Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives. (ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include: (A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom; (B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty; (C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty; (D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof); (E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities; (F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder; (G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person; (H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and (I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit. (iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to: (A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or (B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary. (iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Western Gas Partners LP)
Material Contracts. (a) Except for (x) this Agreement and (y) any Employee Plans, Section 4.21 of the Company Disclosure Letter contains a complete and correct list, as of the date of this Agreement, of each Contract described below in this Section 4.21 under which the Company or any of its Subsidiaries is a party and bound by, in each case, as of the date of this Agreement (each, a “Material Contract”):
(i) Company Disclosure Schedule 3.1(p)(iany Contract that (A) contains a list provision that materially limits, curtails or restricts the ability of all Material the Company or any of its Subsidiaries to compete or conduct activities in any geographic area or line of business with any Person or (B) includes any “most favored nation”, exclusive marketing, right of first refusal, first offer or first negotiation or other material exclusive rights of any type or scope, in each case, that is granted by the Company or any of its Subsidiaries to a Third Party (other than any such Contract which is terminable by the Company or any of its Subsidiaries on 30 days or less notice without any required material payment or other material conditions, other than the condition of notice);
(ii) any Contract providing for indemnification of any officer, director or employee by the Company or its Subsidiaries with respect to service in such capacities, other than Contracts entered into on substantially the same form as the Company’s standard forms made available to Parent;
(iii) each acquisition, minority investment, divestiture or disposition Contract providing for the acquisition, divestiture, disposition of, or minority investment in, a business or material assets or exclusive licensing agreement that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations), that would reasonably be expected to result in the Company or any of its Subsidiaries’ receipt or making of future payments in excess of $1,000,000;
(iv) any Collective Bargaining Agreement;
(v) any Contract under which (A) the Company or any of its Subsidiaries is granted any material license, sublicense, right, consent, or subscription (including a covenant not to be sued) with respect to any Intellectual Property of a Third Party (excluding (1) licenses for off-the-shelf computer software or software-as-a-service that are generally available to the Company or any of its Subsidiaries on commercial terms for a total cost of less than $250,000, (2) licenses for Open Source Software, (3) Contracts where any license of any Intellectual Property is incidental to the purpose of such Contract, such as defined licenses to use feedback and suggestions and licenses authorizing the use of brand materials for marketing purposes, (4) Contracts with employees, contractors, and consultants entered into in the ordinary course of business, substantially in the form of the Company’s or any of its Subsidiaries’ forms of employee confidentiality and invention assignment agreement and contractor agreement, copies of which have been made available to Parent, and (5) nondisclosure agreements entered into in the ordinary course of business), or (B) any Third Party is granted any material license, sublicense, right, consent or subscription (including a covenant not to be sued) by the Company or any of its Subsidiaries with respect to any Company Owned IP (excluding (1) Contracts with customers entered into in the ordinary course of business, substantially in the form of the Company’s or any of its Subsidiaries’ form of customer agreement, copies of which have been made available to Parent, (2) non-exclusive licenses granted to service providers in the ordinary course of business for the sole purpose of providing services to the Company or any of its Subsidiaries, (3) Contracts where any license of any Intellectual Property is incidental to the purpose of such Contract, such as licenses to use feedback and suggestions and licenses authorizing the use of brand materials for marketing purposes, (4) Contracts with employees, contractors, and consultants entered into in the ordinary course of business, substantially in the form of the Company’s forms of employee confidentiality and invention assignment agreement and contractor agreement, copies of which have been made available to Parent, and (5) nondisclosure agreements entered into in the ordinary course of business);
(vi) any Contract providing for contributions of capital or any guaranty in an amount that is material to the Company and its Subsidiaries, taken as a whole (excluding (A) contributions made to the Company by its Subsidiaries and (B) any guaranty of performance entered into in the ordinary course of business consistent with past practice);
(vii) any Contract with any Governmental Authority that is material to the conduct of the business of the Company and its Subsidiaries, taken as a whole;
(viii) each Contract entered into in connection with the settlement or other resolution of any action or proceeding (A) under which the Company or any of its Subsidiaries have any continuing obligations, liabilities or restrictions that are material to the Company and its Subsidiaries, taken as a whole, or (B) that involved or would reasonably be expected to involve payment by the Company or any of its Subsidiaries of more than $1,000,000 on or after the Company Balance Sheet Date;
(ix) each Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (except for the Company or any of its Subsidiaries), other than investments in marketable securities in the ordinary course of business;
(x) each Contract not otherwise described in any other subsection of this Section 3.1(p)(ii4.21(a) below) pursuant to which the Company or any of the Company its Subsidiaries is a party obligated to pay, or by which entitled to receive (for the benefit of the Company or any of its Subsidiaries), payments in excess of $2,500,000 in the 12-month period following the date of this Agreement, which cannot be terminated by the Company Subsidiaries is otherwise bound. A trueor such Subsidiary of the Company on less than 30 days’ notice without material payment or other material conditions, correct and complete copy other than the condition of each Material Contract has been furnished or made available to Parent or its representatives.notice;
(iixi) Material any joint venture, joint development or legal partnership, or any strategic alliance, joint development or partnership agreement, that is material to the Company and its Subsidiaries, taken as a whole;
(xii) each Contract relating to (1) outstanding indebtedness of the Company or the Subsidiaries of the Company for borrowed money, any indenture or any financial guaranty thereof (whether incurred, assumed, guaranteed or secured by any asset), in each case in a principal amount of $1,000,000 or more, other than (A) Contracts solely among the Company and any Subsidiary of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business accounts receivables and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses payables incurred by the Company or any of its Subsidiaries in the Company Subsidiaries ordinary course of business consistent with past practice and (2) any other Personsettlement facility;
(Hxiii) each any Contract relating to any interest rate, foreign exchange, derivatives or hedging transaction with any director, officer, member, employee a notional amount equal to or Affiliate of the Company or any of the Company Subsidiariesgreater than $1,000,000; and
(Ixiv) any “material contract” (as defined in Item 601(b)(4) or (10) of Regulation S-K under the Loan Agreements Exchange Act, other than those agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing arrangements described in Item 601(b)(10)(iii) of money, or for a line of credit.Regulation S-K);
(iiib) Except as set forth on Company Disclosure Schedule 3.1(p)(iii)would not reasonably be expected to have, neither individually or in the Company nor any of its Subsidiaries is aggregate, a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)Material Adverse Effect, each Material Contract is in full force and effect and is a legal, valid and binding agreement of the Company or the Company its Subsidiary, as the case may be, party thereto and, to the Knowledge knowledge of the Company, the counterparties of each other party thereto, and is in full force and effect and is enforceable against the Company or the applicable Company such Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, and, to the knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms, except terms (subject to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, fraudulent conveyance or moratorium and other similar laws now or hereafter in effect relating to affecting creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither Except as would not reasonably be expected to have, individually or in the Company nor aggregate, a Material Adverse Effect, none of the Company, any Company Subsidiary of its Subsidiaries or, to the knowledge of the Company, any other party thereto is in default or breach in any material respect, or has received written notice under the terms of any material default Material Contract and, to the knowledge of the Company, no event or breach (condition or any event circumstance has occurred that, with or without notice or lapse of time or both, would constitute a material any event of default or breach)thereunder.
(c) True, under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true correct and correct copy complete copies of each Material ContractContract have been made available by the Company to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Cantaloupe, Inc.), Merger Agreement (Cantaloupe, Inc.)
Material Contracts. (a) Except for this Agreement and the Contracts disclosed in the Filed Company SEC Documents, Section 4.14(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, and the Company has made available to Parent true and complete copies, of:
(i) each Contract that would be required to be filed by the Company Disclosure Schedule 3.1(p)(ias a “material contract” pursuant to Item 601(b)(10) contains a list of all Material Contracts Regulation S-K under the Securities Act;
(as defined in Section 3.1(p)(iiii) below) each Contract to which the Company or any of the Company Subsidiaries Subsidiary is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
that (A) any Contracts with third parties which would be reasonably expected to involve payments to or from restricts the Company or a Company Subsidiary ability of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of to compete in any penalty;
(C) business or with any Contracts (not described Person in clause (A) or any geographical area, (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of any penaltythird party, except in the case of each of clauses (A), (B) and (C) for such restrictions, requirements and provisions that are not material to the Company and the Company Subsidiaries, taken as a whole;
(Diii) any Contracts each Contract under which the Company or any Company Subsidiary assumed licenses Intellectual Property from or guaranteed to any outstanding Debt of a third party (including any other than (A) generally commercially available, off-the-shelf software programs and (B) non-exclusive licenses in the ordinary course of business), except for such licenses and sublicenses that are not material to the Company Member Interest Holder or Affiliate thereof)and the Company Subsidiaries, taken as a whole;
(Eiv) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale Contract pursuant to which the Company or any Company Subsidiary will acquire any material ownership interest in any other Person or other derivative Contracts involving hydrocarbons or business enterprise other commoditiesthan any Company Subsidiary, in each case, with a value greater than $1,000,000 after the date of this Agreement;
(Fv) any Contracts each Contract that constitutes a commitment relating to indebtedness for borrowed money or the acquisition (by merger, deferred purchase price of stock or assets or otherwise) property by the Company or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in excess of $1,000,000, other than agreements solely between or among the Company and any operating business Company Subsidiaries;
(vi) each Contract for a Derivative Transaction;
(vii) each Contract to which the Company or equity interests any Company Subsidiary is a party that provides for annual payments, receipts or expenditures in excess of $1,000,000;
(viii) any Contract that is a settlement, conciliation or similar agreement with any Governmental Authority or pursuant to which the Company or any Company Subsidiary will have any material obligations after the date of this Agreement;
(ix) each collective bargaining agreement or other Person which contain continuing obligations Contract with any labor union, works council, or other labor organization respecting employees of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunderSubsidiary;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(Hx) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of binding upon the Company or any Company Subsidiary or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xi) any Contract that grants to a third party a power of attorney of which the Company or any Company SubsidiarySubsidiary is a party that is for the employment or engagement of any person on a full-time or part-time basis, including directors, employees and independent contractors and employees at annual compensation in excess of $1,000,000. Each such Contract described in clauses (i) through (xi) above is referred to herein as a “Company Specified Contract.”
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)As of the date of this Agreement, each Material Contract is a valid and binding agreement of the Company Specified Contracts is valid, binding and enforceable on the Company or the a Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the each other parties party thereto, and is in full force and effect except (i) for such failures to be valid, binding or enforceable or to be in full force and effect as would not reasonably be expected, individually or in the case may beaggregate, in accordance with its terms, except to the extent that the enforcement thereof have a Company Material Adverse Effect and (ii) insofar as such enforceability may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or other similar laws now or hereafter in effect Laws of general applicability relating to or affecting creditors’ rights generally and (B) general rights, or by principles governing the availability of equity (regardless of equitable remedies, whether enforceability is considered in a proceeding Proceeding at law or in equity). Neither As of the Company nor any Company Subsidiary is in default or breach in any material respectdate of this Agreement, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To to the Knowledge of the Company, there is no counterparty to default under any Material Company Specified Contract is in by the Company or any Company Subsidiary or any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or breachany Company Subsidiary or any other party thereto, in any material respecteach case except as would not reasonably be expected, of such individually or in the aggregate, to have a Company Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Midstates Petroleum Company, Inc.), Merger Agreement (Amplify Energy Corp)
Material Contracts. (ia) Section 3.20(a) of the Company Disclosure Schedule 3.1(p)(i) contains a list lists all written and oral contracts, agreements, guarantees, leases, and executory contracts that exist as of all Material Contracts (as defined in Section 3.1(p)(ii) below) the date hereof to which the Company or any of the Company its Subsidiaries is a party or by which it is bound, other than those contracts that are filed as exhibits to the SEC Reports filed and publicly available prior to the date of this Agreement (the "Filed Contracts"), that (i) are required to be filed as an exhibit to an SEC Report, (ii) materially restrict or would materially restrict the ability of the Company, Parent (after giving effect to the consummation of the Merger) or any of their respective Subsidiaries from competing or otherwise conducting their respective businesses substantially as such businesses are conducted on the date of this Agreement, or (iii) contain minimum annual purchase requirements of the Company or its Subsidiaries of $1,000,000 or more, and which have a term of more than one year and cannot be cancelled on less than 90 days notice without a material penalty or other material financial cost to the Company or any of its Subsidiaries (the Company Subsidiaries is otherwise bound. A true, correct contracts so described and complete copy of each Material Contract has been furnished or made available the Filed Contracts are referred to Parent or its representativesherein collectively as the "Contracts").
