person on a full time, part time, or other basis, excluding any offer letter provided to, or similar arrangement with, any employee which may be terminated at will and without cost to the Company (other than any such agreement that will be terminated at or prior cost to the ClosingCompany under the Company’s general severance plans); (B) any agreement for consulting services providing for annual compensation in excess of $50,000; or (C) any agreement relating to loans to officers, directors or Affiliates;
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount money to any employee other Person;
(iii) any lease or agreement under which the Company is lessee of or holds or operates any personal property, owned by any other than advances in Person, except for any lease of personal property under which the Ordinary Course of Businessaggregate annual rental payments do not exceed $25,000;
(iv) any agreement relating to Indebtedness (whether incurred, assumed, guaranteed or secured by any asset);
(lv) any settlementjoint venture, conciliation partnership, limited liability company or other similar agreements or arrangements (including any agreement entered providing for joint research, development or marketing);
(vi) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business, capital stock or assets of any other Person or any material real property (whether by merger, sale of stock, sale of assets or otherwise);
(vii) any agreement that (A) materially limits the freedom of the Company to compete in any line of business or with any Person or in any area or that would so limit the freedom of Buyer or its Affiliates or the Company after the Closing or (B) contains material exclusivity obligations or restrictions binding on the Company or that would be binding on Buyer or any of its Affiliates after the Closing;
(viii) any agreement or series of related agreements for the purchase of materials, supplies, goods, services, equipment, Intellectual Property or other assets (including any agreement with any Governmental Authority whereby to obtain data that are used by the Company is to provide products and services to its customers) that provides for aggregate payments by the Company over the remaining term of such agreement or related agreements of $500,000 or more or under an obligation to perform activities, refrain from activities and/or pay money; andwhich the Company made payments of $200,000 or more during the twelve-month period ending on the date hereof;
(mix) any sales, distribution, agency or other similar agreement providing for the sale by the Company of materials, supplies, goods, services, equipment or other assets that provides for aggregate payments to the Company over the remaining term of the agreement of $750,000 or more or under which payments of $250,000 or more were made to the Company during the twelve-month period ending on the date hereof;
(x) any agreement relating to any interest rate, derivatives or hedging transaction; or
(xi) any agreement (including any “take-or-pay” or keepwell agreement, contract, lease, license, instrument ) under which (A) any Person has directly or commitment binding upon indirectly guaranteed any liabilities or obligations of the Company, Company or (B) the Company has directly or indirectly guaranteed any liabilities or obligations of any other Person (in each case not included other than endorsements for the purpose of collection in clauses the ordinary course of business).
(ab) through Each agreement disclosed, or required to be disclosed, in the Seller Disclosure Letter pursuant to this Section 2.9 or Section 2.10 or 2.11 (leach, a “Material Contract”) aboveis a valid and binding agreement of the Company (subject to the effects of applicable bankruptcy, which has future required payments clarification, insolvency, fraudulent conveyance, moratorium, sponsorship or other Laws relating to or by affecting creditors’ rights generally and to general principles of equity, whether considered at law or in equity) and is in full force and effect, and neither the Company nor, to the Knowledge of Seller, any other party thereto is in excess of $100,000 per annum and default or breach in any material respect under (or is not terminable by alleged to be in default or breach in any material respect under) the Company upon terms of, or has provided or received any notice of sixty days or less without substantial cost or penalty. The Company has made available any intention to Buyer an accurate and completeterminate, in all material respects, copy of each any such Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the CompanySeller, the other parties theretono event or circumstance has occurred that, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium notice or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticeboth, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute an event of default thereunder or result in a breach termination thereof or default by would cause or permit the Company or, acceleration of or other changes of or to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred right or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or the loss of any benefit underthereunder, result except, in any payment becoming due undereach case, as would not reasonably be expected, individually or result in the imposition aggregate, to have a Material Adverse Effect. Seller has provided to Buyer a true and complete copy of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such each Material Contract.
Appears in 1 contract
Material Contracts. Section 2.26 of the Disclosure Schedule 5.13 lists contains a true, complete and correct list of the following written contracts and other written agreements Contracts to which the Company is a party or by which any of its assets are bound (collectively, the each Contract so listed or required to be so listed being a “Material ContractsContract”):) and, to the extent that a Material Contract is not written, Section 2.26 of the Disclosure Schedule contains an accurate description of the material terms thereof, and each Material Contract is listed under a heading in Section 2.26 of the Disclosure Schedule that corresponds with the applicable clause among the following to which such Material Contract relates:
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount)each distributor, each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicableadvertising, attributable to such supplier agency or customer, as applicablemanufacturer’s representative Contract;
(b) any agreement (or group of related agreements) each Contract for the lease purchase of personal property to materials, supplies, equipment or from any Person providing for lease payments in excess services involving more than $50,000 over the life of $100,000 per annumthe Contract;
(c) except each Contract relating to the acquisition by the Company of any assets of a substantial nature, operating business or capital stock of any other Person, the participation in a joint venture or similar arrangement with any other Person or the making of any other investment in any other Person;
(d) each Contract or commitment granting exclusive marketing or distribution or other exclusive rights;
(e) each License, and each other Contract relating to the acquisition, transfer, development, license, use or commercialization of Intellectual Property or any waiver or release of rights in, to or under Intellectual Property;
(f) each Contract, offer or proposal made by or binding upon the Company to any customer or potential customer for the sale of Products having a value of more than $25,000;
(g) each trust indenture, mortgage, promissory note, loan agreement or other Contract or instrument relating to Indebtedness, or any currency exchange, commodities or other similar Contract;
(h) each Contract for capital expenditures in excess of $50,000 individually or $100,000 in the aggregate;
(i) each Contract limiting the freedom of the Company to engage in any line of business or to compete with any other Person;
(j) each Contract containing any form of most-favored provisions in favor of any supplier or customer of the Company;
(k) each Contract purporting to impose confidentiality, non-disclosure, non-solicitation or non-disparagement obligations on the Company, or any of its current or former employees, directors, officers or agents, including former employees, directors, officers or agents of any Company Subsidiary other than customary non-disclosure agreements with commercial third parties entered into in the Ordinary Course of Business that do not contain non-solicitation or non-disparagement obligations;
(l) each settlement agreement as to which the Company continues to be bound;
(m) each Contract for the lease of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal assets;
(n) each employment agreement or any other Contract that contains any severance, retention, termination pay, change of control payment or similar Liabilities;
(o) each Contract with any director, officer, employee, consultant or stockholder of the Company or any of their respective family members;
(p) each collective bargaining agreement, labor contract or similar Contract governing any employee of the Company;
(q) each Contract of guarantee, support, indemnification, assumption or endorsement of, or any similar Contract with respect to, Liabilities or Indebtedness of any other Person other than in the Ordinary Course of Business;
(r) each Contract with a Governmental Entity;
(s) each Contract of any Company Subsidiary as to which the Company has any material continuing obligation; and
(t) each other Contract not entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Pacira Pharmaceuticals, Inc.)
Material Contracts. Schedule 5.13 lists Section 2.6(a) of the Equityholder Disclosure Schedules sets forth a correct and complete list of all of the following written contracts and other written agreements Contracts to which the Company is a party (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of Any: (i) Contract under which the Company sold or purchased (by dollar amountor agreed to sell or purchase) products or services pursuant to which the aggregate payments due to or from the Company, respectively, during the one (1) year period preceding the date of this Agreement was equal to or exceeded twenty-five thousand dollars ($25,000); (ii) sales or billing and invoices to prospects or customers under which the Company has not received a formal sales contract or purchase order for equipment, software and/or services that provides for payment of at least twenty-five thousand dollars ($25,000); or (iii) Contract providing for aggregate marketing expenses of at least twenty-five thousand dollars ($25,000), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases one-time or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicablerecurring basis;
(b) any agreement (or group of related agreements) Contract for the lease employment of personal property to any employee of the Company (including severance, retention or from any Person providing related Contracts), which shall, for lease payments in excess the avoidance of $100,000 per annumdoubt, include offer letters and similar documents;
(c) except for any agreement entered into in Contract under which the Ordinary Course of Business, Company has agreed to indemnify any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal propertythird Person with respect to, or to otherwise share, the Liability of any third Person for the furnishing or receipt of servicesTaxes;
(d) any agreement, commitment, Contract (or outstanding purchase order relating to capital expenditures that involves total remaining payments group of related Contracts) involving a commitment by the Company to make a capital expenditure or leasehold improvement or series of capital expenditures or leasehold improvements or to purchase any capital asset(s) involved more than ten thousand dollars ($100,000.10,000) individually or fifty thousand dollars ($50,000) in the aggregate;
(e) any agreement concerning Contract that contains a covenant not to compete that limits or will limit the Company from engaging in its business, as currently conducted or planned to be conducted, in any geographic market;
(f) any Real Property Lease or Personal Property Lease;
(g) any Contract establishing or agreeing to establish a partnership or joint venture;
(fh) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conductedasset purchase agreements, stock purchase agreements, and other acquisition or which expressly restricts the ability of the Company to conduct business of divestiture agreements, including any type or in any location;
(g) any agreement (i) Contracts relating to the licensing by sale, lease or to the Company disposal of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is any material to the business properties or assets of the Company;
, for consideration in excess of one thousand dollars (h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing$1,000);
(i) any agreement with any Affiliate Contract relating to Indebtedness, other than trade payables to suppliers of the Company (other than any such agreement that will be terminated at or prior to incurred in the Closing)ordinary course of business consistent with past practice;
(j) any agreement, plan or arrangement by Contract under which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase has directly or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) indirectly guaranteed any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company Liabilities of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangementsanother Person;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business)collective bargaining agreement;
(l) any settlement, conciliation Contract with respect to the issuance of any equity or similar agreement entered by any Governmental Authority whereby debt securities of the Company is under an obligation to perform activities, refrain from activities and/or pay money; andCompany;
(m) any other agreementmaterial Contract not made in the ordinary course of business; and
(n) any commitments or Contracts to enter into any of the foregoing. Except as set forth in Section 2.6(b) of the Equityholder Disclosure Schedules, contract, lease, license, instrument or commitment each Material Contract is a legally valid and binding upon obligation of the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by enforceable against the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Companyaccordance with its terms, and, to the Knowledge of the Company, is a legally valid and binding obligation of the other parties counterparty thereto, enforceable against such counterparty in accordance with its terms, except subject, in each such case, to the Equitable Exceptions, and is in full force and effect. Except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting set forth in Section 2.6(c) of the rights of creditors generally; Equityholder Disclosure Schedules: (iii) the Company is not (with or without the lapse of time or the giving of noticebreach of, or both) in breach or default andunder, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; and (ivii) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of counterparty to any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given is in breach thereof or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractdefault thereunder.