(iib) Material Contracts Neither the Company nor any of its Subsidiaries has received any notice from Sears to the effect, or has otherwise been advised by Sears, that Sears will not renew or will terminate its licensing arrangements with the Company and the Company its Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with respect to one-third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more of the then current total number of the Sears stores in any twelve (12) month period, pursuant to which the Company or has a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or licensed department and the products therefrom;
(B) any Contracts for stores in which it holds a license to use the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations Sears name. As of the Company or any Company Subsidiary and which could reasonably require the payment date of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii)this Agreement, neither the Company nor any of its Subsidiaries is a party to:
(A) has received any Contract containing covenants notice from BJ's that in any way purport to restrict it will not renew or prohibit, in any material respect, the business activity of will terminate its overall licensing arrangements with the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiaryand its Subsidiaries.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Luxottica Group Spa), Merger Agreement (Cole National Corp /De/)
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iiia) Except as set forth on Company disclosed in Section 4.18 of the PDN Disclosure Schedule 3.1(p)(iii)Schedule, and except for this Agreement, neither the Company PDN nor any of its Subsidiaries is bound by any contract, arrangement, commitment or understanding:
(i) that constitutes a partnership, joint venture, technology sharing or similar agreement between PDN or any of its Subsidiaries and any other person;
(ii) with respect to the service of any directors, officers, employees, or independent contractors or consultants that are natural persons, involving the payment of $100,000 or more in any 12 month period, other than those that are terminable by PDN or any of its Subsidiaries on no more than 30 days’ notice without penalty;
(iii) that limits the ability of PDN or any of its Subsidiaries to compete or enter into in any line of business, in any geographic area or with any person, in each case, which limitation or requirement would reasonably be expected to be material to PDN and its Subsidiaries taken as a whole;
(iv) with or to a labor union, works council or guild (including any collective bargaining agreement or similar agreement);
(v) relating to the use or right to use Intellectual Property, including any license or royalty agreements, other than an agreement entered into in the ordinary course of business and that is not material to PDN;
(vi) that provides for indemnification by PDN to any person, other than an agreement entered into in the ordinary course of business and that is not material to PDN;
(vii) between PDN or any of its Subsidiaries and any current or former director or officer of PDN or any of its Subsidiaries, or any affiliate of any such person (other than an PDN Benefit Plan);
(viii) with respect to (A) Indebtedness, (B) any capital lease obligations to any person other than PDN or any of its Subsidiaries, (C) any obligations to any person other than PDN or any of its Subsidiaries in respect of letters of credit and bankers’ acceptances, (D) any indebtedness to any person other than PDN or any of its Subsidiaries under interest rate swap, hedging or similar agreements, (E) any obligations to pay to any person other than PDN or any of its Subsidiaries the deferred purchase price of property or services, (F) indebtedness secured by any Lien on any property owned by PDN or any of its Subsidiaries even though the obligor has not assumed or otherwise become liable for the payment thereof, or (G) any guaranty of any such obligations described in clauses (A) through (F) of any person other than PDN or any of its Subsidiaries, in each case, having an outstanding amount in excess of $100,000 individually or $250,000 in the aggregate;
(ix) that is material to PDN or that contains any so called “most favored nation” provision or similar provisions requiring PDN to offer to a person any terms or conditions that are at least as favorable as those offered to one or more other persons;
(x) pursuant to which any agent, sales representative, distributor or other third party markets or sells any PDN Product;
(xi) pursuant to which PDN or any Subsidiary is a party to:granting rights of first refusal, rights of first offer or similar rights to acquire any business or assets of the PDN or any Subsidiary;
(xii) relating to the purchase or sale of assets outside the ordinary course of business of PDN;
(xiii) relating to the issuance of any securities of PDN or any Subsidiary;
(xiv) pursuant to which any material asset of PDN or any of its Subsidiaries is leased;
(xv) relates to the purchase of (A) any Contract containing covenants equipment entered into since December 31, 2013 and (B) any materials, supplies, or inventory since December 31, 2013, other than any agreement which, together with any other related agreement, involves the expenditure by the PDN of less than $100,000;
(xvi) that represents a purchase order with any supplier for the purchase of inventory items in an amount in excess of $100,000 of materials;
(xvii) pursuant to which PDN or any Subsidiary is a party and having a remaining term of more than one (1) year after the date hereof or involving a remaining amount payable thereunder (either to or from PDN) as of the date hereof, of at least $100,000;
(xviii) that involves the payment of $250,000 or more in any way purport to restrict or prohibit, in any material respect, 12-month period after the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Persondate hereof; or
(Bxix) that would prevent, delay or impede the consummation, or otherwise reduce the contemplated benefits, of any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company transactions contemplated by this Agreement. PDN has previously made available to PDN or any Company Subsidiary or any its representatives complete and accurate copies of each Contract that grants to a third party a power of attorney of the Company or any Company Subsidiarytype described in this Section 4.18(a) (collectively referred to herein as “PDN Material Contracts”).
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)All of the PDN Material Contracts were entered into at arms’ length in the ordinary course of business and are valid and in full force and effect, each except to the extent they have previously expired in accordance with their terms. Neither PDN nor any of its Subsidiaries has given or received a notice of cancellation or termination under any PDN Material Contract, or has, or is alleged to have, and to the knowledge of PDN, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a default under the provisions of, any PDN Material Contract.
(c) Neither PDN nor any Subsidiary of PDN is in breach of or default under the terms of any PDN Material Contract, except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a PDN Material Adverse Effect. To the knowledge of PDN, no other party to any PDN Material Contract is in breach of or default under the terms of any PDN Material Contract except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a PDN Material Adverse Effect. Each PDN Material Contract is a valid and binding agreement obligation of the Company PDN or the Company Subsidiary, as the case may be, Subsidiary of PDN which is party thereto and, to the Knowledge knowledge of the CompanyPDN, the counterparties of each other party thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its termseffect, except to the extent that the (i) such enforcement thereof may be limited by (A) subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or other similar laws Laws, now or hereafter in effect effect, relating to creditors’ rights generally and (Bii) general principles equitable remedies of equity specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(regardless of whether enforceability is considered in a proceeding at law or in equity). d) Neither the Company PDN nor any Company Subsidiary of PDN is in default subject to any continuing obligations or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), restrictions under the terms Alliance Agreement between Monster Worldwide Inc. and PDN or the Diversity Recruitment Partnership Agreement, dated as of November 6, 2012, between PDN and LinkedIn Corporation (including under any amendment to either such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contractagreement).
Appears in 2 contracts
Sources: Merger Agreement (Ladurini Daniel), Merger Agreement (Professional Diversity Network, Inc.)
Material Contracts. (ia) Section 4.15 of the Company Disclosure Schedule 3.1(p)(i) contains Schedules sets forth a list true, correct and complete list, as of all Material the date of this Agreement, of the following Contracts (as defined in but not including any Lease Agreements, which are addressed by Section 3.1(p)(ii) below4.23) to which the Company or any of the Company Subsidiaries is a party or by which any of the Company or any of the Company Subsidiaries’ assets or properties are bound (collectively, the “Material Contracts”):
(i) any Contract not otherwise described in any other subsection of this Section 4.15(a) that would be required to be filed by the Company as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) any Contract pursuant to which the Company and/or any of the Company Subsidiaries may be entitled to receive or obligated to pay more than $750,000 in any calendar year;
(iii) any Contract that requires the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy to purchase its total requirements of each Material Contract has been furnished any product or made available to Parent service from any other Person or its representatives.contains “take or pay” or similar provisions;
(iiiv) Material any Contract that contains a “most-favored-nation” clause or similar term that provides preferential treatment with respect to pricing, in each case, other than Contracts that expire or are terminable or cancellable without penalty within one year following the Closing Date or such Contracts that are immaterial to the conduct of the business of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or Subsidiaries, taken as a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefromwhole;
(Bv) any Contracts for Contract that limits or purports to limit the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations ability of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company Subsidiaries to (A) compete in any line of business, with any Person, in any geographic area or during any Company Subsidiary period of time, including by limiting the ability to sell any particular services or products to any Persons, or (B) solicit any customers or individuals for employment (other than customary employee non-solicitation covenants contained in vendor, partner or supplier contracts entered into in the applicable sellers thereunderordinary course of business);
(Gvi) each joint venture, partnership any Contract requiring or otherwise relating to any other Contract involving a sharing of profits or losses future capital expenditures by the Company or any of the Company Subsidiaries with any in excess of $500,000 individually or $1,000,000 in the aggregate, in each case, other Personthan Contracts that expire or are terminable or cancellable without penalty within one year following the Closing Date;
(Hvii) each any Contract relating to the creation, incurrence, assumption or guarantee of any Indebtedness in excess of $500,000 individually or $1,000,000 in the aggregate, other than accounts receivable and payables incurred or arising in the ordinary course of business;
(viii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(ix) any Contract that provides for the establishment or operation of any joint venture, partnership, joint development, strategic alliance or similar arrangement that is material to the business of the Company and the Company Subsidiaries, taken as a whole;
(x) any Contract to which a (A) Governmental Authority (other than Contracts with any director, officer, member, employee or Affiliate a Governmental Authority in its capacity as a customer of the Company or any of the Company Subsidiaries; andSubsidiary), (B) Major Supplier or (C) Major Customer is a party;
(Ixi) any Contract involving any resolution or settlement of any actual or threatened Proceeding which will involve payments after the Loan Agreements and each other indenture, mortgage, promissory note date hereof in excess of $100,000 individually or $250,000 in the aggregate or that provides for any material injunctive or other agreement or commitment for the borrowing of money, or for a line of credit.non-monetary relief;
(iiixii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii)any hedging, neither the Company nor swap, derivative or similar Contract;
(xiii) any of its Subsidiaries is a party to:
Contract under which (A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries has licensed or materially limit otherwise made available any Company Owned IP to a Third Party, including agreements containing releases, immunities from suit, covenants not to ▇▇▇ or non-assertion provisions with respect to Company Owned IP (except for non-exclusive licenses granted to the freedom Company’s or any Company Subsidiary’s customers or vendors in the ordinary course of business or partners in the ordinary course of business in substantially similar form as the licenses granted under the partner Contracts linked to in the “Links to Key Terms of Service and Privacy Statement” document Made Available in the Data Room), and/or (B) Intellectual Property that is material to the business of the Company or the Company Subsidiaries is licensed or otherwise made available (including through agreements containing releases, immunities from suit, covenants not to ▇▇▇ or non-assertion provisions) to the Company or any of the Company Subsidiaries thereof by any Person (except for Shrink Wrap Licenses, Open Source Software licenses and licenses granted to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any of the Company Subsidiary Subsidiaries from consultants or any Contract that grants to a third party a power of attorney of independent contractors performing services for the Company or any of the Company SubsidiarySubsidiaries and which license grants are in substantially similar form as the licenses granted under the consultant and contractor Contracts in the “Standard Forms of Agreement” folder Made Available in the Data Room) (such Contracts under this clause (B), “Company IP Licenses”);
(xiv) any labor, collective bargaining agreement or similar agreements; and
(xv) any insurance policies required to be set forth in Section 4.20 of the Company Disclosure Schedules.
(ivb) Except as set forth on The Company Disclosure Schedule 3.1(p)(iv)has Made Available to Parent, true, correct and complete copies of each Material Contract is (including all modifications, amendments, supplements, annexes and schedules thereto and written waivers thereunder). Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a valid and binding agreement of the Company or the Company SubsidiaryMaterial Adverse Effect, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and (i) each Material Contract is in full force and effect and is a valid and binding agreement enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge any of the Company, the other parties thereto, as the case may be, Company Subsidiaries party thereto in accordance with its terms, except to the extent that the enforcement thereof as such enforceability may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or moratorium and other similar laws now or hereafter in effect relating to Applicable Laws affecting creditors’ rights generally and (B) by general principles of equity equity, and (regardless ii) as of whether enforceability is considered in a proceeding at law or in equity). Neither the date of this Agreement, none of the Company nor any of the Company Subsidiary Subsidiaries party to, nor, to the Company’s Knowledge, any other party to any Material Contract, is in breach of or default or breach in any material respectunder, or has provided or received any written notice of any material default intention to terminate or breach (or seek renegotiation of, any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Material Contracts. (a) Neither the Company nor any of its Subsidiary is a party to or bound by any Contract:
(i) which, as of the date hereof, and except as filed with the Company Disclosure Schedule 3.1(p)(i) contains SEC Documents, is a list of all Material Contracts “material contract” (as such term is defined in Section 3.1(p)(iiItem 601(b)(10) belowof Regulation S-K promulgated by the SEC);
(ii) that is reasonably expected to require the payment by the Company of a dollar amount in excess of $500,000 or extends for a period of 12 months or more (other than any contract or commitment that is terminable on 90 days or less notice without penalty or any confidentiality or non disclosure agreement);
(iii) with employees and contracts with other consultants, which are reasonably expected to involve payments by the Company or any Subsidiary of more than annual compensation of $150,000;
(iv) with respect to any joint venture or partnership arrangements, or with respect to any license or distribution agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Subsidiary with any Third Party and relating to any product or planned product of the Company;
(v) pursuant to which any Indebtedness of the Company or any of its Subsidiaries greater than $25,000 is or may be incurred other than the Loan Documents and any Contract between or among the Company and/or wholly-owned Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A trueCompany, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or guarantees the products therefromperformance of the obligations of any Third Party;
(Bvi) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete any pending acquisition or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses disposition by the Company or any of its Subsidiaries of properties or assets, except for acquisitions and dispositions of properties, assets and inventory in the Company Subsidiaries with any other Personordinary course of business;
(Hvii) each Contract with any director, officer, member, employee or Affiliate limiting the ability of the Company or any of its Subsidiaries or their respective successors and assigns to compete in any line of business or with any Person or in any geographic area, or restricting the right of the Company Subsidiaries; andand its Subsidiaries or their respective successors and assignes from selling or purchasing from any Person or hiring any Person or that provides for any standstill or similar obligations restricting the ability of the Company to purchase securities of any other entity;
(Iviii) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing sale of moneygoods or services to any Governmental Authority;
(ix) providing for any contingent payments by the Company or any of its Subsidiaries exceeding $250,000 in any one case;
(x) not entered into in the ordinary course of business between the Company or any of its Subsidiaries, on the one hand, and any Affiliate thereof other than any Subsidiary of the Company; or
(xi) requiring a consent to, or for otherwise containing a line provision restricting a “change of creditcontrol,” or that would reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated by this Agreement.
(iiib) Except as Each Contract of the type described in Section 4.14(a), whether or not set forth on in Section 4.14(a) of the Company Disclosure Schedule 3.1(p)(iii(including Contracts which would be required to be set forth in Section 4.14(a) of the Company Disclosure Schedule if such Contracts were not filed as exhibits to the Company SEC Documents), is referred to herein as a “Material Contract.”
(c) Except for matters that would not have a Company Material Adverse Effect, (i) each Material Contract is a valid and binding obligation of the Company or a Subsidiary of the Company, as applicable, in full force and effect and enforceable against the Company or such Subsidiary in accordance with its terms, subject to the Bankruptcy and Equity Exceptions, and there is no breach, violation or default by the Company or any of its Subsidiaries under any of the Material Contracts, (ii) no Material Contract has been canceled by any other party thereto, (iii) to the knowledge of the Company, no other party is in breach or violation of, or default under, any Material Contract and (iv) neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of a default under any material default Material Contract or breach (or of any event thator condition which, with after notice or lapse of time or both, would will constitute a material default on the part of the Company or breach), any of its Subsidiaries under the terms of any such Material Contract. To the Knowledge As of the Companydate hereof, no counterparty to any true and correct copies of all Material Contract is in default Contracts (as amended or breach, in any material respect, of such Material Contract. The modified) are either publicly filed with the SEC or the Company has made available to Parent prior to the date hereof a true and correct copy copies of each Material Contractsuch Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Thoratec Corp), Merger Agreement (HeartWare International, Inc.)
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains a list As of all Material the date hereof, there are no Contracts (as defined in Section 3.1(p)(ii) below) to which the Company it or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party (other than Reinsurance Contracts, Real Property Leases and Benefit Plans): (i) that are required to be described in, or filed as an exhibit to:
, any of its SEC Reports that are not so described or filed as required by the Securities Act or the Exchange Act, (ii) that contain any provisions restricting the ability of it or any of its Subsidiaries, or which, following the consummation of the Amalgamation, would restrict the ability of Axis or any of its Subsidiaries or PRE or any of its Subsidiaries or any of their successors, including the Amalgamated Company and its Subsidiaries, to compete or transact in any business or with any Person or in any geographic area or grants a right of exclusivity to any Person, (iii) pursuant to which any indebtedness of it or any of its Subsidiaries is outstanding or may be incurred in excess of $50 million or pursuant to which it or any of its Subsidiaries guarantees any indebtedness of any other Person (other than it or any of its Subsidiaries) (except for trade payables arising in the ordinary course of business), (iv) involving any material partnership, joint venture or other similar arrangement with any other Person (other than it or any of its Subsidiaries), relating to the formation, creation, operation, management or control of any such partnership or joint venture, (v) that involves or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $5 million in any twelve-month period, other than: (A) any Contract containing covenants Contracts that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company can be terminated by it or any of the Company its Subsidiaries or materially limit the freedom of the Company on less than 90 days’ notice without payment by it or any of the Company its Subsidiaries thereof to engage in of any line of business penalty, or to compete with any Person; or
(B) Assumed Reinsurance Contracts, (vi) that have been entered into since January 1, 2012 or otherwise provide for material ongoing obligations of it or any Contract of its Subsidiaries and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business (excluding, for the avoidance of doubt, acquisitions or dispositions of Investment Assets, and immaterial tangible assets in the ordinary course of business), (vii) that grants outsources any material function or part of its business or that of any Subsidiary or Subsidiaries (viii) that prohibits or restricts the payment of dividends or distributions in respect of its shares or capital stock or those of any of its Subsidiaries, prohibits the pledging of the shares or capital stock of it or any of its Subsidiaries or prohibits or restricts the issuance of any guarantee by it or any of its Subsidiaries, (ix) that restricts its ability to incur indebtedness or guarantee the indebtedness of others, or (x) in its case (and not in the case of any of its Subsidiaries) that are guarantees, including of obligations, suretyship contracts, performance bonds or other form of guaranty agreement or capital maintenance agreements or any keep ▇▇▇▇▇, or (xi) Contracts or agreements that contain a third Person a right of first refusalput, option, preferential right call or similar right pursuant to acquire properties which it or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of the Company more than $50 million (each such Contract described in clauses (i)-(xi), other than any Reinsurance Contract, Real Property Lease or any Company Subsidiary or any Contract that grants to Benefit Plan, a third party a power of attorney of the Company or any Company Subsidiary“Material Contract”).
(ivi) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Each Material Contract is a legal, valid and binding agreement of it and its Subsidiaries to the Company or the Company Subsidiary, as the case may be, extent such Person is a party thereto and, to the Knowledge of the Companyits Knowledge, the counterparties thereto, each other party thereto is in compliance in all material respects with its terms and is in full force and effect, except where the failure to be valid, binding or in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) it and is enforceable against the Company or the applicable Company Subsidiary, each of its Subsidiaries and, to its Knowledge, each other party thereto, has performed all obligations required to be performed by such Person under such Material Contract, except where such noncompliance would not, individually or in the Knowledge aggregate, reasonably be expected to have a Material Adverse Effect, (iii) neither it nor any of its Subsidiaries has received notice of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice existence of any material default event or breach (or any event thatcondition which constitutes, with or, after notice or lapse of time or both, will constitute, a default on the part of it or any of its Subsidiaries under any Material Contract, except where such default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iv) there are no events or conditions which constitute, or, after notice or lapse of time or both, will constitute a material default or breach), under on the terms part of any counterparty under such Material Contract. To , except as would not, individually or in the Knowledge aggregate, reasonably be expected to have a Material Adverse Effect.
(c) Section 3.17(c) of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof its Disclosure Letter contains a true and correct copy list, as of the date of this Agreement, of each Material ContractContract entered into by it or any of its Subsidiaries.
Appears in 2 contracts
Sources: Agreement and Plan of Amalgamation (Partnerre LTD), Agreement and Plan of Amalgamation (Axis Capital Holdings LTD)
Material Contracts. (ia) Except for this Agreement, any Employee Plans, and the Contracts filed as exhibits to the Company SEC Documents that are available as of the date prior to the date of this Agreement, Section 3.22(a) of the Company Disclosure Schedule 3.1(p)(i) Letter contains a list complete and correct list, as of all Material the date of this Agreement, of each of the following Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company its Subsidiaries or an Affiliated Practice is a party or by and which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall includeremains in effect:
(Ai) each Contract that involves performance of services or delivery of goods, products or developmental, consulting or other services commitments by the Company, any Contracts with third parties which would be reasonably expected to involve payments to of its Subsidiaries or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month periodAffiliated Practices, and pursuant to which payments to the Company or a Company Subsidiary gathersCompany, processes, treats, transports, stores, sells or purchases hydrocarbons any of its Subsidiaries or the products therefrom;
(B) any Contracts for Affiliated Practices of $6,500,000 or more were made in the construction of gathering or other pipeline systems or processingCompany’s fiscal year ended December 31, compression2022, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary one of its Subsidiaries on no more than sixty (60) days’ notice or less in connection with an annual renewal without liability, payment or ongoing obligation on the part of the Company or any of its Subsidiaries;
(ii) each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other services commitments to the Company or any of its Subsidiaries, pursuant to which payments by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary its Subsidiaries of $1,000,000 5,000,000 or more were made in any twelve (12) month periodthe Company’s fiscal year ended December 31, 2022, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary one of its Subsidiaries on no more than sixty (60) days’ notice or less in connection with an annual renewal without liability, payment by or ongoing obligation on the part of the Company or any Company Subsidiary of any penaltyits Subsidiaries;
(iii) each Contract that contains any provisions restricting the Company or any of its Subsidiaries from competing or engaging in any line of business or with any Person or in any area, except for such restrictions that, individually or in the aggregate, are not material to the Company and its Subsidiaries, taken as a whole;
(iv) each Contract that (A) grants any exclusive rights to any third party, including any exclusive license or supply or distribution agreement or other exclusive rights, (B) grants any rights of first refusal or rights of first negotiation with respect to any product, service or Company Intellectual Property, (C) contains any provision that requires the purchase of all or any portion of the Company’s or any of its Subsidiaries’ requirements from any third party or (D) grants “most favored nation” rights, except in the case of each of clauses (A), (B), (C) and (D) for such rights and provisions that, individually or in the aggregate, are not material to the Company and its Subsidiaries, taken as a whole;
(v) each Contract pursuant to which any member of the Company Group is granting or is granted any license rights to use any Intellectual Property (other than nonexclusive licenses granted in the ordinary course of business), except for (A) Contracts with current and former employees, contractors, or consultants of the Company Group entered into in connection with their engagement by the Company Group, (B) nondisclosure agreements, (C) licenses for open source software, (D) non-exclusive licenses to available commercial software and (E) any other agreements that, individually or in the aggregate, are not material to the Company Group, taken as a whole;
(vi) each Contract relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (A) with an aggregate available principal amount (whether or not such available principal amount is outstanding) not exceeding $5,000,000 or (B) between or among any of the Company and its Subsidiaries;
(vii) each Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (except for the Company Subsidiary assumed or guaranteed any of its Subsidiaries) and has any outstanding Debt obligation with respect thereto, other than (A) extensions of a third party credit in the ordinary course of business, and (including any Company Member Interest Holder or Affiliate thereof)B) investments in marketable securities in the ordinary course of business, in each case, consistent with past practice;
(Eviii) each Contract under which the Company or any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale of its Subsidiaries has any ongoing obligations (including indemnification obligations) which have not been satisfied or performed (other derivative Contracts involving hydrocarbons or other commodities;
(Fthan confidentiality obligations) any Contracts relating to the acquisition or disposition of all or any portion of any business or the assets or properties of any business (whether by merger, purchase sale of stock or shares, sale of assets or otherwise) by for consideration in excess of $10,000,000, except for acquisitions or dispositions of inventory, properties and other assets in the ordinary course of business consistent with past practice;
(ix) each material partnership, material joint venture or other similar Contract or arrangement;
(x) each Contract between the Company or any Company Subsidiary of its Subsidiaries, on the one hand, and any operating business current director or equity interests of any other Person which contain continuing obligations officer of the Company or any Person (or any of their Affiliates) beneficially owning five percent (5%) or more of Company Subsidiary Common Stock, on the other hand, except for any commercial Contracts entered into on arm’s length terms in the ordinary course of business and Employee Plans;
(xi) each Contract between the Company, any of its Subsidiaries, or an Affiliated Practice, on the one hand, and a Governmental Authority, on the other hand, pursuant to which could reasonably require the payment Company, any of monies by its Subsidiaries or an Affiliated Practice receives payments from any Governmental Authority;
(xii) each Contract of the type described and set forth on Section 3.22(a)(xii) of the Company Disclosure Letter;
(xiii) all Contracts for management services, administrative services or business support services agreements between an Affiliated Practice and the Company or any a Subsidiary of the Company pursuant to which the Company or a Subsidiary of the Company provides administrative and business support services to the applicable sellers thereunderAffiliated Practice;
(Gxiv) all Contracts that require or provide for the referral or recommendation of patients to the Company Group;
(xv) each joint venture, partnership Contract entered into in connection with the settlement or other resolution of any other Contract involving a sharing of profits threatened or losses by actual Legal Proceeding under which the Company or any of its Subsidiaries have any continuing or outstanding obligations, liabilities or restrictions that, individually or in the aggregate, are material to the Company Subsidiaries with any other Person;
(H) each Contract with any directorand its Subsidiaries, officer, member, employee or Affiliate of the Company or any of the Company Subsidiariestaken as a whole; and
(Ixvi) each Contract that commits the Loan Agreements and each other indenture, mortgage, promissory note Company or other agreement or commitment for its Subsidiaries to enter into any Contracts of the borrowing of money, or for a line of credittypes described in the foregoing clauses (i) through (xv).
(iiib) Except as set forth on would not have a Company Disclosure Schedule 3.1(p)(iii)Material Adverse Effect, neither as of the date of this Agreement, each Contract filed as an exhibit to the Company nor any of its Subsidiaries is a party to:
(ASEC Documents or required to be disclosed in Section 3.22(a) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company Disclosure Letter (each, a “Material Contract”) (unless it has terminated or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof expired (in each case according to engage its terms)) is in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract full force and effect and is a legal, valid and binding agreement of the Company or the Company its Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, of each other party thereto, enforceable against the other parties theretoCompany or such Subsidiary, as the case may be, and, to the Knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms, terms except to the extent that the enforcement thereof as such enforceability may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity)the Enforceability Exceptions. Neither the Company nor any Company Subsidiary of its Subsidiaries nor, to the Knowledge of the Company, any other party is in breach of or in default or breach in under any material respectMaterial Contract, or and no event has received written notice of any material default or breach (or any event occurred that, with notice or without the lapse of time or the giving of notice or both, would constitute a material default thereunder by the Company or breach)any of its Subsidiaries party thereto, under the terms of any except for such breaches and defaults which would not have a Company Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material ContractAdverse Effect. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract, including all amendments and supplements thereto.
Appears in 2 contracts
Sources: Merger Agreement (CVS HEALTH Corp), Merger Agreement (Oak Street Health, Inc.)