Appears in 1 contract
Sources: Merger Agreement (Data Storage Corp)
Material Contracts. Schedule 5.13 lists the following written contracts and other written agreements to which the (a) Neither Company nor any Company Subsidiary is a party (collectively, the “Material Contracts”):to or bound by:
(ai) any lease (whether of real or personal property and including Leases) providing for annual rentals of $100,000 or more that cannot be terminated on not more than 30 days’ notice without payment by Company or any Company Subsidiary of any material penalty;
(ii) any agreement for the purchase of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments by Company and the Company Subsidiaries of $100,000 or more or (B) aggregate payments by Company and the Company Subsidiaries of $200,000 or more, in each case that cannot be terminated on not more than 30 days’ notice without payment by Company or any Company Subsidiary of any material penalty;
(iii) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases labor union or consolidated gross sales, as applicable, attributable to such supplier association or customer, as applicableother employee group;
(biv) any agreement for employment or consulting services that provides for annual payments by Company or any Company Subsidiary of $100,000 or more, or any retention, severance or change in control agreement with any consultant or employee;
(v) any partnership, joint venture or group other similar agreement or arrangement;
(vi) any agreement relating to the acquisition or disposition of related agreementsany Company Facility or any other material business or material asset (whether by merger, sale of stock, sale of assets or otherwise);
(vii) any agreement, including any mortgage or other grant of security interests, note, guaranty, subordination or intercreditor agreement, relating to indebtedness for borrowed money or the lease deferred purchase price of personal property property, including capitalized leases (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement entered into subsequent to the date of this Agreement as permitted by Section 6.01;
(viii) any Consulting and Services Agreement or from any other agreement with a Person providing for lease payments other than Company or any Company Subsidiary relating to the management, operation or servicing of a Company Facility which obligates Company or any Company Subsidiary to incur charges in excess of $100,000 per annumannually and is not terminable without fee or penalty upon 30 or fewer days’ notice;
(cix) except for any agreement entered into that limits the freedom of Company or any Company Subsidiary to compete in the Ordinary Course any line of Business, business or with any agreement (Person or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of servicesin any area;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(ex) any agreement concerning a partnership to indemnify for non-compliance or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor breach of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights an Environmental Law (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the ClosingLeases);
(ixi) any agreement with any Affiliate “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K promulgated by the Company (other than any such agreement that will be terminated at or prior to the ClosingSecurities and Exchange Commission);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (iixii) any agreements that either (A) require future payments by to enter into any of the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;above; or
(kxiii) any agreement under the termination or breach of which the would reasonably be expected to have a Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);Material Adverse Effect.
(lb) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other Each agreement, contract, plan, lease, license, instrument arrangement or commitment required to be disclosed in the Company Disclosure Schedule pursuant to this Section 4.10 (each, a “Material Contract”) is a valid and binding upon agreement of Company or a Company Subsidiary, as the case may be, and is in full force and effect, and none of Company, any Company Subsidiary or, to Company’s knowledge, any other party thereto is in each case not included default or breach in clauses (a) through (l) aboveany respect under the terms of any such Material Contract, except for any such defaults or breaches which would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse ▇▇▇▇▇▇.▇▇▇▇▇▇▇ has future required payments to or by the Company in excess of $100,000 per annum provided true, complete and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy correct copies of each Material Contract. With respect Contract to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractParent.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists the following written contracts and other written agreements to which the Company is a party (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(bSchedule 2.24(a) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments delivered by the Company to the Acquiror concurrently with the execution of more than $100,000.
(e) any agreement concerning this Agreement sets forth a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company description of all Material Contracts. Except as disclosed in favor of a third party that impairs the business as currently conductedSchedule 2.24(a), or which expressly restricts the ability all of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, Contracts are valid, binding and enforceable against in accordance with their terms and in full force and effect. Except as otherwise indicated on Schedule 2.24(a), the CompanyCompany is not, and, and to the Knowledge knowledge of the Company, the no other parties theretoparty to such Material Contracts is, in accordance with its termsmaterial default thereunder, except as enforcement may be limited by applicable bankruptcyand to such knowledge, insolvencyno event has occurred or is threatened to occur, reorganizationwhich, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, notice or both, would constitute a material default thereunder. For the purposes of this Agreement, the term "Material Contract" shall mean: (i) in breach any agreement or default and, series of related agreements requiring aggregate payments after the date hereof by or to the Knowledge Company of more than $50,000; (ii) any agreement with any labor union or association representing any employee of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates the Company has performed to purchase all material obligations previously required to be performed by it under such Material Contractor substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier; (iv) any agreement for sale of any of the assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties; (v) any partnership, joint venture or similar agreement; (vi) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000; (vii) any agreement containing covenants of the Company not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with the Company or in any line of business of the Company; (viii) any license relating to Company Proprietary Rights (as hereinafter defined) and any other agreement granting or restricting the right of the Company to use any Company Proprietary Rights or other intellectual or intangible property; (ix) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other person; (x) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business); (xi) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money; (xii) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property; and (xiii) any lease relating to equipment or other tangible property with respect to obligations in excess of $50,000; and (xiv) any other agreement material to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 1 contract
Material Contracts. Schedule 5.13 Section 4.15 of the Schedules lists the following written contracts and other written agreements Contracts to which any of the Company and its Subsidiaries is a party as of the date hereof (collectively, collectively the “Material Contracts”):
(ai) any agreement with (or group of related agreements) that involves the ten largest suppliers and the ten largest customers performance of services by the Company and its Subsidiaries in exchange for payment in excess of $100,000 and has an expected duration of not less than twelve (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable12) months;
(bii) any agreement (or group of related agreements) that involves payments by the Company or any of its Subsidiaries in excess of $100,000 or payments to the Company or any of its Subsidiaries in excess of $100,000 and has an expected duration of not less than twelve (12) months;
(iii) any agreement (or group of related agreements) for the lease or purchase of real property to or from any Person;
(iv) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annumannum and a term of at least twelve (12) months;
(cv) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(evi) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(hvii) any agreement (or group of related agreements) under which the Company it has created, incurred, assumed assumed, or guaranteed any Indebtedness (other than Intercompany Obligations) Indebtedness, or any agreement evidencing capitalized lease obligation, or under which the Company it has imposed a Lien (other than a Permitted Lien) Security Interest on any of its material assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing)intangible;
(iviii) any material agreement concerning limiting the Company’s ability to compete with any Person;
(ix) any severance for the benefit of its current or former directors, officers, and employees;
(x) any collective bargaining agreement;
(xi) any agreement with for the employment of any Affiliate individual or entity on a full-time, part-time, consulting, or other basis providing annual compensation in excess of the Company (other than any such agreement that will be terminated at or prior to the Closing)$100,000;
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(kxii) any agreement under which the Company it has advanced or loaned any amount to any employee (other than advances in of its directors, officers, and employees outside the Ordinary Course of Business);
(lxiii) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities OEM repair and/or pay money; andrefurbishment certifications;
(mxiv) any other agreementprior acquisition, contractmerger or purchase agreements; or
(xv) any agreement regarding licensing of, leaseor permitting the use of, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penaltySoftware. The Company has delivered or made available to Buyer an accurate a correct and complete, in all material respects, complete copy of each Material Contractwritten agreement listed in Section 4.15 of the Schedules (as amended to date). With respect to each Material Contractsuch agreement: (iA) such Material Contract the agreement is in full force and effect; (B) the agreement is a legal, valid, binding and enforceable against obligation of the Company or its Subsidiaries (as the case may be) and to the Company’s Knowledge, andis the legal, to the Knowledge valid, binding and enforceable obligation of the Company, the other parties Parties thereto, in accordance with its terms, except as enforcement may be limited by each subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and similar Law laws affecting the creditors’ rights of creditors generally; and (iiC) neither the Company is not (with or without the lapse nor any of time or the giving of notice, or both) in breach or default its Subsidiaries and, to the Knowledge of the Company, no other party to such Material Contract is in material breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractthereof.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (Brightpoint Inc)
Material Contracts. Except as set forth on Schedule 5.13 lists 3.1(q) of the following written contracts and other written agreements to which Disclosure Letter, none of the Company and any of its Subsidiaries is a party (collectively, the “Material Contracts”):
bound by (a) any agreement with the ten largest suppliers and the ten largest customers agreement, contract or commitment providing for annual payments of the Company (by dollar amount)more than $250,000, each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement, indenture or other instrument which contains restrictions with respect to payment of dividends or any other distribution in respect of its capital stock providing for annual payments of more than $250,000, (c) any agreement, indenture or instrument relating to indebtedness providing for annual payments of more than $250,000, (d) any agreement or contract with any Affiliate providing for annual payments of more than $250,000, (e) any interconnection agreement providing for annual payments of more than $250,000, (f) any employment, consulting, severance, "change of control" or other similar agreements, understandings or arrangements, whether written or unwritten, which cover any employee or former employee of the Company or any of its Subsidiaries (the "Employment Agreements"). The Company has provided Parent with a true and correct copy of each of the Employment Agreements (or group a true and complete description of related agreementseach unwritten Employment Agreement) for the lease of personal property to or from (in each case, which may entitle any Person providing for lease to receive payments from the Company or any of its Subsidiaries in excess of $100,000 per annum;
year) or any other similar type of contract, (cg) except any material license, contract or agreement transferring, providing for or restricting the use of, or settling any agreement entered into in the Ordinary Course of Businessclaim with respect to, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal propertyIntellectual Property, or for the furnishing or receipt of services;
(dh) any agreement, commitment, contract or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts commitment limiting the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible Subsidiaries to engage in any line of business or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement compete with any Affiliate of the Company (other than Person or to otherwise acquire property or conduct business in any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan area. Except as otherwise set forth on Schedule 5.133.1(q) of the Disclosure Letter, each contract or agreement set forth on Schedule 3.1(q) of the Disclosure Letter (iior required to be set forth in Section 3.1(q) any agreements that either (Aof the Disclosure Letter) require future payments by is in full force and effect and there exists no material default or material event of default or to the knowledge of each of the Company and each of less than $100,000its Subsidiaries, event, occurrence, condition or act (B) have a remaining term of less than one year and can be terminated by including the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge consummation of the CompanyMerger) which, with the other parties theretogiving of notice, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving happening of noticeany other material event or condition, would become a default or both) in breach or default and, to the Knowledge event of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 1 contract
Material Contracts. (a) Section 3.11(a) of the Partnership Disclosure Schedule 5.13 lists sets forth a true, correct and complete list of the following written contracts and other written agreements Contracts to which either the Company Partnership or any of its Subsidiaries is a party party, to which either the Partnership, any of its Subsidiaries or any of their respective properties is subject, or by which the Partnership or any of its Subsidiaries is otherwise bound (collectively, the “Material Contracts”) (other than the Partnership Benefit Plans set forth on Section 3.14(a) of the Partnership Disclosure Schedule):
(ai) all Contracts (including purchase orders submitted in the ordinary course) with suppliers under which the Partnership or any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease its Subsidiaries makes payments in excess of $100,000 per annum250,000 on an annual basis;
(cii) except for all Contracts (including purchase orders) that individually involve payments to the Partnership or any agreement entered into of its Subsidiaries in the Ordinary Course excess of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services$250,000 on an annual basis;
(diii) any agreement, commitmentagreement for the employment of any employee or with respect to the equity compensation of any employee employed by the Partnership or any of its Subsidiaries that is not terminable at-will;
(iv) any collective bargaining agreement or any other Contract with any labor union, or outstanding purchase order severance agreements, programs, policies or arrangements;
(v) all leases relating to capital expenditures that involves total remaining payments by the Company 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 $100,000.