Material Contracts. (a) Except for this Agreement, the contracts filed as exhibits to the Company SEC Documents or as set forth in Section 4.19 of the Company Disclosure Schedule, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by (i) any contract that would be required to be filed by the Company Disclosure Schedule 3.1(p)(ior pursuant to Item 4 of the Instructions to Exhibits of Form ▇▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇, (▇▇) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which any contract between the Company or any of its Subsidiaries and any director or executive officer of the Company Subsidiaries is a party or by which any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form ▇▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇, (▇▇▇) any contract for the license from the Company or any of its Subsidiaries of any material Intellectual Property on an exclusive basis, or (iv) except with respect to territorial restrictions on the Company Subsidiaries is otherwise bound. A truedistribution of products pursuant to the Company’s distribution agreements with distributors entered into the ordinary course of business, correct and complete copy of each Material Contract has been furnished or made available any contract (A) purporting to Parent or its representatives.
(ii) Material Contracts restrict the ability of the Company and the Company or its Subsidiaries to (“Material Contracts”1) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more compete in any twelve geographic region or line of business, (122) month periodsell or deliver products or services to any Person, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells (3) compete with or purchases hydrocarbons obtain products or the products therefrom;
(B) services from any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) Person or (B) abovecontaining exclusivity obligations or “most favored nation” provisions. Each such contract described in clauses (i) which through (iv) above and each such contract that would be reasonably expected a Material Contract but for the exception of being filed as an exhibit to involve payments to or from the Company or SEC Reports is referred to herein as a “Material Contract”.
(b) Except as would not have a Company Subsidiary of $1,000,000 or more in any twelve Material Adverse Effect, (12i) month periodeach Material Contract is a legal, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business valid and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations binding obligation of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary its Subsidiaries party thereto and, to the applicable sellers thereunder;
Company’s Knowledge, the other parties thereto, in each case subject to the bankruptcy, insolvency (G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iiiincluding all laws relating to fraudulent transfers), reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is a party to:
(A) in breach or violation of, or default under, any Material Contract containing covenants that in any way purport to restrict and no event has occurred or prohibit, in any material respect, not occurred through the business activity of the Company Company’s or any of the Company Subsidiaries its Subsidiaries’ action or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; inaction or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company’s Knowledge, the counterparties thereto, and is in full force and effect and is enforceable against the Company action or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice inaction of any material default or breach (or any event thatthird party, that with notice or lapse of time or both, both would constitute a material breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or breach)notice of default, termination or cancellation under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Shanda Interactive Entertainment LTD), Merger Agreement (Ku6 Media Co., LTD)
Material Contracts. (i) Except for this Agreement and Contracts filed as exhibits to the Company Disclosure Schedule 3.1(p)(iReports, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by any Contract:
(A) contains that limits or purports to limit, curtail or restrict, in any material respect, either the type of business in which the Company or any of its Subsidiaries (or, after giving effect to the Merger, Parent or any of its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, except for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of sixty (60) days or less;
(B) for any joint venture, partnership, strategic alliance or similar arrangement, or any Contract involving a list sharing of all Material Contracts revenues, profits, losses, costs, or liabilities by the Company or any of its Subsidiaries with any other Person involving a potential combined commitment or payment by the Company or any of its Subsidiaries in excess of $1,000,000 in any calendar year;
(C) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or guaranteeing indebtedness of any Person in excess of $1,000,000 or that becomes due and payable upon, or provides a right of termination or acceleration as defined a result of, the consummation of the Merger and the other Transactions;
(D) that, individually or together with related Contracts, provides for any acquisition, disposition, lease, license, use, distribution or outsourcing of assets, services, rights or properties with a value or requiring fees in Section 3.1(p)(iiany calendar year in excess of $1,000,000 or that is otherwise material to the business of the Company or any of its Subsidiaries;
(E) belowthat is a collective bargaining agreement;
(F) that involves or could reasonably be expected to involve aggregate payments by or to the Company and/or its Subsidiaries in excess of $1,000,000 in any calendar year, except for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of sixty (60) days or less;
(G) that includes an indemnification obligation of the Company or any of its Subsidiaries in a Contract that was entered into by the Company or its Subsidiaries outside the ordinary course of business;
(H) that provides for any standstill, most favored nation provision or equivalent preferential pricing terms, exclusivity or similar obligations to which the Company or any of its Subsidiaries is subject or a beneficiary thereof, which is material to the Company or any of its Subsidiaries, taken as a whole, except for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries is upon notice of sixty (60) days or less;
(I) between the Company and its Subsidiaries, on the one hand, and the Company’s Affiliates (other than Subsidiaries of the Company) or other Persons, on the other hand, that would be required to be disclosed under Item 404 of Regulation S-K of the SEC; and
(J) that contains a party put, call or by similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $100,000 (other than any Stock Plans or agreements entered pursuant thereto). Each such contract described in clause (i) above, together with all Contracts filed as exhibits to the Company Subsidiaries Reports, is otherwise bound. A true, correct and complete copy of each referred to herein as a “Material Contract has been furnished or made available to Parent or its representativesContract.”
(ii) Each of the Material Contracts is and after the Effective Time will continue to be valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, each other party thereto, in accordance with its terms and is in full force and effect, and each of the Company and the Company each of its Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete extent they are party thereto or excess assets not required for bound thereby) and, to the Company’s operations knowledge, each other party thereto has performed in the Ordinary Course of Business and Contracts that are terminable all material respects all obligations required to be performed by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts it under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations each Material Contract. Each of the Company and each of its Subsidiaries is not (with or without notice, lapse of time or both) in breach or default in any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary material respect thereunder and, to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any knowledge of the Company Subsidiaries Company, no other party to any Material Contract is (with or without notice, lapse of time or both) in breach or default in any other Person;
(H) each Contract with any directormaterial respect thereunder, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under from the terms of any such Material Contract. To the Knowledge of the Company, no counterparty other party to any Material Contract is in default of any intention to cancel, terminate, change the scope of rights and obligations under or breach, in any material respect, of not to renew such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (KAYAK Software Corp), Merger Agreement (Priceline Com Inc)
Material Contracts. (ia) Section 5.21(a) of the Company Disclosure Schedule 3.1(p)(i) contains a list of lists all Material Contracts (as defined in Section 3.1(p)(iihereinafter defined) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”Subsidiaries, and except as set forth in Section 5.21(a) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)Schedule, each Material Contract is a valid and binding agreement of on the Company or the such Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, Subsidiary and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except subject to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or other similar laws now or hereafter in effect relating to creditors’ ' rights generally and (B) general principles of equity (regardless equity. Except as set forth in Section 5.21(a) of whether enforceability is considered in a proceeding at law or in equity). Neither the Company Disclosure Schedule, to the Company's knowledge, neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material violation or default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To Contract and, to the Knowledge knowledge of the Company, no counterparty to any Material Contract other party is in default under any of the Material Contracts, and no such violations or breachdefaults will be triggered by the execution, delivery and performance of this Agreement by the Company or the consummation of the Transactions. For purposes of this Agreement, "Material Contracts" shall mean (i) all contracts, agreements or understandings of a party and the Subsidiaries of such party involving any payments in an amount, individually or in the aggregate, in excess of $50,000, (ii) all acquisition, merger, asset purchase or sale agreements entered into by a party or any Subsidiary of such party, (iii) all non-competition agreements and other agreements or obligations which purport to limit in any respect the manner in which, or the localities in which, all or any material respect, portion of the business of a party or any Subsidiary of such Material Contract. party may be conducted, (iv) all transactions, agreements, arrangements or understandings with any affiliate of a party or any Subsidiary of such party that would be required to be disclosed under Item 404 of Regulation S-K of Title 17, Part 229 of the Code of Federal Regulations ("Regulation S-K"), (v) all voting or other agreements to which a party is a party governing how any shares of such party's Common Stock shall be voted, (vi) all agreements which provide for, or relate to, the incurrence by a party or any Subsidiary of such party of indebtedness for borrowed money (including any interest rate or foreign currency swap, cap, collar, hedge or insurance agreements, or options or forwards on such agreements, or other similar agreements for the purpose of managing the interest rate or foreign exchange risk associated with its financing), (vii) all contracts or other agreements which would prohibit or materially delay the consummation of the Transactions, (viii) all joint venture agreements to which a party or any Subsidiary of such party is a party, (ix) all agreements or other arrangements related to the licensing of assets by or to a party or any Subsidiary of such party, (x) all material agreements of indemnification or any guaranty, (xi) any contracts or agreements which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which a party or any Subsidiaries of such party have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by such party or any Subsidiary of such party and which may not be canceled without penalty upon notice of ninety (90) days or less, (xii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any party's product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any party's products, service or technology except agreement with distributors or sales representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to the other party; (xiii) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; and (xii) all other agreements within the meaning set forth in Item 601(b)(10) of Regulation S-K. The Company has made available to Parent prior to the date hereof a and MergerCo true and correct copy copies of each the Material ContractContracts.
Appears in 2 contracts
Sources: Merger Agreement (H Power Corp), Merger Agreement (Plug Power Inc)
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains 3.10 sets forth a true, correct and complete list of all Material Contracts existing contracts (as defined a) involving an annual commitment or annual payment to or from the Transferred Subsidiaries of more than Fifty Thousand United States Dollars (US$50,000), (b) with respect to the Transferred Subsidiaries relating to any indebtedness for borrowed money or the deferred purchase price of property, (c) which limit or restrict in Section 3.1(p)(iiany respect any of the Transferred Subsidiaries from engaging in any line of business in any jurisdiction, (d) belowrelating to the acquisition or disposition of the Transferred Subsidiaries (whether by merger, sale of stock, sale of assets or otherwise) or (e) not made in the ordinary course of business and that are significant to the Transferred Subsidiaries, including all amendments thereto, to which the Company Seller or any of the Company its Subsidiaries is a party or by which it is bound (the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts ). Each Material Contract is legal, valid, binding and enforceable in accordance with third parties which would be reasonably expected its respective terms with respect to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company Seller or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company its Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the CompanySeller’s Knowledge, the each other parties theretoparty to such Material Contract, except as the case may be, in accordance with its terms, except to the extent that the enforcement thereof same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or other similar laws now or hereafter in effect relating to creditors’ Laws affecting the rights of creditors generally and subject to the Laws governing (Band all limitations on) general principles specific performance, injunctive relief and other equitable remedies. There are no existing defaults or breaches by Seller or any of equity (regardless its Subsidiaries under any Material Contract or any other contract to which Seller or any of whether enforceability its Subsidiaries is considered in a proceeding at law or in equity). Neither party and which relates to the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach Transferred Subsidiaries (or any event thatevents or conditions which, with notice or lapse of time or both, would constitute a material default or breach)) and, under the terms to Seller’s Knowledge, there are no such defaults (or events or conditions which, with notice or lapse of time or both, would constitute a default or breach) with respect to any such Material Contract. To the Knowledge of the Company, no counterparty third party to any Material Contract is or any such other contract, except in default each case defaults or breach, in any material respect, of such breaches that would not reasonably be expected to have a Material Contract. The Company has made available to Parent prior to Adverse Effect on the date hereof a true and correct copy of each Material ContractTransferred Subsidiaries.
Appears in 2 contracts
Sources: Acquisition Agreement (Wireless Facilities Inc), Acquisition Agreement (LCC International Inc)
Material Contracts. (ia) Schedule 4.19 of the Company Disclosure Schedule 3.1(p)(i) contains sets forth a list true and complete list, as of all the date hereof, of each of the Company’s Material Contracts (as defined true, correct and complete copies of which have been made available to Parent prior to the date of this Agreement, subject to the redaction of certain price, term and termination provisions of, and certain clearly marked exhibits and schedules to, such Contracts). As used in Section 3.1(p)(ii) below) this Agreement, “Material Contract” means each Contract, written or oral, to which the Company or any of the Company its Subsidiaries is a party or by which any of their respective properties or assets are bound,
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) that involves required payments or receipts by or to the Company and/or its Subsidiaries in an amount in excess of $250,000, except for any such Contract that may be canceled, without material penalty or other liability to the Company or any of the Company Subsidiaries is otherwise bound. A trueits Subsidiaries, correct and complete copy upon notice of each Material Contract has been furnished thirty calendar days or made available to Parent or its representatives.less;
(iiiii) Material Contracts that grants exclusivity, any right of first refusal or right of first offer or that limits or purports to limit the ability of the Company and or any Subsidiary of the Company Subsidiaries (“Material Contracts”) shall include:to compete with or obtain products or services from any Person or own, operate, sell, transfer or otherwise dispose of any material amount of assets or businesses or imposes similar restrictions;
(Aiv) that restricts the payment of dividends or distributions in respect of any Contracts with third parties which would be reasonably expected to involve payments to or from capital stock of the Company or its Subsidiaries, or the purchase, redemption or other acquisition of such capital stock;
(v) that relates to any acquisition or divestiture by the Company or any of its Subsidiaries of a Company Subsidiary business or any assets or capital stock of $1,000,000 or more in any twelve (12) month period, a Person and pursuant to which the Company or a any Subsidiary of the Company Subsidiary gathers, processes, treats, transports, stores, sells has any material continuing obligation (including any material indemnification obligation or purchases hydrocarbons any material obligation relating to an earn-out or the products therefromother similar payments);
(Bvi) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected purports to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more limit in any twelve (12) month period, other than Contracts relating to material respect either the sale type of obsolete or excess assets not required for the Company’s operations business in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Subsidiary of the Company Subsidiary assumed (or, after the Effective Time, Parent or guaranteed its Affiliates) may engage or the manner or locations in which any outstanding Debt of a third party them may so engage in any business; (including B) could require the disposition of any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or material assets or otherwise) by the Company or any Company Subsidiary line of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Subsidiary of the Company Subsidiary and which could reasonably require (or, after the payment Effective Time, Parent or its Affiliates); (C) grants “most favored nation” status that, following the Merger, would apply to Parent and/or its Affiliates; or (D) materially prohibits or limits the right of monies by the Company or any Subsidiary of the Company Subsidiary (or, after the Effective Time, Parent or its Affiliates) to the applicable sellers thereundermake, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property Rights;
(Gvii) that relates to indebtedness for borrowed money (including the issuance of any debt security), any capital lease obligations, any guarantee of such indebtedness or debt securities of any other Person, or any “keep well” or other agreement to maintain any financial statement condition of another Person;
(viii) that would prevent or materially impair the Company’s ability to consummate the Merger or other transactions contemplated hereby;
(ix) that is any joint venture or partnership agreement or other similar agreement or arrangement entered into with another Person relating to the formation, creation, operation, management or control of any partnership or joint venture;
(x) that relates to an investment in any other Person that either requires payments over the term of the investment in excess of $1,000,000 in value, whether in cash or assets, or pursuant to which the Company or its applicable Subsidiary has the right to designate one or more members to the board of directors or similar governing body of such Person (or its Affiliates) or other governance rights with respect to such Person (or its Affiliates); or
(xi) that is listed (or required to be listed) in Schedule 4.15(b) of the Company Disclosure Schedule.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) each joint ventureof the Material Contracts is valid and binding on the Company or its Subsidiaries, partnership or any as the case may be, and, to the knowledge of the Company, each other Contract involving a sharing of profits or losses by party thereto, and is in full force and effect, (ii) no event has occurred with respect to the Company or any of its Subsidiaries, and neither the Company Subsidiaries with nor any of its Subsidiaries, nor to the Company’s knowledge any other Person;
(H) each Contract with party to a Material Contract, has violated any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of moneyprovision of, or for taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a line default under the provisions of credit.
such Material Contract and (iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries has received notice from any other party to a Material Contract that it has breached, violated or defaulted under any Material Contract or that any such party intends to terminate, or not to renew, any such Material Contract. Neither the Company nor any of its Subsidiaries is a party to:
(A) to any Contract containing covenants that in any way purport to restrict provision or prohibit, covenant limiting in any material respect, respect the business activity ability of the Company or any of its Subsidiaries (or, after the Company Subsidiaries or materially limit the freedom consummation of the Company Merger, Parent, the Surviving Corporation or any of the Company Subsidiaries thereof their respective Subsidiaries) to (i) sell any products or services of or to any other Person or in any geographic region, (ii) engage in any line of business or to (iii) compete with or to obtain products or services from any Person; or
(B) Person or limiting the ability of any Contract that grants Person to a third Person a right of first refusal, option, preferential right provide products or similar right services to acquire properties or assets of the Company or any Company Subsidiary of its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Corporation or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiarytheir respective Subsidiaries).
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (LoopNet, Inc.), Merger Agreement (Costar Group Inc)
Material Contracts. (i) Section 5.1(r)(i) of the Company Disclosure Schedule 3.1(p)(iLetter lists or otherwise references a listing of the following Contracts to which, as of the date of this Agreement, the Company or any of its Subsidiaries is a party or by which any of them is bound (each, a “Material Contract”):
(A) contains any Contract that is required to be filed by the Company as a list “material contract” pursuant to Item 601(b)(10) of all Material Regulation S-K;
(B) any Contract of the Company or any of its Subsidiaries (other than purchase orders for the purchases of inventory, services or equipment in the ordinary course of business, this Agreement or Contracts subject to clause (as defined in Section 3.1(p)(iiD) below) having an aggregate value per Contract, or involving payments by or to the Company or any of its Subsidiaries, of more than $15,000,000 on an annual basis or $30,000,000 over the term of the Contract, except for any such Contract that may be cancelled without penalty by the Company or any of its Subsidiaries upon notice of ninety (90) days or less;
(C) any Contract containing covenants binding upon the Company or any of its Subsidiaries that restricts the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of the Surviving Corporation or any of its Affiliates) to engage in or compete in any business or with any Person or in any geographic area or distribution channel that the Company or its Subsidiaries currently engages in and that would be material to the Company and its Subsidiaries, taken as a whole, except for any such Contract that may be cancelled without penalty by the Company or any of its Subsidiaries upon notice of ninety (90) days or less;
(D) any Contract with respect to any joint venture, partnership or similar arrangements that is material to either the smokeless tobacco product or wine business segment of the Company and its Subsidiaries (the “Business Units”);
(E) any Contract that prohibits the payment of dividends or distributions in respect of capital stock of the Company or any of its Subsidiaries, prohibits the pledging of the capital stock of the Company or any of its Subsidiaries or prohibits the issuance of guarantees by the Company or any of its wholly-owned Subsidiaries;
(F) any Contract pursuant to which any indebtedness for borrowed money with a principal amount in excess of $10,000,000 of the Company or any of its Subsidiaries is outstanding or may be incurred, and all guarantees by the Company or any of its Subsidiaries of any indebtedness for borrowed money with a principal amount in excess of $10,000,000 of any Person (other than the Company or any wholly-owned Subsidiary of the Company);
(G) any Contract (or a related series of Contracts) for the acquisition or disposition by the Company or any of its Subsidiaries of assets (other than the purchase of grapes or tobacco) with a value of more than $10,000,000 or with respect to which the Company or any of the Company its Subsidiaries is a party has continuing indemnification, “earn-out” or by which the Company or any of the Company Subsidiaries is otherwise bound. A trueother contingent payment obligations, correct and complete copy of in each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which case, that would reasonably be reasonably expected to involve result in payments to or from the Company or a Company Subsidiary in excess of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom10,000,000;
(BH) any Contracts Contract providing for the construction of gathering indemnification or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment guaranty by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described thereof, where in clause (A) each case such indemnification obligation or (B) above) which would be reasonably expected guaranty is material to involve payments to or from the Company or and its Subsidiaries, taken as a Company Subsidiary of $1,000,000 or more in any twelve (12) month periodwhole, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable (x) any guaranty by the Company or a Company Subsidiary on sixty thereof of any of the obligations of (60i) days’ notice or less without payment by the Company or another wholly-owned Subsidiary thereof or (ii) any Subsidiary (other than a wholly-owned Subsidiary) of the Company Subsidiary that was entered into in the ordinary course of business pursuant to or in connection with a customer Contract or (y) any penaltyContract providing for indemnification of customers or other Persons pursuant to Contracts entered into in the ordinary course of business;
(DI) any Contracts under which Contract that contains any provision that requires the Company purchase of all of the Company’s or any Company Subsidiary assumed of its Subsidiaries’ requirements for a given product or guaranteed any outstanding Debt of service from a given third party (including any Company Member Interest Holder which product or Affiliate thereof)service is material to either of the Business Units;
(EJ) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) Contract that licenses to third parties any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses material Intellectual Property owned by the Company or any of its Subsidiaries (other than in the Company Subsidiaries with any other Personordinary course of business);
(HK) each any employment or consulting Contract with any directorcurrent or former (x) executive officer of the Company, officer(y) member of the Company Board or (z) Employee providing for an annual base salary in excess of $500,000;
(L) any Contract that (i) contains most favored customer pricing provisions which are material to either of the Business Units, memberor (ii) grants any exclusive rights or rights of first refusal which are material to either of the Business Units; and
(M) any Contract that would prevent, employee materially delay or Affiliate materially impair the Company’s ability to consummate the Merger or the other transactions contemplated by this Agreement.
(ii) The Company has made available to Parent correct and complete copies of all such Material Contracts. Each of the Material Contracts is valid and binding on the Company and each of its Subsidiaries party thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. There is no breach or default under any Material Contract by the Company or any of the Company its Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for to the Knowledge of the Company, any other party thereto and no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict breach or prohibit, in any material respect, the business activity of default thereunder by the Company or any of the Company its Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties any other party thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiaryeach case except as would not, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law individually or in equity). Neither the aggregate, reasonably be expected to have a Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ust Inc), Merger Agreement (Altria Group, Inc.)
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iiia) Except as set forth on in Section 3.9(a) of the Company Disclosure Schedule 3.1(p)(iii)Letter, as of the date of this Agreement, neither of the Company nor any of its Subsidiaries is a party to:
to or bound by (Aand none of their respective assets are bound by) any: (i) Contract (other than this Agreement) 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; (ii) indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of indebtedness for borrowed money or Contract providing for or guaranteeing indebtedness for borrowed money in excess of $15,000,000; (iii) Contract (other than this Agreement) for the sale of any of its assets after the date hereof (other than sales of inventory in the ordinary course of business); (iv) Contract containing covenants that contains a put, call, right of first refusal, right of first negotiation, right of first offer, redemption, repurchase or similar right pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests, businesses, lines of business, divisions, joint ventures, partnerships or other assets of any Person; (v) settlement agreement or similar Contract with a Governmental Entity or Order to which the Company or any of its Subsidiaries is a party involving future performance by the Company or any of its Subsidiaries in any way purport such case, which is material to restrict the Company or prohibitmaterial to the Company’s Subsidiaries, in taken as a whole; (vi) Contract providing for indemnification (including any material respect, obligations to advance funds for expenses) of the business activity current or former directors or officers of the Company or any of its Subsidiaries; (vii) to the Company Subsidiaries Knowledge of the Company, any collective bargaining agreement, or materially limit any other Contract (including any union “work rule” or “practice”) with any labor union, labor organization or works council; (viii) any Contract for capital expenditures or the freedom acquisition or construction of fixed assets which requires aggregate future payments in excess of $20,000,000; (ix) any Contract containing covenants of the Company or any of its Subsidiaries to indemnify or hold harmless another Person, unless such indemnification or hold harmless obligation to such Person contained in such Contract would not reasonably be expected to exceed a maximum of $25,000,000; (x) any Contract that limits or purports to limit the ability of the Company Subsidiaries thereof or any Subsidiary or Affiliate of the Company (including, following the Merger, Parent or any of its Affiliates) to engage compete in or conduct any line of business or to compete with any Person or in any geographic area or during any period of time; (xi) to the Knowledge of the Company, any license, royalty Contract or other Contract with respect to Intellectual Property Rights (other than generally commercially available, “off-the-shelf” software programs) which license, royalty Contract or other Contract, or which Intellectual Property, is material to the Company and its Subsidiaries, taken as a whole; (xii) (A) any Contract pursuant to which the Company or any of its Subsidiaries has entered into a partnership or joint venture with any other Person; or
, or (B) any collaboration, participation, off-set or similar Contract which, in the case of this clause (B), is material to the Company and its Subsidiaries, taken as a whole; (xiii) to the Knowledge of the Company, any Contract that (A) grants to a any third Person any material exclusive license or supply or distribution agreement or other similar material exclusive rights, (B) grants to any third Person any guaranteed availability of supply or services for a right of first refusalperiod greater than 12 months, optionand, preferential right or similar right in each case, requires aggregate payments to acquire properties or assets of the Company or any Company Subsidiary or any Contract that of its Subsidiaries in excess of $25,000,000 per annum, (C) grants to a any third party a power of attorney of Person any “most favored nation” rights and requires aggregate payments to the Company or any of its Subsidiaries in excess of $25,000,000 per annum or (D) grants to any third Person price guarantees for a period greater than 12 months and requires aggregate payments to the Company Subsidiaryor any of its Subsidiaries in excess of $25,000,000 per annum; (xiv) any Contract, other than a Company Plan, which requires payments by or to the Company or any of its Subsidiaries in excess of $5,000,000 per annum containing “change of control” or similar provisions; (xv) to the Knowledge of the Company, any material sole source supply Contracts; (xvi) any other Contract (other than this Agreement, purchase orders for the purchase of inventory in the ordinary course of business consistent with past practice or Contracts between the Company and any of its wholly owned Subsidiaries or between any of the Company’s wholly owned Subsidiaries) under which the Company and its Subsidiaries are obligated to make or receive payments in the future in excess of $50,000,000 per annum or $500,000,000 during the life of the Contract; or (xvii) any Contract the termination or breach of which, or the failure to obtain consent in connection with the Transactions in respect of which, would have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each such Contract described in clauses (i)-(xvii) is referred to herein as a “Material Contract.”