(e) any agreement concerning a partnership or joint venture250,000 individually by the Partnership and all leases relating to Owned Real Property;
(fvi) any agreement containing a covenant not to compete granted by the Company in favor of a third party all Contracts that impairs the business as currently conductedprovide for an increased payment or benefit, or which expressly restricts accelerated vesting, upon the ability execution of this Agreement or the Company to conduct business of any type Closing or in any locationconnection with the transactions contemplated by this Agreement and the other Transaction Agreements;
(gvii) 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 (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Companyinstrument;
(hviii) any agreement (all Contracts prohibiting the Partnership or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assetsSubsidiaries from freely engaging in any business or competing anywhere in the world, tangible including, without limitation, any material nondisclosure or intangible (other than any such agreement that will be terminated at or prior to the Closing)confidentiality agreements;
(iix) all partnership agreements and all other Contracts providing for the sharing of any agreement with any Affiliate profits of the Company (other than any such agreement that will be terminated at or prior to the Closing)Partnership;
(jx) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase power of attorney or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay moneyor grant of agency; and
(mxi) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required all Contracts that individually involve annual payments to or by from the Company Partnership or any of its Subsidiaries in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each 250,000.
(b) All Material Contract. With respect to each Material Contract: (i) such Material Contract is Contracts are legal, valid, binding and in full force and, to the Knowledge of the Partnership, assuming the due authorization, execution and delivery by any other party thereto, are currently enforceable against the CompanyPartnership and its Subsidiaries, as applicable, and, to the Knowledge of the CompanyPartnership, as of the other parties theretoClosing will be, if not previously terminated or expired in accordance with its their respective terms, except as enforcement may be limited by applicable 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 general applicability relating to or similar Law 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 rights Partnership. To the Knowledge of creditors generally; (ii) the Company is Partnership, there does not (with exist under any Material Contract any event of default or without the event or condition that, after notice or lapse of time or the giving of noticeboth, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a violation, breach or event of default by thereunder on the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any part of the Company’s securities Partnership or any of its Subsidiaries, except for such violations, breaches, defaults, events or conditions that would not have a Material Adverse Effect on the properties Partnership. No party has given written notice that it intends to terminate, cancel or assets of fail to renew or extend any Material Contract or to otherwise cease or materially reduce its business with the Company under any Partnership.
(c) Except for such Material Contract (other than Permitted Liens) nor Contracts that have been redacted or not provided due to competitive reasons, GrafTech has the Company given or received been supplied with a true and correct copy of each written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractor a written summary thereof.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists (a) Except as set forth in Section 3.12 of the following written contracts and other written agreements to which Company Disclosure Schedule, the Company is not a party (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);bound by:
(i) any agreement with any Affiliate for the purchase of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreementmaterials, plan or arrangement by which the Company is bound with regard to employmentsupplies, consulting goods, services, compensation, bonus, incentive, equity purchase equipment or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that assets providing for either (A) require future annual payments by the Company of less than $100,000, US$ 2,000,000 or more or (B) have a remaining term of less than one year and can be terminated aggregate payments by the Company upon of US$ 2,000,000 or more, in each case that cannot be terminated on not more than 60 days’ notice without payment by the Company of 60 days any material penalty;
(ii) any sales, distribution or less without material cost other similar agreement providing for the sale by the Company of materials, supplies, goods, services, equipment or penalty, other assets that provides for annual payments to the Company of US$ 2,000,000 or more;
(iii) any oral “at will” employment arrangementsmaterial partnership, joint venture, dealer, distribution or other similar agreement or arrangement;
(kiv) any agreement under which relating to the Company has advanced acquisition or loaned disposition of any amount to any employee material business (other than advances in the Ordinary Course whether by merger, sale of Businessstock, sale of assets or otherwise);
(lv) any settlementagreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, conciliation whether incurred, assumed, guaranteed or similar agreement entered secured by any Governmental Authority whereby asset), except any such agreement (A) with an aggregate outstanding principal amount not exceeding US$ 2,000,000; or (B) entered into subsequent to the date of this Agreement as permitted by Section 5.01;
(vi) any material agreement that limits the freedom of the Company is under an obligation to perform activities, refrain from activities and/or pay money; andcompete in any line of business or with any Person or in any area;
(mvii) any material agreement with Seller or any of its Affiliates or any director or officer of Seller or any of its Affiliates;
(viii) any contract or commitment relating to capital expenditures and involving future payments in excess of US$ 2,000,000 individually or US$ 2,000,000 in the aggregate;
(ix) any employment agreement with or offer letter to an employee or individual consultant, contractor, or salesperson of the Company, providing for annual payments of US$ 2,000,000 or more;
(x) any agreement or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xi) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company; or
(xii) any other agreement, commitment, arrangement or plan not made in the ordinary course of business that is material to the Company, taken as a whole.
(b) Each agreement, contract, plan, lease, license, instrument arrangement or commitment required to be disclosed pursuant to this Section is a valid and binding upon agreement of the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate in full force and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, andeffect, to the Knowledge of Seller, any other party thereto is in default or breach in any respect under the Companyterms of any such agreement, the other parties theretocontract, in accordance with its termsplan, lease, arrangement or commitment, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by for any such other party; (iii) the defaults or breaches which would not have a Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractAdverse Effect.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists Except for the following written contracts and other written agreements to which Employee Plans, neither the Company nor any Subsidiary is a party to or bound by any Contract of a type described below (collectivelysuch Contracts that are required to be listed on Schedule 3.8, each Lease listed in Schedule 3.9(b) and each of the NuVasive Settlement Agreement, the Cappuccino Agreements, the Ohio Spine Network Settlement Agreement and the Backbone Settlement Agreement, are herein referred to as the “Material Contracts”):
(a) any consulting agreement with the ten largest suppliers and the ten largest customers of or employment agreement that provides for annual compensation exceeding $100,000 per year or pursuant to which the Company has made payments exceeding $100,000 during the twelve (12) month period ending September 30, 2013 that cannot be terminated by dollar amountthe Company or such Subsidiary without penalty (including severance payment), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases any collective bargaining arrangement with any labor union or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableemployee organization;
(b) any agreement distributor, dealer or similar Contract under which the Company or its Subsidiaries has paid or has become obligated to pay in excess of $200,000 during calendar year 2013;
(or group of related agreementsc) any Contract for the lease acquisition of personal fixed assets in excess of $100,000 or for capital expenditures in excess of $100,000;
(d) any Contract for the purchase, maintenance or acquisition, or the sale or furnishing of materials, supplies, merchandise, equipment, parts or other property to or services by or from the Company or any Person providing for lease Subsidiary requiring payments (not including any payments that might be due after renewal of any such Contract) in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Businessyear, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments which Contract cannot be terminated by the Company of more or any Subsidiary (as applicable) without penalty on or less than $100,000.ninety (90) days notice;
(e) any agreement concerning a partnership Contract that restricts the right of the Company or joint ventureany Subsidiary to engage in any line of business or compete with any Person or otherwise to engage in operations anywhere in the world (including any Contract providing for non-solicitation or employees or other business relations, providing for exclusive or requirements supply terms or for “most favored nation” pricing or other terms);
(f) any agreement containing a covenant not Contract entered into within the five (5) years preceding the date of this Agreement relating to compete granted (i) the acquisition, control or disposition by the Company in favor of a third party that impairs the any line of business as currently conducted, or which expressly restricts the ability substantial portion of the Company to conduct business assets of any type Person, (ii) the acquisition by the Company of any Equity Securities of another Person or in any location(iii) the issuance of Equity Securities by the Company, excluding agreements for Stock Options and Warrants;
(g) any agreement Contract (i) relating to the licensing by Indebtedness, or (ii) pursuant to which the Company or any Subsidiary has loaned or advanced money to any Person, other than advances to employees for business expenses incurred in the ordinary course of Business business consistent with past practice or sales to customers on credit in the ordinary course of business consistent with past practices;
(h) any Contract granting any Person a Lien on all or any material portion of the assets of the Company or any Subsidiary, other than Permitted Liens and Liens which will be released at the Closing;
(i) any material Company Intellectual Property Rights Agreement (other than licenses of commercially generally available, offnon-the-shelf softwarecustomized computer software granted to the Company or a Subsidiary with an individual total replacement cost of less than $50,000);
(j) and any joint venture or partnership agreement;
(k) any Contract with any (i) Governmental Authority, (ii) Top Customer or (iii) Top Supplier;
(l) any consent order, decree or judgment, settlement or conciliation Contract entered into within the past five (5) years, other than settlement agreements that is do not provide for payments that have not been reflected on the Latest Balance Sheet and do not contain material to executory obligations on the business part of the Company;
(hm) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement Contract with any Affiliate of the Company (other than including, for the avoidance of doubt, with any such agreement that will be terminated at or prior of its Subsidiaries) with respect to the Closing);purchase of goods or the performance of services; or
(jn) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments Contract requiring indemnification by the Company or any of less than $100,000, (B) have a remaining term its Subsidiaries of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee another Person (other than advances standard indemnification obligations contained within Contracts entered into in the Ordinary Course ordinary course of Businessbusiness);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate a true and complete, in all material respects, complete copy of each Material Contract. With respect to each Material Contract: (i) such Each Material Contract is legalin full force and effect, valid, and represents a valid and binding and enforceable against obligation of the Company, Company or one of the Subsidiaries (as applicable) and, to the Knowledge Company’s actual knowledge, each counterparty thereto, enforceable against the Company or one of its Subsidiaries (as applicable) and, to the Company’s actual knowledge, the other parties thereto, each counterparty thereto in accordance with its terms, except as enforcement such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Law Laws affecting the rights enforcement of creditors rights generally; , and general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (ii) regardless of whether such enforceability is considered in a proceeding in Law or equity). There is no material default or breach of any Material Contract by the Company is not (with or without the lapse of time or the giving of noticeany Subsidiary, or both) in breach or default andas applicable, or, to the Knowledge of the Company’s actual knowledge, no by any other party to such Material Contract is in breach or default thereunderparty, and no event has occurred or circumstance exists that would constitute a breach or default by the Company has not received written (or, to the Company’s Knowledge, by any such other party; (iiioral) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any notice of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractforegoing.