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)has not had and would not reasonably be expected to have, each individually or in the aggregate, a Material Contract is a valid and binding agreement of Adverse Effect, (i) neither the Company or the Company Subsidiary, as the case may be, party thereto nor any of its Subsidiaries is (and, to the Knowledge of the Company, no other party is) in default under any Material Contract, (ii) each of the counterparties thereto, and Material Contracts is in full force and effect effect, and is the valid, binding and enforceable against obligation of the Company and its Subsidiaries, and to the Knowledge of the Company, of the other parties thereto, except that such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar Laws affecting creditors’ rights generally and general principles of equitable relief, (iii) the Company and its Subsidiaries have performed all respective obligations required to be performed by them to date under the Material Contracts and are not (with or without the lapse of time or the applicable giving of notice, or both) in breach thereunder and (iv) neither the Company Subsidiarynor any of its Subsidiaries has received any notice of termination or breach with respect to, and, to the Knowledge of the Company, the other parties theretono party has threatened to terminate, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (United Technologies Corp /De/), Merger Agreement (Goodrich Corp)
Material Contracts. (a) Except for Contracts reflected as exhibits to its SEC Reports filed prior to the date of this Agreement or as set forth in Section 2.25 of the St. J▇▇▇▇▇ Disclosure Schedule, as of the date of this Agreement, neither St. J▇▇▇▇▇ nor any of its Subsidiaries, nor any of their respective assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, (i) Company Disclosure Schedule 3.1(p)(iany Contract relating to the borrowing of money by St. J▇▇▇▇▇ or any of its Subsidiaries or the guarantee by St. J▇▇▇▇▇ or any of its Subsidiaries of any such obligation (other than contracts pertaining to fully-secured repurchase agreements, and trade payables, and contracts relating to borrowings or guarantees made in the ordinary course of business), (ii) contains any Contract containing covenants that limit the ability of St. J▇▇▇▇▇ or any of its Subsidiaries to compete in any line of business or with any Person, or to hire or engage the services of any Person, or that involve any restriction of the geographic area in which, or method by which, St. J▇▇▇▇▇ or any of its Subsidiaries may carry on its business (other than as may be required by Law or any Governmental Authority), or any Contract that requires it or any of its Subsidiaries to deal exclusively or on a list “sole source” basis with another party to such Contract with respect to the subject matter of all such Contract, (iii) any Contract for, with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization or other business combination, or asset sale or sale of equity securities not in the ordinary course of business consistent with past practice, with respect to St. J▇▇▇▇▇ or any of its Subsidiaries, (iv) any other Contract or amendment thereto that would be required to be filed as an exhibit to any SEC Report (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the 1933 Act) that has not been filed as an exhibit to or incorporated by reference in St. Joseph’s SEC Reports filed prior to the date of this Agreement, (v) any lease of real or personal property providing for annual lease payments by or to St. J▇▇▇▇▇ or its Subsidiaries in excess of $25,000 per annum other than financing leases entered into in the ordinary course of business in which St. J▇▇▇▇▇ or any of its Subsidiaries is lessor, or (vi) any Contract that involves expenditures or receipts of St. J▇▇▇▇▇ or any of its Subsidiaries in excess of $25,000 per year not entered into in the ordinary course of business consistent with past practice. The contracts of the type described in the preceding sentence, whether or not in effect as of the date of this Agreement, shall be deemed “Material Contracts” hereunder. With respect to each of St. Joseph’s Material Contracts (i) that is reflected as defined in Section 3.1(p)(ii) below) an exhibit to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A trueSEC Report, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts would be required under Items 601(b)(4) and 601(b)(10) of Regulation S-K under the 1933 Act to be filed as an exhibit to any of its SEC Reports or (iii) that is disclosed in Section 2.25 of the Company and St. J▇▇▇▇▇ Disclosure Schedule, or would be required to be so disclosed if in effect on the Company Subsidiaries (“Material Contracts”) shall include:
date of this Agreement: (A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more each such Material Contract is in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
full force and effect; (B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company St. J▇▇▇▇▇ nor any of its Subsidiaries is a party to:
in “Default” thereunder with respect to each Material Contract, as such term or concept is defined in each such Material Contract; (AC) neither St. J▇▇▇▇▇ nor any Contract containing covenants that in any way purport to restrict of its Subsidiaries has repudiated or prohibit, in waived any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms provision of any such Material Contract. To the Knowledge of the Company, ; and (D) no counterparty other party to any such Material Contract is is, to St. Joseph’s knowledge, in default or breach, in any material respect. True copies of all Material Contracts, of such Material Contract. The Company has made available including all amendments and supplements thereto, that are not filed as exhibits to Parent prior SEC Reports are attached to the date hereof a true St. J▇▇▇▇▇ Disclosure Schedule.
(b) Neither St. J▇▇▇▇▇ nor any of its Subsidiaries have entered into any interest rate swaps, caps, floors, option agreements, futures and correct copy forward contracts, or other similar risk management arrangements, whether entered into for St. Joseph’s own account or for the account of each Material Contractone or more of its Subsidiaries or their respective customers.
Appears in 2 contracts
Sources: Merger Agreement (Old National Bancorp /In/), Merger Agreement (St Joseph Capital Corp)
Material Contracts. Except as disclosed in Section 5.16 of the ------------------ Quitman Disclosure Memorandum or otherwise reflected in the Quitman Financial Statements, none of the Quitman Entities, nor any of their respective Assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, (i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company any employment, severance, termination, consulting, or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A trueretirement Contract, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts any Contract relating to the borrowing of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) money by any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons Quitman Entity or the products therefrom;
(B) guarantee by any Contracts for the construction Quitman Entity of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty obligation (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale evidencing deposit liabilities, purchases of obsolete or excess assets not required for the Company’s operations in the Ordinary Course federal funds, fully-secured repurchase agreements, and Federal Home Loan Bank advances of Business depository institution Subsidiaries, trade payables and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to borrowings or guarantees made in the acquisition ordinary course of business), (by mergeriii) any Contract which prohibits or restricts any Quitman Entity from engaging in any business activities in any geographic area, purchase line of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries otherwise in competition with any other Person;
, (Hiv) each any Contract between or among Quitman 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 directorContract relating to the provision of data processing, officernetwork communication, memberor other technical services to or by any Quitman Entity, employee (vii) any Contract relating to the purchase or Affiliate 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 Quitman with the SEC as of the Company date of this Agreement that has not been filed as an exhibit to Quitman's Form 10-KSB filed for the fiscal year ended September 30, 2000, or any in an SEC Document and identified to Colony (the "Quitman Contracts"). With respect to each Quitman Contract and except as disclosed in Section 5.16 of the Company Subsidiaries; and
Quitman Disclosure Memorandum: (Ii) the Loan Agreements Contract is in full force and each effect; (ii) no Quitman Entity is in Default thereunder, other indenturethan Defaults which are not reasonably likely to have, mortgageindividually or in the aggregate, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
Quitman Material Adverse Effect; (iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict no Quitman Entity has repudiated or prohibit, in waived any material respect, the business activity provision of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Personsuch Contract; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
and (iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material no other party to any such Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto andis, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may beQuitman, in accordance with its termsDefault in any respect, except other than Defaults which are not reasonably likely to the extent that the enforcement thereof may be limited by (A) applicable bankruptcyhave, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law individually or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respectaggregate, a Quitman Material Adverse Effect, or has received written notice repudiated or waived any material provision thereunder. All of the indebtedness of any material default Quitman Entity for money borrowed is prepayable at any time by such Quitman Entity without penalty or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contractpremium.
Appears in 2 contracts
Sources: Merger Agreement (Colony Bankcorp Inc), Merger Agreement (Quitman Bancorp Inc)
Material Contracts. (i) Except for this Agreement, Section 3.01(o) of the Company Disclosure Schedule 3.1(p)(iLetter sets forth a true and complete list, as of the date of the Original Agreement, and the Company has made available to Parent true and complete copies of:
(A) contains each contract, lease, license, note, bond or other agreement (each, a list “Contract”) that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of all Material Contracts Regulation S-K under the Securities Act;
(as defined B) each employment, consulting, severance, termination and indemnification Contract between the Company or any of its Subsidiaries and director or officer of the Company or any such Subsidiary or other employee earning cash compensation in Section 3.1(p)(iiexcess of $100,000 per year;
(C) below) each Contract to which the Company or any of the Company its Subsidiaries is a party or by which that (I) materially restricts the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate ability of the Company or any of its Subsidiaries to compete in any business or with any person in any line of business or to offer, sell, license, supply or distribute any service or product, or (II) grants exclusive rights to any person, except for any such Contract that may be canceled, without material penalty or other liability to the Company or any of its Subsidiaries; and, upon notice of 90 days or less;
(ID) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither Contract to which the Company nor or any of its Subsidiaries is a party to:that may call for aggregate payments by the Company or any of its Subsidiaries of more than $500,000, except for any such Contract that may be canceled, without material penalty or other liability to the Company or any of its Subsidiaries, upon notice of 90 days or less;
(AE) each Contract to which the Company or any of its Subsidiaries is a party that calls for aggregate payments to the Company or any of its Subsidiaries of more than $500,000, provided, that if a Contract containing covenants that in does not specify an aggregate amount to be paid to the Company, then such Contract shall be disclosed pursuant to this subparagraph (E) if aggregate payments to the Company pursuant to such Contract over the last 12 months shall have exceeded $500,000; and
(F) each loan and credit agreement, letter of credit, note, debenture, bond, indenture and other similar Contract pursuant to which any way purport to restrict or prohibit, in any material respect, the business activity indebtedness of the Company or any of its Subsidiaries, in each case in excess of $100,000, is outstanding or may be incurred, other than any such Contract between or among the Company Subsidiaries or materially limit the freedom and any of its Subsidiaries. Each Contract of the Company or any of the Company Subsidiaries thereof type described in clause (A) through (F) above is referred to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to herein as a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary“Material Contract”.
(ivii) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)All Material Contracts are valid, each Material Contract is a valid binding and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect in all material respects. The Company is not, and is enforceable against the Company has not received any written notice or the applicable Company Subsidiary, and, to the has any Knowledge of the Company, the that any other parties thereto, as the case may beparty is, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or under any such Material Contract, and there has not occurred any event that, with notice or the lapse of time or the giving of notice or both, would constitute such a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contractdefault.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (BTP Acquisition Company, LLC), Agreement and Plan of Merger (Image Entertainment Inc)
Material Contracts. (ia) Company Section 5.11(a) of the CGI Disclosure Schedule 3.1(p)(i) contains sets forth a complete list of all Material Contracts (as defined in Section 3.1(p)(ii) below) each currently effective Contract to the extent relating to the Purchased Assets or the BioPharma Business and to which the Company or any of the Company Subsidiaries CGI is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent it or its representatives.assets are bound (each, a “BP Material Contract”):
(i) the top ten (10) Contracts as measured in terms of aggregate annual obligations of CGI in the last year, for the purchase of materials, supplies, goods, services, equipment or other assets (collectively, the “Top Suppliers”);
(ii) Material the top ten (10) Contracts as measured in terms of aggregate annual revenue earned by CGI in the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts last year for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete materials, supplies, goods, services, equipment or excess other assets not required for (collectively, the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof“Top Customers”);
(Eiii) (i) any outstanding futurespledge, swapsecurity agreement, collar, put, call, floor, cap, option, hedging, forward sale deed of trust or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or that impose an Encumbrance on any of the Company Subsidiaries with Purchased Assets, (ii) loan or credit agreement, indenture, debenture, note or other Contracts that create, incur or guarantee any Indebtedness secured by the Purchased Assets, except for those relating to less than $100,000, or (iii) Contracts under which CGI assumes, or otherwise becomes liable for, the obligations of any other Person;
(Hiv) each that relates to any partnership, joint venture, strategic alliance or other similar Contract affecting the BioPharma Business;
(v) which by its terms limits in any material respect (i) the localities, market or business in which all or any significant portion of the BioPharma Business, following the consummation of the transactions contemplated hereby is or would be conducted, (ii) the Persons CGI, may hire (other than Contracts with contract research organizations or other contractors or vendors that provide services to CGI in the ordinary course of CGI’s business and that contain provisions that prevent CGI from soliciting or hiring any personnel of such contract research organizations or such other contractors or vendors), (iii) the Persons to whom CGI may sell products or deliver services, or (iv) the scope of the BioPharma Business;
(vi) providing for the grant by or to CGI of any license to or under any Intellectual Property used in the BioPharma Business, other than (i) Contracts where the grant by or to CGI of any such license pursuant to such Contract is not material to CGI or the BioPharma Business, (ii) Contracts where the Intellectual Property licensed thereunder are licensed on a non-exclusive basis by or to a contractor, service provider or collaborator of CGI in the context of such contractor, service provider or collaborator rendering research and development services to CGI or for the benefit of CGI, and (iii) Contracts where the Intellectual Property material to the BioPharma Business licensed thereunder are licensed on a non-exclusive basis for research and the scope of the license to such Intellectual Property does not include the right to practice or use such Intellectual Property to sell or commercialize any product;
(vii) containing any grant by CGI to any Person of any express license to market or commercialize any product material to the BioPharma Business, including under any Patents (including any covenants not to s▇▇);
(viii) containing any royalty, dividend or similar arrangement with respect to a product material to the BioPharma Business based on the revenues or profits of CGI;
(ix) with any director, officer, member, employee Governmental Authority or Affiliate a subcontractor to any Governmental Authority in connection with such BP Material Contract;
(x) any agreement that gives rise to any material payment or benefit as a result of the Company performance of this Agreement or any of the Company Subsidiariesother transaction contemplated hereby;
(xi) relating to the acquisition or disposition of any material interest in, or any material amount of, property or assets of CGI or any other Person, or for the grant to any Person of any preferential rights to purchase any such property or assets;
(xii) any other agreement (or group of related agreements) the performance of which requires aggregate payments to or from CGI in excess of $100,000;
(xiii) establishing powers of attorney or agency agreements;
(xiv) all real property Leases used by the BioPharma Business;
(xv) any agreement for the leasing of equipment used in the BioPharma Business; and
(Ixvi) other than as set forth elsewhere in Section 5.11(a) of the Loan Agreements CGI Disclosure Schedule, and each excluding confidentiality and non-disclosure agreements entered into in connection with a sale process, all other indenture, mortgage, promissory note Contracts that are material to the BioPharma Business of CGI and commitments or other agreement or commitment for agreements to enter into any of the borrowing of money, or for a line of creditforegoing.
(iiib) Except as set forth on Company Disclosure Schedule 3.1(p)(iii)CGI has delivered or made available accurate and complete copies of all BP Material Contracts, neither including all amendments thereto. There are no BP Material Contracts that are not in written form. Other than payment defaults with respect to the Company Old Accounts Payable, CGI has not, nor to CGI’s Knowledge, has any of its Subsidiaries is other party to a party to:
(A) any BP Material Contract containing covenants materially breached, violated or defaulted under, or received notice that in any way purport to restrict it has materially breached, violated or prohibitdefaulted under, in any material respect, the business activity of the Company or any of the Company Subsidiaries terms or materially limit the freedom conditions of the Company or any of the Company Subsidiaries thereof BP Material Contract. As to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)CGI, each BP Material Contract is a valid valid, binding, enforceable and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiaryeffect, and, subject to the Knowledge Bankruptcy Exceptions. The consummation of the Company, transactions contemplated hereby will not (either alone or upon the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (Aoccurrence of additional acts or events) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach result in any material respect, payment or has received written notice payments becoming due from CGI or the Seller to any Person under any BP Material Contract or give any Person the right to terminate or alter the provisions of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such BP Material Contract. To the Knowledge of the Company, no counterparty No Person is renegotiating any material amount paid or payable to CGI under any BP Material Contract is in default or breach, in any other material respect, term or provision of such any BP Material Contract. The Company has made available No Person is renegotiating any material amount paid or payable to Parent prior to the date hereof a true and correct copy CGI under any BP Material Contract or any other material term or provision of each any BP Material Contract. For purposes of this Section 5.11(b) (other than the first sentence), “BP Material Contract” shall be deemed to include the Assumed BP Material Contracts, the Equipment Leases and the Undisclosed BP Material Contracts.
(c) The Top Customers collectively represent approximately fifty percent (50%) of the revenues the BioPharma Business received in the twelve (12) months ending December 31, 2018.
(d) The Top Suppliers collectively represent approximately sixty-nine percent (69%) of the spend the BioPharma Business incurred in the twelve (12) months ending December 31, 2018.
(e) Other than the Equipment Leases, there are no Contracts or equipment which are used, or held for use, by or service both the BioPharma Business and one or more Other Business Unit.
Appears in 2 contracts
Sources: Secured Creditor Asset Purchase Agreement (Interpace Diagnostics Group, Inc.), Secured Creditor Asset Purchase Agreement (Cancer Genetics, Inc)
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither Neither the Company nor any of its Subsidiaries is a party to:to any Contract required to have been filed with the SEC by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed.
(b) Section 2.7(b) of the Company Disclosure Schedule lists, as of the date of this Agreement, the following types of contracts and agreements to which the Company or any of its Subsidiaries is a party (such contracts and agreements as are required to be set forth on Section 2.7(b) of the Company Disclosure Schedule being the “Material Contracts”):
(i) each contract and agreement (A) with consideration paid or payable to the Company or any Contract containing covenants that in any way purport to restrict or prohibitof its Subsidiaries of more than $100,000, in the aggregate, and (B) with suppliers to the Company or any of its Subsidiaries for expenditures paid or payable by the Company or any of its Subsidiaries of more than $100,000, in the aggregate, in each case over the twelve (12)-month period ending December 31, 2022;
(ii) each Advisory Contract or other investment advisory, asset management or similar agreements entered into by the Company and its Subsidiaries, providing for revenues in excess of $100,000 per annum;
(iii) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising contracts and agreements to which the Company or any of its Subsidiaries is a party that are material respect, to the business activity of the Company;
(iv) all Service Agreements and management contracts, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of the Company its Subsidiaries or materially limit the freedom income or revenues related to any Product of the Company or any of its Subsidiaries to which the Company or any of its Subsidiaries thereof is a party;
(v) all Contracts providing for the development of any software or Intellectual Property Rights, independently or jointly, either by or for the Company or any of its Subsidiaries (other than employee invention assignment agreements and consulting agreements with authors on the Company’s or any of its Subsidiaries’ standard form of agreement);
(vi) all Contracts evidencing Indebtedness with a principal amount, or involving obligations, in excess of $100,000;
(vii) all partnership, joint venture, property management, profit sharing, carry interest or similar Contracts;
(viii) all Contracts with any Governmental Authority to engage which the Company or any of its Subsidiaries is a party, other than any Company Permits;
(ix) all Contracts that limit, or purport to limit, the ability of the Company or any of its Subsidiaries to compete in any line of business or to compete with any Person; orperson or entity or in any geographic area or during any period of time or to hire or retain any person;
(Bx) all Contracts that result in any person or entity holding a power of attorney from the Company or any of its Subsidiaries that relates to the Company and its Subsidiaries or their respective businesses;
(xi) all leases or master leases of personal property reasonably likely to result in annual payments of $50,000 or more in a twelve (12)-month period;
(xii) Contracts which involve the license or grant of rights to Company Owned IP by the Company or any of its Subsidiaries, but excluding any nonexclusive licenses (or sublicenses) of Company Owned IP granted to the Company’s clients in the ordinary course of business that are substantially in the same form as the Company’s or its Subsidiaries’ standard form Advisory Contracts as have been provided to Purchaser; and
(xiii) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) or any other contract that is material to the Company and its Subsidiaries, taken as a whole.
(i) Each Material Contract that grants to is a third Person a right of first refusallegal, option, preferential right or similar right to acquire properties or assets valid and binding obligation of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, its Subsidiaries party thereto and, to the Knowledge of the Company, is enforceable in accordance with its terms against the counterparties other parties thereto, there are no grounds for termination, rescission or repudiation of any Material Contract, and neither the Company nor any of its Subsidiaries is in full force and effect and is enforceable against material breach or violation of, or material default under, any Material Contract nor has any Material Contract been canceled by the Company or the applicable Company Subsidiary, and, other party; (ii) to the Knowledge of the Company, the no other parties theretoparty is in material breach or violation of, as the case may beor material default under, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally any Material Contract; and (Biii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor or any Company Subsidiary is in default or breach in of its Subsidiaries have not received any material respectwritten, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To to the Knowledge of the Company, no counterparty to oral claim of default under any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has furnished or made available to Parent prior Purchaser true and complete copies of all Material Contracts without redaction, including amendments thereto that are material in nature. The Company is not renegotiating or offering to renegotiate any Contract with a Top Customer in a way that would be materially adverse to the date hereof a true and correct copy of each Material ContractCompany.
Appears in 2 contracts
Sources: Second Tranche Stock Purchase Agreement (Siebert Financial Corp), Stock Purchase Agreement (Siebert Financial Corp)
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains XC has made available to FH a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct true and complete copy (or written summary of all material terms) of each Material Contract has been furnished or made available to Parent or its representativesin force on the date hereof and listed each such Material Contract on Section 2.20 of the XC Disclosure Letter.
(iib) Material Contracts For purposes of the Company and the Company Subsidiaries (this Agreement “Material Contracts”) shall include:
(A) Contract” means any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant Contract to which the Company XC or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party toto or by which XC, any of its Subsidiaries or any of their respective properties or assets is bound that:
(Ai) would be required to be filed by XC as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act,
(ii) contains any Contract containing covenants that in non-compete or exclusivity provision or otherwise limits the freedom of XC, any way purport of its Subsidiaries, or, to restrict the knowledge of XC, FH or prohibit, in any material respect, the business activity of the Company FX or any of their respective Subsidiaries after the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof Closing Date, to engage compete in any line of business or sell, supply, acquire, obtain or distribute any product or service, in each case, in any geographic area in a respect or to compete a degree that is material, other than any Contract that can be terminated (including such restrictive provisions) by XC or any of its Subsidiaries on ninety (90) (or fewer) days’ notice without payment by XC or any of its Subsidiaries of any material penalty, premium or other amount payable thereunder as a result of such termination and not in respect of amounts accrued but unpaid prior to such termination,
(iii) contains any “most favored nation” pricing provisions binding XC, any of its Subsidiaries, or, to the knowledge of XC, FH or FX or any of their respective Subsidiaries after the Closing Date, in a Contract with any Person; orThird Party, in a respect or to a degree that is material, other than any Contract that can be terminated (including such provision) by XC or any of its Subsidiaries on ninety (90) (or fewer) days’ notice without payment by XC or any of its Subsidiaries of any material penalty, premium or other amount payable thereunder as a result of such termination and not in respect of amounts accrued but unpaid prior to such termination,
(iv) is or relates to the Organizational Documents of any partnership, joint venture or similar arrangement to the extent such partnership, joint venture or similar arrangement is material to XC and its Subsidiaries, taken as a whole,
(v) (A) requires or provides for capital expenditures (or series of capital expenditures) by XC or any of its Subsidiaries in an amount in excess of $25 million individually or (B) requires or specifically provides for any annual payments or receipts by XC or any of its Subsidiaries in an amount in excess of $25 million, in each case other than (x) any Contract entered into in the ordinary course of business or (y) any Contract that can be terminated by XC or any of its Subsidiaries on ninety (90) (or fewer) days’ notice without payment by XC or any of its Subsidiaries of any material penalty or premium,
(vi) contains an option or grants to a third Person a any right of first refusalrefusal or right of first offer, option, preferential right of first negotiation or similar right in favor of a party other than XC or any of its Subsidiaries or that limits or purports to acquire limit the ability of XC or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses in a respect or to a degree that is material to XC and its Subsidiaries, taken as a whole,
(vii) involves the acquisition or disposition from or to another Person, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration in excess of $100 million (other than acquisitions or dispositions (x) of inventory in the ordinary course of business or (y) of capital stock of XC) entered into on or after January 1, 2017 or that contains material “earn-out”, indemnification or other contingent or deferred payment obligations that would reasonably be expected to involve payments by or to XC or any of its Subsidiaries after the date of this Agreement in excess of $100 million (in each case, other than acquisitions or dispositions of supplies, inventory, merchandise, products, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of XC or its Subsidiaries),
(viii) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than those among XC and its Subsidiaries) made or entered into outside the Company ordinary course of business relating to indebtedness in excess of $10 million,
(ix) is with a top five (5) customer of XC and its Subsidiaries, taken as a whole, with respect to aggregate revenue from such customer during the year ended December 31, 2017, pursuant to which XC or its Subsidiaries supply products and/or services to such customer, excluding, purchase orders;
(x) is with a top five (5) supplier of XC and its Subsidiaries, taken as a whole, with respect to aggregate expenditures by XC and its Subsidiaries during the year ended December 31, 2017, pursuant to which XC or its Subsidiaries procure products and/or services from such supplier, excluding, purchase orders;
(xi) is a settlement, conciliation or similar agreement, other than any such agreement that (x) would require XC or any Company Subsidiary of its Subsidiaries to pay consideration of less than $10 million after the date of this Agreement and (y) is limited only to the payment of money and customary confidentiality agreements,
(xii) expressly limits the ability of XC or any Contract that grants to a third party a power of attorney its Subsidiaries from (A) making distributions or declaring or paying dividends in respect of the Company their capital stock, partnership interests, membership interests or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiaryother equity interest, as the case may be, party thereto and(B) making loans to XC or any of its Subsidiaries or (C) granting Liens on the property of XC or any of its Subsidiaries,
(xiii) constitutes a lease, sublease, license agreement, occupancy agreement or other Contract pursuant to which XC or any of its Subsidiaries leases, subleases or licenses from another Person, or is otherwise granted a right to occupy, any material real property,
(xiv) constitutes or includes a license or non-assertion covenant granted by XC or any of its Subsidiaries to a Third Party with respect to XC Intellectual Property, which license or covenant is material to XC and its Subsidiaries, taken as a whole, excluding “shrink-wrap,” “click-wrap” or similar form end user agreements or licenses or covenants granted to customers in the Knowledge ordinary course of business,
(xv) constitutes or includes a license or non-assertion covenant granted by a Third Party to XC or any of its Subsidiaries with respect to any Intellectual Property Rights, which license or covenant is material to XC and its Subsidiaries, taken as a whole, excluding commercial off-the-shelf or other non-exclusive software or technology license agreements, or
(xvi) is (x) a written employment agreement or (y) a consulting, independent contractor or non-employee service provider agreement with an individual, in each case that provides for the payment by XC or any of its Subsidiaries of more than $350,000 in any 12-month period; provided; that, for the avoidance of doubt, “Material Contracts” shall not include any Contract entered into in connection with the Dividend Loan.
(c) Except for breaches, violations or defaults which have not had and would not reasonably be expected to be, individually or in the aggregate, material to XC and its Subsidiaries, taken as a whole:
(i) each of the Company, the counterparties thereto, Material Contracts is valid and is binding and in full force and effect and is an enforceable against the Company obligation of XC or the applicable Company Subsidiary, any of its Subsidiaries and, to the Knowledge knowledge of XC, of the Company, the other party or parties thereto, as the case may be, in accordance with its terms,
(ii) XC and each of its Subsidiaries, except and, to the extent that the enforcement thereof may knowledge of XC, each other party thereto, has performed all obligations required to be limited performed by it under each Material Contract, and
(Aiii) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company neither XC nor any Company Subsidiary is in default or breach in of its Subsidiaries, nor to the knowledge of XC, any material respectother party to a Material Contract, has violated any provision of, or has received written notice of taken or failed to take any material default or breach (or any event thatact which, with notice or without notice, lapse of time time, or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, provisions of such Material Contract. The Company , and neither XC nor any of its Subsidiaries has made available to Parent prior to the date hereof a true and correct copy of each received written notice that it has breached, violated or defaulted under any Material Contract.