Appears in 1 contract
Sources: Merger Agreement (Biomet Inc)
Material Contracts. (a) Section 3.17(a) of the Disclosure Schedule 5.13 lists each of the following written contracts and other written agreements to which of the Company is a party SGA Companies (such contracts and agreements, together with the Advisory Agreements and Fund Agreements, collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers as of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);date hereof:
(i) any agreement with any Affiliate of the Company (other than agreements listed in Section 3.09(d) of the Disclosure Schedule) pursuant to which any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the SGA Company is bound with regard obligated to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonusesor is entitled to receive, whether individually or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlementaggregate, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company aggregate amount in excess of $100,000 per annum (whether on a fixed and/or contingent basis);
(ii) any partnership, joint venture or similar agreement or arrangement to which any SGA Company is a party;
(iii) any agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(iv) each Lease;
(v) any agreement relating to Indebtedness, except any such agreements with an aggregate outstanding principal amount (taking all such agreements together) not exceeding $100,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty;
(vi) each IP License;
(vii) any agency, dealer, sales representative, distribution, marketing or other similar agreement with respect to the distribution or sale of shares, units or interests of a Fund;
(viii) any agreement that materially limits (or purports to materially limit) the ability of any SGA Company from engaging or competing in any line of business or with any Person (including any such agreement that requires or purports to require any SGA Company to conduct any type of business exclusively with another Person or group of Persons), or from soliciting for employment or hiring any Person, in any geographic area or during any period of time;
(ix) any agreement with any Governmental Authority, other than any Advisory Agreement or agreement relating to any Governmental Authority’s investment in any Fund;
(x) any Affiliate Contract, including any Advisory Agreement, Fund Agreement or Affiliate Contract to which any Related Client (other than any SGA Related Entity) is a party;
(xi) any custody, transfer agent, shareholder service, administrative, accounting and other similar agreements to which a Fund is a party, other than any Advisory Agreement;
(xii) any contract requiring any SGA Company (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product (including any contract requiring any additional or “follow-on” capital contributions to any Fund);
(xiii) any contract that contains (A) a “clawback” or similar undertaking requiring the contribution, reimbursement or refund by a SGA Related Entity or SGA Seller of any prior distribution, return of capital or fees (whether performance based or otherwise) paid to any such Person or (B) a “most favored nation” or similar provision;
(xiv) any contract (other than any Fund Agreement) that contains (A) key person provisions pertaining to employees of any SGA Related Entity or (B) any of the following rights provided to an investor with respect to a Client advised by a SGA Company: (1) special withdrawal or redemption rights, (2) designation rights regarding advisory boards or similar provisions or (3) special anti-dilution rights;
(xv) any placement agent agreement, or any other contract for the distribution or sale of shares, units or interests of a Fund;
(xvi) any side letter with any other Client; and
(xvii) any other agreement, commitment, arrangement or plan not made in the ordinary course of business that is material to the SGA Related Entities.
(b) As of the date hereof, (i) each Material Contract is valid and binding on the SGA Company that is party thereto and is not terminable by in full force and effect, except as would not, individually or in the aggregate, be material to the SGA Companies, taken as a whole and (ii) no SGA Company upon notice or, to the Knowledge of sixty days SGA, any other party thereto, is in default or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, breach in all any material respects, copy respect under the terms of each any such Material Contract, nor to the Knowledge of SGA, has any event occurred that, with notice or lapse of time or both, would constitute a material breach of any Material Contract by any SGA Company that is party thereto. With As of the Closing Date, after giving effect to the Transactions, and subject to receipt of any required consent and satisfaction of any notice requirement with respect to each Material Contract set forth on Section 3.04 and Section 3.05 of the Disclosure Schedule, and receipt of the applicable Client Consent applicable to such Material Contract: (i) such each Material Contract will be valid and binding on the SGA Company that is legal, valid, binding party thereto and enforceable against the Company, andwill be in full force and effect and (ii) no SGA Company or, to the Knowledge of the CompanySGA, the any other parties party thereto, will be in accordance with its termsdefault or breach in any material respect under the terms of any such Material Contract, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default andnor, to the Knowledge of the CompanySGA, no other party to such Material Contract is in breach will any event have occurred that, with notice or default thereunderlapse of time or both, and no event has occurred or circumstance exists that would constitute a material breach or default by the Company or, to the Company’s Knowledge, of any Material Contract by any such other party; (iii) the SGA Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractthereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Virtus Investment Partners, Inc.)
Material Contracts. Schedule 5.13 lists the following written contracts and other written agreements to which the Company is a party (collectively, the “Material Contracts”):
(a) any agreement with Section 3.17(a) of the ten largest suppliers and DC Contributors Disclosure Schedule lists each of the ten largest customers following Contracts of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage Company Subsidiaries as of consolidated gross purchases the date hereof:
(i) all Contracts with independent contractors or consolidated gross sales, as applicable, attributable to such supplier consultants involving the payment by the Company or customer, as applicablethe Company Subsidiaries of more than $5 million annually that are not cancelable without penalty or further payment and without more than ninety (90) days’ notice;
(bii) any agreement (employment, severance, change in control, consulting or group similar Contract requiring payment by the Company or any Company Subsidiary of related agreements) for the lease of personal property to or from any Person providing for lease payments a base annual compensation in excess of $100,000 per annum500,000;
(ciii) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) all Contracts for the purchase or sale of materials, supplies, products equipment or services (other personal propertythan purchase orders), or for the furnishing lease, sublease or receipt license of services;
real property (d) any agreementwhether as lessor, commitmentsublessor, lessee, sublessee, licensor, or outstanding purchase order relating licensee), involving payment by or to capital expenditures that involves total remaining payments by the Company or the Company Subsidiaries of more than $100,000.
10 million annually (e) any agreement concerning in the case of a partnership lease, sublease or joint venturelicense of real property, based on 2007 base rent);
(fiv) all Finance Agreements under which any Financial Services Company expects to receive revenue in excess of $25 million annually;
(v) all Contracts related to Securitization Transactions or Derivative Transactions that are material to the Industrial Business or the Financial Services Business;
(vi) all Contracts relating to Indebtedness, in each case having an outstanding principal amount in excess of $50 million, and all Contracts relating to Contingent Obligations, in each case having an amount in excess of $50 million;
(vii) all Contracts with any Governmental Authority involving total annual payments in excess of $10 million;
(viii) all material Company IP Agreements and all material Company IT Agreements;
(ix) any agreement Contract or Governmental Order containing (x) a covenant not to compete granted by the Company or (y) any other restriction, in favor of a third party each case that materially impairs the business as currently conducted, or which expressly restricts the ability of the Company, the Industrial Companies, the Financial Services Companies, or any Affiliates of the Company to conduct business of any type or engage in any locationline of business or to compete with any Person, other than joint venture agreements to the extent disclosed in Section 3.17(a) of the DC Contributors Disclosure Schedule;
(gx) any joint venture agreement, strategic alliance agreement, partnership agreement, limited liability company agreement, stockholders agreement or voting agreement or other similar co-ownership or joint management agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any other Person (iother than the Company or any Company Subsidiary) or relating to any ownership or equity interest of the licensing Company or any Company Subsidiary in any other Person (other than the Company or any Company Subsidiary), in each case that is (x) material to the Financial Services Business or the Industrial Business or (y) under which the Company reasonably expects the Company and the Company Subsidiaries to be required to make payments exceeding $10 million in the aggregate after the date of this Agreement;
(xi) any Affiliate Contract (or series of related Affiliate Contracts) (other than purchase orders) involving payment by or to the Company and the Company Subsidiaries of Business Intellectual Property Rights more than $10 million annually;
(xii) any Intercompany Contract (or series of related Intercompany Contracts) (other than licenses of commercially available, off-the-shelf softwarepurchase orders) and (ii) that is material involving payment by or to the business Financial Services Companies or the Industrial Companies of the Companymore than $10 million annually;
(hxiii) all Contracts (other than purchase orders) between (A) either of the DC Contributors or an Affiliate of either of the DC Contributors (other than the Company or any Company Subsidiary), on the one hand, and a Person that is not an Affiliate of either of the DC Contributors, on the other hand, of which the Company or a Company Subsidiary is a beneficiary for an amount in excess of $10 million annually, and (B) the Company or a Company Subsidiary, on the one hand, and a Person that is not an Affiliate of either of the DC Contributors, on the other hand, of which either of the DC Contributors or an Affiliate of either of the DC Contributors (other than the Company or any Company Subsidiary) is a beneficiary for an amount in excess of $10 million annually;
(xiv) any agreement (other Contract, or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness Contracts (other than Intercompany Obligationspurchase orders) that is or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will would be terminated at or prior required to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered filed by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties Industrial Companies and the Financial Services Companies with the SEC as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC), if such Person had securities registered under the Exchange Act;
(xv) any (A) reinsurance or retrocessional agreement, either ceded or assumed, with reinsurance balances of greater than $5 million, (B) managing general agency agreement, (C) insurance or reinsurance pooling agreement, including any agreement relating to an assigned risk pool, in each case to which the Insurance Subsidiary is a party, and (D) any material agreement of the Insurance Subsidiary with any insurance agent, broker or producer; and
(xvi) any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xv) of this Section 3.17.
(b) The DC Contributors have delivered to, or made available for inspection by, the Investor true, correct and complete copies of each Contract set forth in Section 3.17(a) of the DC Contributors Disclosure Schedule (or required by Section 3.17(a) to be set forth thereon) (all such Contracts required to be listed in Section 3.17(a) of the DC Contributors Disclosure Schedule, together with any such Contracts entered into after the date of this Agreement that would have been required to be listed in Section 3.17(a) of the DC Contributors Disclosure Schedule had such Contracts been entered into on or prior to the date of this Agreement, collectively, the “Company Contracts”).
(c) Except as set forth in Section 3.17(c) of the DC Contributors Disclosure Schedule, each Company Contract entered into on or prior to the date of the Agreement (i) is a valid and binding obligation of the Company or a Company Subsidiary that is a party thereto, enforceable against such Person in accordance with its terms, except as enforcement may be limited by subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar Law laws affecting creditors’ rights generally and subject to the rights effect of creditors generally; general principles of equity (regardless of whether considered in a proceeding at law or in equity), (ii) to the DC Contributors’ Knowledge, is a valid and binding obligation of each other party thereto, enforceable against each such other party in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity), (iii) is in full force and effect, and (iv) upon consummation of the transactions contemplated by this Agreement, except to the extent that any consents with respect to such Company Contract set forth in Section 3.04 of the DC Contributors Disclosure Schedule are not obtained, shall continue in full force and effect without material penalty or other materially adverse consequence.
(d) Except as set forth in Section 3.17(d) of the DC Contributors Disclosure Schedule and except as would not result in a Company Material Adverse Effect, each of the Company and the Company Subsidiaries that is a party to a Company Contract has in all material respects performed, or is now performing in all material respects, its obligations under such Company Contract, and has not and, to the DC Contributors’ Knowledge, none of the other parties thereto has, violated any provision of, or committed or failed to perform any action, and no event or condition exists, that would constitute a default under such Company Contract (and would not be with or without the lapse of time or the giving of noticenotice be in default), or both) in breach or default and, to the Knowledge of the Company, no and has not received from any other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by thereto any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material party’s intention to cancel, terminate or fail to renew any Company Contract.
Appears in 1 contract
Sources: Contribution Agreement (Daimler Ag)
Material Contracts. Schedule 5.13 lists (a) Except as set forth on Section 2.10(c) or 2.11(a) of the following written contracts and other written agreements to which Disclosure Schedules or the Contracts evidencing the Transferring Loans, the Company is not a party to any Contract of the type described below (collectivelyeach Contract set forth on Section 2.10(c) or 2.11(a) of the Disclosure Schedules, the a “Material ContractsContract”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior Contract relating to the Closing)creation, incurrence, assumption or guarantee of any Indebtedness;
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require Contract currently in effect requiring future payments by the Company any party thereto of less more than $100,000, (B) have a remaining term 100,000 in any period of less than one year and can be terminated 12 consecutive months or the performance of which is expected to involve expenditures by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount revenue to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable over the term of the Contract;
(iii) any Contract for the disposition of material assets;
(iv) any Contract for the acquisition of a business (through the acquisition of assets or otherwise) or any material interest in any business enterprise;
(v) any Contract limiting or restraining the Company from (A) engaging or competing in any lines of business with any Person or in any geographic area, (B) investing in any Person or (C) soliciting or hiring any individual for employment;
(vi) any Contract containing a “most-favored-nation” clause or similar term that provides preferential pricing or treatment;
(vii) any Contract containing any covenant limiting the ability of the Company to declare, set aside or pay any dividends or distributions (whether in cash, stock or other property);
(viii) any Contract under which a Consent in connection with the consummation of the Transaction or material obligations would become due or payable upon, or as a result of, the consummation of the Transactions;
(ix) any warranty, guaranty or similar undertaking with respect to contractual performance extended by the Company;
(x) any Contract currently in effect relating to a joint venture, partnership alliance or similar agreement;
(xi) any Contract obligating the Company upon notice to conduct any business that is material to the Company on an exclusive basis with any third party;
(xii) any Contract currently in effect under which the Company is the lessee of sixty days any real or less without substantial cost personal property owned by another party;
(xiii) any employment, consulting or penalty. The severance Contract;
(xiv) any Contract not otherwise covered by Sections 2.11(a) through 2.11(a)(xiii) (A) that is material to the Company or (B) pursuant to which the Company has made available material obligations to Buyer an accurate and complete, indemnify another Person; and
(xv) any agreement or understanding (whether oral or written) to enter into any Contract of the type described in all material respects, copy of each Material Contract. Sections 2.11(a)(i) through 2.11(a)(xiv).
(b) With respect to each Material Contract: (i) neither the Company nor, to Seller’s Knowledge, any other party is in breach or violation with respect to any material obligation to be performed under any such Material Contract and (ii) such Material Contract is legala valid and binding obligation of the Company and is in full force and effect, valid, binding and enforceable against the Company, Company and, to the Knowledge of the CompanySeller’s Knowledge, enforceable against the other party or parties thereto, in each case, in accordance with its termsthe terms thereof, (A) except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar and other laws affecting creditors’ rights generally and (B) except insofar as the availability of equitable remedies may be limited by applicable Law affecting (the rights preceding clauses (A) and (B) are referred to herein collectively as the “Enforceability Exceptions”). The Company has not received written notice of creditors generally; (iiany Default with respect to any Material Contract and to Seller’s Knowledge, no Default has been threatened. Except as set forth on Section 2.11(b) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the CompanyDisclosure Schedule, no other party to such Material Contract is in breach condition exists or default thereunder, and no event has occurred which constitutes a Default or circumstance exists that would constitute a breach or default non-performance by the Company or, to the CompanySeller’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it party under such any Material Contract; (iv) to the Company. To Seller’s Knowledge, no condition currently exists or event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, reasonably be expected to result in any payment becoming due under, or result in a Default of a Company Loan and no underlying negotiations are taking place as of the imposition date hereof regarding a restructuring of any Lien on any of the CompanyCompany Loans, provided that, for purposes of this sentence only, “Seller’s securities or any Knowledge” shall mean the actual knowledge of the properties or assets individuals set forth in the definition of the Company under any such “Knowledge” contained in this Agreement. Seller has delivered to Purchaser true, correct and complete copies of each Material Contract (other than Permitted Liens) nor has the Company given or received including all modifications, amendments, supplements, annexes and schedules thereto, written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractwaivers thereunder).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Resource Capital Corp.)
Material Contracts. Section 2.1(l) of the Disclosure Schedule 5.13 lists the following written contracts sets forth a list of all contracts, agreements and other written agreements instruments (the “Material Contract List”), as of the particular date or dates set forth within the Material Contract List, to which the Company Seller is a party (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each or which is binding on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property Seller relating to or from any Person providing for lease payments involving: (i) outstanding commitments to pay in excess of $100,000 per annum;
(c) except for 150,000 in any agreement entered into one calendar year or $250,000 in the Ordinary Course of Businessaggregate, any agreement (or group of related agreements) including contracts for the purchase or sale of suppliesassets and contracts with vendors or suppliers of goods or services meeting the foregoing dollar threshold, products or other personal property, or for the furnishing or receipt of services;
(dii) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts restriction on the ability of the Company Seller to conduct business of any type or engage in any location;
business or to do business in any geographic area, (giii) any joint venture or partnership agreement or similar arrangement, (iiv) relating any arrangement with any Stockholder, GMT, GMIL or any affiliate thereof or any officer or director of Seller or a member of such Person’s immediate family, (v) any contract or arrangement pursuant to which Seller will or expects to receive in excess of $150,000 in any one calendar year or $250,000 in the licensing by aggregate, including contracts with customers involving the provision of goods or services meeting the foregoing dollar threshold, (vi) any license referred to the Company of Business Intellectual Property Rights (in Section 2.1(k) other than licenses of commercially available, commercial off-the-shelf softwarelicenses, (vii) any lease referred to in Section 2.1(e), (viii) any guaranty or similar undertaking with respect to payment or performance by a third party, (ix) any power of attorney, (x) any contract, agreement or other instrument between a third party and any Related Persons of the Seller Parties that relates to the business of Seller, (iixi) any warranty made by Seller outside the ordinary course of its business with respect to their respective products and services, (xii) the incurrence of Indebtedness by Seller in excess of $150,000 in any one calendar year or $250,000 in the aggregate, (xiii) a termination fee or otherwise requiring payment in exchange for the right to terminate such agreement in excess of $150,000 (for any one contract, agreement or other instrument) or in excess of $250,000 for all such termination or similar fees in the aggregate, (xiv) contracts which grant exclusivity, which contain most-favored-pricing clauses or which otherwise restrict or limit the operation of the business of Seller, or (xv) any other contract, agreement or instrument that is material to Seller or necessary to the conduct of the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and Seller as currently conducted. Seller is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate in default, and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the CompanySeller Parties, no other party is in default under any such contract, agreement or instrument and all such contracts, agreements and instruments are in full force and effect and constitute legal, valid and binding obligations of the other parties thereto, thereto in accordance with its their terms, except as enforcement may be limited by subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Law other laws relating to or affecting the rights and remedies of creditors generally; (ii) the Company generally and to general principles of equity, regardless of whether enforcement is not (with sought in a proceeding at law or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractequity.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mine Safety Appliances Co)
Material Contracts. (a) Except as disclosed on Schedule 5.13 lists 6.16, the Seller is not a party or subject to any of the following written contracts and other written agreements with respect to which the Company is a party Business (collectively, the “"Material Contracts”"):
(ai) any agreement collective bargaining or other agreements with the ten largest suppliers and the ten largest customers of the Company (by dollar amount)labor unions, each on a consolidated basis for the fiscal year ended December 31trade unions, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases employee representatives, work committees, guilds or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableassociations representing Employees;
(bii) any agreement employment consulting, severance, termination or indemnification agreement, contract or arrangement, written or oral, with any current or former officer, consultant, director or employee which (or group of related agreementsx) provides for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 10,000 per annumannum or (y) requires aggregate payments over the life of such agreement, contract or arrangement in excess of $25,000 or which in any case is not terminable by the Seller or its subsidiaries on 30 days' notice or less without penalty or obligation to make payments related to or after such termination;
(ciii) except for any joint venture contract or arrangement or any other agreement entered into in the Ordinary Course which has involved or is expected to involve a sharing of Business, any agreement (revenues with other persons or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of servicesentities;
(div) any lease for real or personal property in which the amount of payments which the Seller is required to make, or is expected to receive, on an annual basis exceeds $10,000;
(v) any material agreement, contract, policy, License, document, instrument, arrangement or commitment which has not been terminated or performed in its entirety and which may be, by its terms, terminated, impaired or adversely affected by reason of the execution of this Agreement, the closing of the Acquisition, or the consummation of the other transactions contemplated hereby;
(vi) any agreement, commitmentcontract, policy, License, document, instrument, arrangement or outstanding purchase order relating commitment that materially limits the freedom of the Seller to capital expenditures that involves total remaining payments by compete in any line of business or with any person or entity or in any geographic area or which would so materially limit the Company freedom of more than $100,000.the Purchaser to conduct the Business after the Closing;
(evii) any agreement concerning or contract relating to any outstanding commitment for capital expenditures in excess of $10,000 individually or $25,000 in the aggregate, or any partially or fully executory agreement or contract relating to the acquisition or disposition of rights or assets having a partnership value of in excess of $10,000 individually or joint venture$25,000 in the aggregate;
(fviii) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conductedsale-leaseback, conditional sale, exclusive dealing, brokerage, finder's fee or which expressly restricts the ability of the Company to conduct business of any type take-or-pay contract or in any location;agreement; or
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(mix) any other agreement, contract, leasepolicy, licenseLicense, document, instrument arrangement or commitment binding upon which is material to the Company, in each case not included in clauses Seller; or
(ax) through (l) above, which has future required payments any other agreement or contract that relates to the provision of goods or by the Company services in excess of $100,000 per annum 1,000.
(b) As of the date hereof, each of the Material Contracts is in full force and effect and is not terminable by a valid and binding obligation of the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, Seller and, to the Knowledge knowledge of the CompanySeller, the other parties thereto. Except as set forth on Schedule 6.16, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company Seller is not (in default under any Material Contract in any material respect, nor does any condition exist that with notice or without the lapse of time or both would constitute a material default thereunder. To the giving of notice, or both) in breach or default and, to the Knowledge knowledge of the CompanySeller, no other party to such any Material Contract is in breach or material default thereunder. The Seller has no reason to believe that any of the Material Contracts that are renewable will not be renewed on reasonable terms, nor does the Seller know of any expressed desire or intent, on the part of any other party to any of the Material Contracts, to materially reduce or terminate the amount of its business with the Seller in the future. Except as set forth on Schedule 6.16, no consent is required of any party to any of the Material Contracts by virtue of the Acquisition, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or Acquisition will not result in the imposition termination of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 3.11(a) lists all Contracts relating directly to the following written contracts and other written agreements Company or the Business to which the Company or Seller is a party and which falls within any of the following categories (collectively, the each a “Material ContractsContract”):
): (ai) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement material Contracts not entered into in the Ordinary Course ordinary course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating business pursuant to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required annual payments to or by from the Company in excess of $100,000 per annum 50,000 are, or are reasonably anticipated to become, due and payable pursuant to the terms of such Contract; (ii) leases of real property (excluding the lease for the property located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇); (iii) Contracts relating to any outstanding commitment for capital expenditures in excess of $50,000; (iv) indentures, mortgages, promissory notes, loan agreements, guarantees, letter of credit or other agreements or instruments of Company or commitments for the borrowing or the lending by Company of amounts in excess of $50,000 or providing for the creation of any charge, security interest (excluding a security interest that is not terminable by a Purchase Money Security Interest), encumbrance or lien upon any of the Company upon notice assets of sixty days the Company; (v) any non-competition agreement or less without substantial cost any other agreement or penalty. The Company has made available obligation that purports to Buyer an accurate limit in any respect the manner in which, or the localities in which, the Business may be conducted; (vi) any Contract that would prohibit or materially delay the consummation of the Transactions; (vii) any Contract with any Affiliate; (viii) any contract with a customer of the Business with revenues of greater than $300,000 over the twelve month period immediately preceding the date hereof or anticipated in the twelve month period following the date hereof; and complete(ix) any contract with a supplier to the Business with expenses payable of greater than $150,000 over the twelve months period immediately preceding the date hereof or anticipated in the twelve month period following the date hereof.
(b) Except as set forth in Schedule 3.11(b), each of the Material Contracts were entered into in all material respects, copy a bona fide transaction in the ordinary course of each Material Contract. With respect to each Material Contract: (i) such Material Contract business and is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, upon Company or Seller and in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company full force and effect and there is not under any Material Contract: (with or without the lapse of time or the giving of notice, or bothA) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a any existing uncured material breach or default by the Company or Seller or, to the CompanySeller’s Knowledge, by any such other party; party thereto, or (iiiB) the any event which, after notice or lapse of time or both, would constitute a material default by Seller or Company has performed all material obligations previously required or, to be performed by it under such Material Contract; (iv) to the CompanySeller’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of by any obligation or loss of any benefit under, result in any payment becoming due underother party, or result in the imposition a right to accelerate or terminate or result in a loss of any Lien on any material rights of Company or Seller.
(c) Except as provided in Schedule 3.11(c), (i) there is no Contract (not to compete or otherwise), commitment, judgment, injunction, order or decree to which Company is a party or otherwise binding upon Company which has or may have the Company’s securities effect of prohibiting the Transactions or any of impairing the properties or material assets of the Company under or the value thereof in any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; material respect and (vii) Company has not entered into any Contract that materially restricts the other party providing of services related to the Material Contract has not repudiated Business or otherwise materially restricts the conduct of the Business.
(d) Except as set forth on Schedule 3.11(d), neither this Agreement nor the Transactions contemplated by this Agreement, including the assignment to Seller, by operation of law or otherwise, of any Contracts, will result, under the terms of any Contract, in writing (i) Buyer or Company granting to any portion third party any right to or with respect to any Intellectual Property owned by, or licensed to, Buyer or Company, (ii) Buyer or Company being bound by, or subject to, any non-compete or other restriction on the operation or scope of such Material Contractthe Business, or (iii) Buyer or Company being obligated to pay any royalties or other amounts, that individually or in the aggregate would be material, to any third party in excess of those payable by Seller upon Closing.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13 4.11 lists all of the following written contracts and other written agreements Contracts to which the Company is a party as of the date hereof:
(i) any Contract related to Indebtedness;
(ii) any joint venture, partnership or other arrangement involving a sharing of profits involving the Company, other than the LLC Agreement;
(iii) any Contract for the acquisition, sale or lease of properties or assets with a value in excess of $1 million other than sales of properties or inventories in the Ordinary Course of Business;
(iv) any Contract (A) restricting any right of the Company to compete with any Person or in any line of business or geographic area or during any period of time or (B) restricting any right of the Company to sell to or purchase from any Person, or that grants the other Person “most favored nation” status or exclusivity, other than the Legacy Affiliate Agreements;
(v) any Contract or group of related Contracts for capital expenditures in excess of $1 million for any single project or related series of projects;
(vi) any Contract with any customer or advertiser under which the Company received revenues in excess of $1 million during the last year;
(vii) any services Contract involving payments by the Company in excess of $1 million during the last year;
(viii) any Contract which evidences a “trade” or “barter” transaction in which the Company would receive goods or services from the customer or vendor in exchange for furnishing goods or services after the date of this Agreement;
(ix) any Contract providing for material indemnification rights or obligations to or from any Person (excluding indemnities contained in agreements for the purchase, sale or license of products or services entered into in the Ordinary Course of Business), other than the LLC Agreement;
(x) other than the Legacy Affiliate Agreement and the LLC Agreement, any Contract with any Seller or any Affiliate of any Seller or any director or officer of the Company;
(xi) all Legacy Affiliation Agreements (other than Legacy Affiliation Agreements between the Company and Purchaser or any of its Newspaper Affiliates) and similar affiliation Contracts for the sale of the Company’s products and services with any Person that is not an Affiliate of Purchaser or any Seller;
(xii) any Contract with any Governmental Entity;
(xiii) any Contract with employees of or consultants to the Company that involves a commitment for annual consideration with a value in excess of $250,000 that cannot be terminated by the Company without liability upon prior notice of 30 days or less;
(xiv) any other Contract that involves annual commitments in excess of $1 million that cannot be terminated by the Company without penalty upon prior notice of 30 days or less.
(b) As of the date hereof, each of the Leases and Contracts listed or required to be listed on Schedules 4.11, 4.12, 4.13(e)(1) or 4.13(e)(2) (collectively, the “Material Contracts”):
(a) any agreement with the ten largest suppliers constitutes a valid and the ten largest customers binding obligation of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at Law)), and is in full force and effect, except where the rights failure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to be material to the Business or the Company. To the Knowledge of creditors generally; (ii) the Company is not (Company, as of the date hereof, no event has occurred and no condition or state of facts exists which, with or without the lapse passage of time or the giving of notice, notice or both) , would constitute any default or breach by the Company or any other party thereto, except for such breaches, defaults, events or conditions that would not, individually or in breach or default andthe aggregate, reasonably be expected to be material to the Knowledge Business or the Company. Complete and correct copies of each of the Material Contracts have heretofore been delivered to Purchaser.
(c) There are no outstanding powers of attorney executed on behalf of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute .
(d) Schedule 4.11(d) sets forth (i) a breach or default by the Company or, list of each Seller’s 20 largest advertising customers with respect to the Company’s KnowledgeBusiness and (ii) all “major accounts” or “national accounts” of c▇▇▇.▇▇▇ as provided under the Legacy Affiliate Agreements, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any each case as of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contractdate hereof.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists 5.17 is a true, correct and complete list of the following written contracts and other written agreements to which the Company is a party Contracts (collectively, the “Material Contracts”):) to which Seller is a party:
(a) any agreement with Contract (or group of related Contracts) that involves a commitment by Seller in excess of $25,000 per annum or under which Seller could receive in excess of $25,000 per annum, in each case which has a term in excess of one year and is not terminable at the ten largest suppliers and the ten largest customers option of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicableSeller upon no more than 30 days notice;
(b) any agreement Contract concerning a partnership or joint venture or investment in or loan to any Person;
(c) any Contract (or group of related agreementsContracts) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Businessunder which it has created, any agreement (or group of related agreements) for the purchase or sale of suppliesincurred, products or other personal propertyassumed, or guaranteed any indebtedness for the furnishing borrowed money, or receipt of servicesany capitalized lease obligation;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) Contract under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company Seller has advanced or loaned any amount to any employee of its current or former directors, officers, or employees;
(e) any Contract under which Seller has advanced or loaned any amount to any other than advances Person;
(f) any Contract under which Seller agreed to limit its ability to compete in any line of business, to conduct business in any location, to solicit or conduct business with any Person, or to hire any individual or group of individuals;
(g) any Contract obligating Seller to maintain the Ordinary Course confidentiality of Business)another Person’s information;
(h) any Contract binding another Person to maintain the confidentiality of Seller’s information, including, without limitation, any confidentiality agreements entered into by other Persons who expressed interest in acquiring Seller and were provided confidential information for review;
(i) any Contract for the employment or independent contractor status of any individual on a full-time, part-time, consulting, or other basis;
(j) any Contract providing for the acquisition or disposition of assets of Seller in excess of $25,000;
(k) any Contract providing for rebates or other contingent payments by Seller in excess of $25,000;
(l) any settlementContract containing material indemnification obligations of Seller to any Person, conciliation or similar agreement entered by any Governmental Authority whereby other than standard product warranties issued to customers in the Company is under an obligation to perform activities, refrain from activities and/or pay moneyordinary course of business; and
(m) any other agreementContract, contractamendment, leaseor supplement that individually or in the aggregate, license, instrument amounts to a material change to the terms of payment or commitment binding upon the Company, in each case not included in clauses payment practices with respect to existing Contracts relating to a non-de minimis portion (aby dollar value or number of customers or number of suppliers) through (l) above, which has future required payments to of Seller’s accounts receivable or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contractaccounts payable. With respect to each such Material Contract that is an Assumed Contract: (iA) such Material Contract is in full force and effect and is legal, valid, binding on, and enforceable in all material respects against Seller, and to the CompanyKnowledge of Seller, andall other parties thereto; and (B) neither Seller, nor, to the Knowledge of the CompanySeller, the any other parties party thereto, is in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in material breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunderContract, and no event has occurred that with notice or circumstance exists that lapse of time would constitute a material breach or default by the Company orof such Material Contract, to the Company’s Knowledgeor permit termination, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it modification, or acceleration under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification . Schedule 5.17 includes a description of any obligation consents or loss approvals required of third parties under the terms of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractContracts for the consummation of the transactions contemplated by this Agreement. A true, correct, and complete copy of each written, and a description of each oral, Material Contract that is an Assumed Contract so listed has been delivered to Purchaser or its counsel.
Appears in 1 contract
Material Contracts. Schedule 5.13 lists the following written contracts and other written agreements to which (a) To Sellers' Knowledge, the Company is a party (collectively, the “Material Contracts”):not bound by:
(ai) any lease (whether of real or personal property) providing for annual rentals of one hundred thousand dollars ($100,000) or more;
(ii) any sales, distribution or other similar agreement providing for the sale by the Company of materials, supplies, goods, services, equipment or other assets of one hundred thousand dollars ($100,000) or more or which extend beyond one year or both;
(iii) any agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of materials, supplies, products goods, services, equipment or other personal property, or assets that provides for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining annual payments by the Company of more than one hundred thousand dollars ($100,000.) or more or which extend beyond one year or both;
(eiv) any partnership, joint venture or other similar agreement or arrangement;
(v) any agreement concerning a partnership relating to the acquisition or joint venturedisposition of all or any part of the Business (whether by merger, sale of stock, sale of assets or otherwise), other than for sales of product in the ordinary course of business;
(fvi) any agreement containing a covenant not to compete granted by that limits the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability freedom of the Company to conduct compete in any line of business of or with any type Person or in any locationarea or which would so limit the freedom of the Company after the Closing Date;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(ivii) any agreement with any Affiliate present director or officer of the Company (or any immediate family member of such person other than any such agreement that will be terminated at as set forth in the Company's certificate of incorporation or prior to the Closing)bylaws;
(jviii) any agreementloans, plan or arrangement by which the Company is bound with regard to employmentcredits, consulting servicesfinancing agreements, compensation, bonus, incentive, equity purchase promissory notes or other equity-based compensation or rightevidences of indebtedness, severance payincluding all agreements for any commitments for future loans, retention bonusescredit, or success feesfinancing, other than in the ordinary course of business;
(iix) guarantees, other than in the ordinary course of business;
(x) any Employee Benefit Plan set forth written employment agreement other than the employment agreements listed on Schedule 5.13, 3.11; or
(iixi) any agreements entered into with the intention that either the performance of such agreements would result in a loss to the Company.
(Ab) require future payments by Each agreement, commitment, arrangement or plan disclosed in any Disclosure Schedule or required to be disclosed pursuant to this Section is a valid and binding agreement of the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate in full force and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against the Companyeffect, and, to Sellers' Knowledge, neither the Knowledge Company nor any other party thereto is in default or breach in any material respect under the terms of any such agreement, commitment, arrangement or plan.
(c) Sellers have delivered to Buyer true and correct copies of each of the agreements listed on Schedule 3.11.
(d) The Asset Purchase Agreement dated as of September 29, 1995 between Pacific Western Extruded Plastics Company, a Washington corporation, ▇▇▇▇▇▇▇ Investment Company, a Washington company, the Company f/k/a MCA Acquiring Company and MCA (the "Acquisition Agreement") is the only agreement between MCA and the Company on the one hand and ▇▇▇▇▇▇▇ Investment Company, on the other parties theretohand, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, relating to the Knowledge subject matter of the Company, no other party to such Material Contract is in breach or default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract Article 7 thereof. The Acquisition Agreement has not repudiated in writing any portion of such Material Contractbeen amended, altered, repealed or superceded.
Appears in 1 contract
Sources: Stock Purchase Agreement (Eagle Pacific Industries Inc/Mn)
Material Contracts. Section 3.2(q) of the Disclosure Schedule 5.13 lists all of the following written contracts contracts, letters of intent, term sheets, arrangements and other agreements (written agreements or oral) to which any of the Company Target Entities is a party or by which it is bound (collectively, the “Material Contracts”):
(ai) any Carrier Agreement;
(ii) any Customer Agreement;
(iii) any Publisher Agreement;
(iv) any Advertising Agreement;
(v) any White Label License Agreement;
(vi) any Foreign Partnership Agreement;
(vii) any agreement or license with Google™, Yahoo™ and MSN™;
(viii) any agreement with the ten largest suppliers and the ten largest customers any Person who serves as an independent contractor or consultant to any of the Company Target Entities (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 or similar arrangements) that is not cancelable without penalty or further payment and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicablewithout more than 30 days’ notice;
(bix) any agreement concerning the assignment or license of any Intellectual Property Right;
(x) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 5,000 per annum;
(cxi) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, or involve consideration valued in excess of $5,000;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(exii) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(hxiii) any agreement (or group of related agreements) under which the Company it has created, incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) indebtedness for borrowed money, or any agreement evidencing capitalized lease obligation, or under which the Company it has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing)intangible;
(ixiv) any agreement concerning confidentiality, non-competition or non-solicitation;
(xv) any agreement with any Affiliate Seller and any of the Company their respective Affiliates (other than any such agreement that will be terminated at or prior to of the ClosingTarget Entities);
(jxvi) any agreementprofit sharing, option, unit purchase, unit appreciation, deferred compensation, severance or other termination pay, or other plan or arrangement by which for the Company is bound with regard to employmentbenefit of its current or former directors, consulting servicesofficers, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangementsemployees;
(kxvii) any collective bargaining agreement;
(xviii) any agreement for the employment of any individual on a full-time, part-time, consulting or other basis or providing severance benefits or other termination pay;
(xix) any agreement with any director, officer or stockholder of any of the Target Entities or any of their Affiliates;
(xx) any agreement under which the Company it has advanced or loaned any amount to any employee of its directors, officers, stockholders, employees or any other Person;
(other than advances in xxi) any agreement under which the Ordinary Course consequences of Businessa default or termination could have a Material Adverse Effect;
(xxii) any agreement under which it has granted any Person any registration rights (including demand and piggyback registration rights);
(lxxiii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Most Recent Fiscal Month End of consideration in excess of $5,000, or imposition of monitoring or reporting obligations to any Governmental Authority;
(xxiv) any agreement entered for the sale or other disposition of any material assets, properties or rights of any of the Target Entities or any other sale of any of the Target Entities in whole or in part;
(xxv) any agreement containing any warranty by any Governmental Authority whereby of the Company is under an obligation Target Entities to perform activitiesany other Person with respect to any product or service offered by any of the Target Entities;
(xxvi) any agreement containing provisions providing for indemnification by any of the Target Entities, refrain other than indemnification obligations arising from activities and/or pay moneypurchase or sale agreements entered into; and
(mxxvii) any other agreement, contract, lease, license, instrument agreement (or commitment binding upon group of related agreements) with the Company, same party the consideration under which involves payments or obligations valued (individually or in each case not included in clauses (athe aggregate) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty5,000. The Company has made available Sellers have delivered to Buyer an accurate a correct and complete, in all material respects, complete copy of each written Material Contract (as amended to date) and a written summary setting forth the terms and conditions of each oral Material Contract. With respect to each Material Contract: (iA) such Material Contract the agreement is legal, valid, binding binding, enforceable and in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable against and in full force and effect on identical terms following the Company, and, to the Knowledge consummation of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights of creditors generallytransactions contemplated hereby; (iiC) the Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such Material Contract is in breach or default thereunderdefault, and no event has occurred that with notice or circumstance exists that lapse of time would constitute a breach or default by the Company ordefault, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, modification or acceleration, suspension under the agreement; (D) no party has repudiated any such agreement or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on provision thereof; and (E) there is no dispute Known to any of the Company’s securities Target Entities or Sellers regarding the scope of or performance under such agreement, including with respect to any payments to be made or received by any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractTarget Entities thereunder.
Appears in 1 contract
Material Contracts. Schedule 5.13 (a) Section 2.13(a) of the Disclosure Schedules lists each of the following written contracts and other written agreements Contracts (x) by which any of the Interests are bound or affected, or (y) to which Seller or the Company is a party are bound in connection with the business of the Company (collectively, collectively the “Material Contracts”):
(ai) All Contracts involving aggregate consideration in excess of $10,000;
(ii) All Contracts where such provisions restrict the development, manufacture, marketing or distribution of the Company’s products or services;
(iii) All Contracts where such provisions restrict the Company from carrying on any agreement with line of business or carrying on any business in any geographic location;
(iv) All Contracts where such provisions contain any fees or payments to any Person (including any broker, investment bank or other finder) relating to any financing (public or private) or the ten largest suppliers and sale of the ten largest customers enterprise value of the Company (through merger, consolidation, asset transfer, equity transfer, license or otherwise);
(v) All Contracts that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by dollar amountmerger, sale of stock, sale of assets or otherwise);
(vi) All Contracts relating to Indebtedness (including, each without limitation, guarantees);
(vii) All Contracts between or among the Seller on a consolidated basis for the fiscal year ended December 31one hand, 2010 and setting forth any Affiliate of Seller on the approximate dollar amount and the approximate percentage of consolidated gross purchases other hand;
(viii) All collective bargaining agreements or consolidated gross salesContracts with any labor organization, as applicable, attributable to such supplier union or customer, as applicableassociation;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: , (i) such Material Contract is legal, valid, binding and binding, enforceable against the Company, and, to the Knowledge of the Company, the other parties thereto, in accordance with its termsterms and in full force and effect and will continue to be legal, except as enforcement may be limited valid, binding, enforceable by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law affecting the rights Company and in full force and effect on identical terms following the consummation of creditors generallythe transactions contemplated hereby; (ii) the Company is and the other parties to such Material Contract are not in material breach of such Material Contract; and (iii) no party has actually repudiated or has provided notice or received any notice of any intention to terminate such Material Contract. No event or circumstance has occurred that, with notice or without the lapse of time or the giving both, would constitute an event of notice, or both) in breach or default and, to the Knowledge of the Company, no other party to such under any Material Contract is or result in breach a termination thereof or default thereunder, and no event has occurred would cause or circumstance exists that would constitute a breach permit the acceleration or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification changes of any right or obligation or the loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material Contract.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Cleanspark, Inc.)
Material Contracts. (a) Schedule 5.13 lists 4.13(a) sets forth all of the following written contracts and other written agreements Contracts to which the Seller (with respect to the Business) or any member of the Company Group is a party party, or by which any of the assets of any Seller (with respect to the Business) or any member of the Company Group are bound, as of the Execution Date (collectively, the “Material Contracts”):
(ai) Contracts providing that the Seller (with respect to the Business) or any agreement with the ten largest suppliers and the ten largest customers member of the Company (by dollar amount), each on a consolidated basis for Group shall not compete in any line of business or geographic area or that will restrict the fiscal year ended December 31, 2010 and setting forth ability of the approximate dollar amount and Purchaser or any Affiliate of the approximate percentage Purchaser to compete in any line of consolidated gross purchases business or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicablegeographic area after the Closing Date;
(bii) Contracts between the Seller or any of its Affiliates (other than members of the Company Group), on the one hand, and any member of the Company Group, on the other, in each case that will remain in effect following the Closing Date;
(iii) any agreement bonus or any other incentive compensation, deferred compensation, severance, salary continuation, pension, profit sharing or retirement Contract or plan, or any other employee benefit plan or arrangement relating to persons employed by the Seller or any of its Affiliates in connection with the Business under which Purchaser or any member of the Company Group may have any Liability, in each case that is not listed on Schedule 4.14(a);
(or group iv) Contracts relating to the incurrence of related agreements) indebtedness for the lease of personal property to or from any Person providing for lease payments borrowed money in excess of $100,000 per annum;
(c) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conducted, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) relating to the licensing by or to the Company of Business Intellectual Property Rights 5,000,000 (other than licenses of commercially available, offinter-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement company transactions with Affiliates that will be terminated settled at or prior to the ClosingClosing and indebtedness of the Funds);
(iv) Contracts which require the expenditure of more than $5,000,000 in the aggregate in any agreement with future 12-consecutive-month period that are not terminable on notice of 90 days or less without further liability;
(vi) Contracts pertaining to the licensing of Intellectual Property Rights or information technology systems used or otherwise exploited in the ordinary course of the business of any Affiliate member of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success feesGroup, other than software licenses entered into on standard terms involving commercially available software involving fees and payments of less than $150,000 over the course of twelve- consecutive months; and
(ivii) any Employee Benefit Plan labor or collective bargaining agreements.
(b) Except as has not had and would not have a Material Adverse Effect, each Material Contract and each other Contract required to be set forth on Schedule 5.13, (ii4.13(a) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year is in full force and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company in excess of $100,000 per annum effect and is not terminable by the Company upon notice of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding and enforceable against in accordance with its terms. Except as has not had and would not have a Material Adverse Effect, neither the Company, andSeller nor any member of the Company Group nor, to the Knowledge of the Company, the any other parties party thereto, is in default under the terms of any Material Contract, and the carrying out and completion of the transactions contemplated by this Agreement will not cause a breach of or default under any Material Contract, or result in the acceleration of any obligation, the loss or restriction of rights, or the requirement to pay additional fees or penalties, under any Material Contract.
(c) Each contract under which any member of the Company Group serves as an investment adviser or sub-adviser (each an “Advisory Contract”) is valid and effective in accordance with its respective terms, except as enforcement may be limited by applicable bankruptcyand there is not, insolvencyunder any such Advisory Contract, reorganizationan existing material breach or event which, moratorium with the giving of notice or similar Law affecting the rights of creditors generally; (ii) the Company is not (with or without the lapse of time or the giving of noticeboth, or both) in breach or default and, to the Knowledge would become such a breach. As of the CompanyBase Date, no other party to such Material Contract is in breach or default thereunder(i) the Total Base Aggregate NB Revenue Run-Rate was $898,000,000, as indicated on Schedule 1.1(b), and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iiiii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s KnowledgeBase Aggregate Fixed Income Revenue Run-Rate was $129,000,000, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien as indicated on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor has the Company given or received written notice alleging the same; and (v) the other party to the Material Contract has not repudiated in writing any portion of such Material ContractSchedule 1.1(a).
Appears in 1 contract
Sources: Purchase Agreement
Material Contracts. Schedule 5.13 (a) Section 3.12(a) of the Disclosure Schedules lists each of the following written contracts and other written agreements to which of the Company is a party with respect to the Business as of the date of this Agreement (together with all Leases listed in Section 3.13(b) of the Disclosure Schedules, collectively, the “Material Contracts”):
(ai) any each agreement with the ten largest suppliers and the ten largest customers of the Company (by dollar amount), each on a consolidated basis for the fiscal year ended December 31, 2010 and setting forth the approximate dollar amount and the approximate percentage of consolidated gross purchases or consolidated gross sales, as applicable, attributable to such supplier or customer, as applicable;
(b) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments involving aggregate consideration in excess of $100,000 per annum500,000 or requiring performance by any party more than one year from the date of this Agreement, which, in each case, cannot be cancelled by the Company without penalty or without more than ninety (90) days’ notice;
(cii) all agreements that relate to the sale of any of the Company’s assets, other than in the ordinary course of business, for consideration in excess of $500,000;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of $500,000;
(iv) except for any agreement entered into in the Ordinary Course of Business, any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services;
(d) any agreement, commitment, or outstanding purchase order agreements relating to capital expenditures that involves total remaining payments by the Company of more than $100,000.
(e) any agreement concerning a partnership or joint venture;
(f) any agreement containing a covenant not to compete granted by the Company in favor of a third party that impairs the business as currently conductedtrade receivables, or which expressly restricts the ability of the Company to conduct business of any type or in any location;
(g) any agreement (i) all agreements relating to the licensing by or to the Company indebtedness (including, without limitation, guarantees) of Business Intellectual Property Rights (other than licenses of commercially available, off-the-shelf software) and (ii) that is material to the business of the Company;
(h) any agreement (or group of related agreements) under which the Company has incurred, assumed or guaranteed any Indebtedness (other than Intercompany Obligations) or any agreement evidencing or under which the Company has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible (other than any such agreement that will be terminated at or prior to the Closing);
(i) any agreement with any Affiliate of the Company (other than any such agreement that will be terminated at or prior to the Closing);
(j) any agreement, plan or arrangement by which the Company is bound with regard to employment, consulting services, compensation, bonus, incentive, equity purchase or other equity-based compensation or right, severance pay, retention bonuses, or success fees, other than (i) any Employee Benefit Plan set forth on Schedule 5.13, (ii) any agreements that either (A) require future payments by the Company of less than $100,000, (B) have a remaining term of less than one year and can be terminated by the Company upon notice of 60 days or less without material cost or penalty, or (iii) any oral “at will” employment arrangements;
(k) any agreement under which the Company has advanced or loaned any amount to any employee (other than advances in the Ordinary Course of Business);
(l) any settlement, conciliation or similar agreement entered by any Governmental Authority whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money; and
(m) any other agreement, contract, lease, license, instrument or commitment binding upon the Company, in each case not included in clauses (a) through (l) above, which has future required payments to or by the Company having an outstanding principal amount in excess of $100,000 per annum and is not terminable by 500,000;
(v) all collective bargaining agreements or agreements with any labor organization, union or association to which the Company upon notice is a party; and
(vi) the agreements listed in Section 3.15(d)(i) of sixty days or less without substantial cost or penalty. The Company has made available to Buyer an accurate and complete, in all material respects, copy of each Material Contract. With respect to each Material Contract: the Disclosure Schedules.
(ib) such Each Material Contract is legal, valid, valid and binding on the Company and enforceable against the Company, each of its Subsidiaries party thereto and, to the Knowledge of the CompanySeller, the each other parties party thereto, and is in full force and effect and enforceable in accordance with its respective terms, except as enforcement such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Law Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), except (i) to the rights of creditors generally; extent that any Material Contract expires in accordance with its terms, and (ii) for such failures to be valid and binding or to be in full force and effect that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries, or to the Knowledge of Seller, any other party, is not in violation or breach of or in default (with or without nor does there exist any condition which upon the lapse passage of time or the giving of noticenotice would result in a violation or breach of, or bothconstitute a default under, or give rise to any right of termination, amendment, cancellation, acceleration or loss of benefits, or result in the creation of any Lien upon any of the properties, rights or assets of the Company or any of its Subsidiaries) in breach under any Material Contract to which it is a party or default andby which it or any of its properties, rights or assets is bound, and (ii) no other party to any such Material Contract has, to the Knowledge of Seller, alleged that the Company, no other party to such Material Contract Company or any Subsidiary is in violation or breach of, or in default thereunder, and no event has occurred or circumstance exists that would constitute a breach or default by the Company or, to the Company’s Knowledge, by any such other party; (iii) the Company has performed all material obligations previously required to be performed by it under such Material Contract; (iv) to the Company’s Knowledge, no event has occurred or circumstance exists that would permit termination, cancellation, acceleration, suspension or adverse modification of any obligation or loss of any benefit under, result in any payment becoming due under, or result in the imposition of any Lien on any of the Company’s securities or any of the properties or assets of the Company under any such Material Contract (other than Permitted Liens) nor or has notified the Company given or received written notice alleging the same; and (v) the other party any Subsidiary of an intention to the Material Contract has modify any material terms of, or not repudiated in writing to renew, any portion of such Material Contract.
Appears in 1 contract