Appears in 2 contracts
Sources: Share Subscription Agreement, Share Subscription Agreement (Xerox Corp)
Material Contracts. (ia) Except for this Agreement or as set forth in Section 3.16 of the Company Disclosure Schedule 3.1(p)(i) contains a list Schedules, none of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party to or bound by which (each a “Company Material Contract”):
(i) any 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 promulgated by the SEC, other than those agreements and arrangements described in Item 601(b)(10)(iii);
(ii) any Contract with a related person (as defined in Item 404 of Regulation S-K of the Securities Act) that would be required to be disclosed in the Company SEC Reports but has not been disclosed;
(iii) any Contract for the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of $20,000,000;
(iv) except for agreements relating to trade receivables, loans to Company Subsidiaries in the ordinary course of business and extensions of credit to customers in the ordinary course of business, any Contract relating to Indebtedness, in each case having a principal amount in excess of $10,000,000;
(v) any Contract that purports to (A) materially limit or otherwise materially restrict the ability of the Company or the Company Subsidiaries to compete in any business or geographic area or exploit any Company Intellectual Property, (B) prohibit the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more engaging in any twelve (12) month periodbusiness with any Person or levying a fine, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering charge or other pipeline systems payment for doing so, or processing(C) containing “most favored nation,” “exclusivity” or similar provisions, compression, treating or storage facilities in each case other than any such Contracts that are reasonably expected (1) may be cancelled without material liability to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable the Company Subsidiary on sixty (60) days’ Subsidiaries upon notice of 90 days or less without payment by or (2) are not material to the Company or any and the Company Subsidiary of any penaltySubsidiaries, taken as a whole;
(Cvi) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required Contract providing for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary indemnification of any penalty;
(D) any Contracts under which the Company officer, director or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses employee by the Company or any of the Company Subsidiaries with any other PersonSubsidiaries;
(Hvii) each any Contract with that is a settlement or similar agreement that imposes obligations material to the Company and the Company Subsidiaries, taken as a whole, after the Agreement Date;
(viii) any directoremployment, officermanagement, memberseverance, employee retention, transaction bonus, change in control, consulting, relocation, repatriation or Affiliate expatriation Contract not terminable at will by the Company or one of the Company Subsidiaries pursuant to which the Company or any one of the Company SubsidiariesSubsidiaries has continuing obligations of $400,000 or more as of the Agreement Date with any executive officer or other employee at the senior vice president level or above, or any member of the Company Board; and
(Iix) the Loan Agreements and each other indentureany Contract that involves a joint venture, mortgage, promissory note limited liability company or other agreement or commitment for the borrowing of money, or for a line of credit.partnership with any third Person; and
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(Ax) any Contract containing covenants that in any way purport to restrict support, maintenance or prohibit, in any material respect, service obligation on the business activity part of the Company or any of the Company Subsidiaries or materially limit that represents revenue in excess of $10,000,000 on an annual basis, other than those Contracts that may not be cancelled by the freedom of Company without material liability to the Company or any of the Company Subsidiaries thereof to engage in any line upon notice of business 90 days or to compete with any Person; orless.
(Bb) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets Each of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and Contracts is in full force and effect effect, and is enforceable against represents a valid and binding obligation of the Company or the applicable a Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, enforceable in accordance with its terms, except to the extent that the enforcement thereof as such enforceability may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or other similar laws now or hereafter in effect relating to Laws affecting the enforcement of creditors’ rights generally generally, and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law in Law or in equity). Neither the Company nor any Company Subsidiary is in breach of or default under any Company Material Contract, nor, to the Company’s Knowledge, is any other party to such Company Material Contract, excluding, however, any breach or default which would not have a Company Material Adverse Effect. To the Company’s Knowledge, neither the Company nor any of the Company Subsidiaries has received any written notice or other communication regarding any actual or possible material violation or material breach of or material default under, or intention to cancel or modify in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to excluding, however, any violation, breach or default which would not have a Company Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (SolarWinds, Inc.), Merger Agreement (SolarWinds, Inc.)
Material Contracts. (a) Except for this Agreement, for Contracts filed as exhibits to the Company Reports or as disclosed in Section 3.15(a) of the Company Disclosure Schedule, as of the date of this Agreement (i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to, and (ii) none of the Company, any of its Subsidiaries, or any of their respective properties, assets or rights is bound by:
(Ai) any Contract containing covenants that in is or would be required to be filed by the Company as a “material contract” with the SEC pursuant to Item 601(b)(10) of Regulation S-K or disclosed by the Company on Form 8-K;
(ii) any way purport limited liability company agreement, joint venture or other similar agreement or arrangement relating to restrict the formation, creation, operation, management or prohibit, in control of any partnership or joint venture (excluding any Teaming Agreement) that is material respect, to the business activity of the Company and its Subsidiaries, taken as a whole, other than any such limited liability company, partnership or joint venture that is a Subsidiary of the Company;
(iii) any Contract (other than among consolidated Subsidiaries of the Company or capital or operating leases) relating to (x) indebtedness for borrowed money or (y) any interest rate, currency or commodity derivatives or hedging transactions;
(iv) any Contract (other than any Teaming Agreement) that purports to limit the right of the Company or any of the Company its Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage or compete in any line of business or to compete with any Person; orPerson or operate in any location, in each case in any respect material to the business of the Company and its Subsidiaries, taken as a whole;
(Bv) any Contract that grants entered into since the Applicable Date relating to a third Person a right of first refusalan acquisition, optiondivestiture, preferential right merger or similar right to acquire properties transaction that contains representations, covenants, indemnities or assets other obligations (including payment, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) of the Company or any of its Subsidiaries that are still in effect and would reasonably be expected to result in payments by the Company Subsidiary or any of its Subsidiaries in excess of $250,000;
(vi) any Contract that grants obligates the Company to a third party a power make any capital commitment or expenditure (including pursuant to any joint venture) in excess of attorney $1,000,000;
(vii) any individual Contract with an employee of the Company or any Company Subsidiary.of its Subsidiaries that provides for compensation in any fiscal year that is equal to or greater than $400,000 (excluding any compensation related to expatriate costs and expenses, such as expatriate allowance, expatriate bonus, assignment completion bonus, post differential/hardship pay, post or cost of living allowance, education allowance, housing or living quarters allowance, relocation expenses, repatriation allowance, automobile allowance, language courses and orientation, travel costs, cost for tax assistance and preparation, and temporary housing costs), other than any offer letter or similar employment arrangement that can be terminated without express liability post-termination other than severance paid in the ordinary course of business; and
(ivviii) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material any Contract is a valid and binding agreement that prohibits the pledging of capital stock of the Company or any Subsidiary of the Company Subsidiary, as or prohibits the case may be, party thereto and, to the Knowledge issuance of guarantees by any Subsidiary of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Providence Equity Partners VI L P), Merger Agreement (Sra International Inc)
Material Contracts. (a) Except for this Agreement and for the Contracts disclosed in the Filed Company SEC Documents, Section 4.13(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, and the Company has made available to Parent true and complete copies, of:
(i) each Contract that would be required to be filed by the Company Disclosure Schedule 3.1(p)(ias a “material contract” pursuant to Item 601(b)(10) contains a list of all Material Contracts Regulation S-K under the Securities Act;
(as defined in Section 3.1(p)(iiii) below) each Contract to which the Company or any Company Subsidiary is a party that (A) restricts the ability of the Company or any Company Subsidiary to compete in any business or with any Person in any geographical area, (B) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party (C) provides for “exclusivity” or any similar requirement in favor of any third party or (D) provides preferential rights or rights of first or last offer or refusal to any third party, except in the case of each of clauses (B), (C) and (D) for such restrictions, requirements and provisions that are not material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract under which the Company or any Company Subsidiary (A) (x) licenses or sublicenses Intellectual Property from or to any third party (other than (1) licenses or sublicenses of generally commercially available off-the-shelf software programs, or (2) non-exclusive licenses or sublicenses to customers in the ordinary course of business consistent with past practice) or (y) since January 31, 2019, assigned or acquired Intellectual Property to or from any third party, in the case of each of clauses (x) and (y), except for such assignments, licenses and sublicenses that are not material to the Company and the Company Subsidiaries, taken as a whole, or (B) is subject to any material restriction affecting material Intellectual Property owned by the Company or any Company Subsidiary;
(iv) each Contract that constitutes a commitment relating to Indebtedness for borrowed money or the deferred purchase price of property by the Company or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in excess of $2 million, other than Contracts solely between or among the Company or any Company Subsidiary;
(v) each Contract under which the Company or any Company Subsidiary is the landlord, sublandlord, tenant, subtenant or occupant with respect to any material real property leased, subleased, licensed or otherwise occupied;
(vi) other than with respect to an entity that is wholly owned by the Company or any of the Company Subsidiaries, each partnership, joint venture or operating or limited liability company agreement, in which the Company or any Company Subsidiaries holds an interest;
(vii) each Contract that is a settlement, conciliation or similar Contract that would require the Company or any of the Company Subsidiaries is a party to pay consideration of more than $2 million after the date of this Agreement or by which that contains continuing restrictions on the Company or any of the Company Subsidiaries is otherwise bound. A true, correct business and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts operations of the Company and the Company Subsidiaries that are material to the business of the Company and the Company Subsidiaries, taken as a whole;
(“Material Contracts”viii) shall include:each Contract that obligates the Company or any Company Subsidiary to make any future capital investment or capital expenditure outside the ordinary course of business and in excess of $2 million individually or $10 million in the aggregate;
(ix) each Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any Company Subsidiaries;
(x) each Contract entered into since January 31, 2019 that (A) any Contracts with third parties which would be reasonably expected to involve payments to provides for the acquisition or from disposition by the Company or any Company Subsidiaries of any business or material assets (whether by merger, sale of stock, sale of assets or otherwise) with a Company Subsidiary value in excess of $1,000,000 5 million or more (B) pursuant to which the Company or any Company Subsidiaries acquired or will acquire any material ownership interest in any twelve other Person or other business enterprise other than any Company Subsidiary, in each case, under which the Company or any Company Subsidiaries has obligations remaining to be performed as of the date hereof;
(12xi) month periodeach Contract that is with (A) each of the ten (10) largest customers of the Company and the Company Subsidiaries, taken as a whole (the “Material Customers”) and (B) each of the ten (10) largest commercial vendors of the Company and the Company Subsidiaries, taken as a whole (the “Material Vendors”), in each case by dollar amount for the fiscal year ending January 31, 2021.
(xii) each Contract that provides for (A) indemnification of any officer, director or employee by the Company, other than Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Parent or (B) accelerated vesting in connection with a change of control, including the Transactions (including as a result of any termination of employment following a change of control, including the Transactions);
(xiii) each collective bargaining agreement or other Contract with any labor union, labor organization, or works council; and
(xiv) any Contract that is a settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which the Company or a Subsidiary will have any material outstanding obligation after the date of this Agreement. Each such Contract described in clauses (i) through (xiv) above is referred to herein as a “Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;Specified Contract.”
(Bb) any Contracts for As of the construction date of gathering or other pipeline systems or processingthis Agreement, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations each of the Company or any Company Subsidiary Specified Contracts is valid, binding and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth enforceable on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company SubsidiarySubsidiaries, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the each other parties party thereto, and is in full force and effect (i) except for such failures to be valid, binding or enforceable or to be in full force and effect as would not reasonably be expected to, individually or in the case may beaggregate, in accordance with its terms, have a Company Material Adverse Effect and (ii) except to the extent that the enforcement thereof insofar as such enforceability may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or other similar laws now or hereafter in effect Laws of general applicability relating to or affecting creditors’ rights generally and (B) general rights, or by principles governing the availability of equity (regardless of equitable remedies, whether enforceability is considered in a proceeding Proceeding at law or in equity). Neither As of the Company nor any Company Subsidiary is in default or breach in any material respectdate of this Agreement, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To to the Knowledge of the Company, there is no counterparty default under any Company Specified Contract by the Company or the Company Subsidiaries or any other party thereto, and no event has occurred that (with or without notice or lapse of time, or both) would constitute a default thereunder by the Company or any Company Subsidiary or, to the Knowledge of the Company, any other party thereto, in each case except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
(c) To the Knowledge of the Company as of the date of this Agreement, since the date of the Company Balance Sheet, the Company has not received any written or, to the Knowledge of the Company, oral notice from or on behalf of any Material Customer indicating that such Material Customer intends to terminate or not renew, any current term of any Material Contract is in default or breach, in any material respect, of with such Material Contract. The Customer.
(d) To the Knowledge of the Company as of the date of this Agreement, since the date of the Company Balance Sheet, the Company has made available to Parent prior not received any written or, to the date hereof a true and correct copy Knowledge of each the Company, oral notice from or on behalf of any Material ContractVendor indicating that such Material Vendor intends to terminate, or not renew, any Material Contract with such Material Vendor.
Appears in 2 contracts
Sources: Merger Agreement (Qad Inc), Merger Agreement (Qad Inc)
Material Contracts. (ia) Section 3.13(a) of the Company Disclosure Schedule 3.1(p)(i) contains Letter sets forth a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) of the date of this Agreement. For purposes of this Agreement, “Material Contract” means any Contract to which the Company or any of the Company its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound (other than this Agreement and the Company Benefit Plans) that:
(i) relates to the formation, creation, governance or control of, or the economic rights or obligations of the Company or any of its Subsidiaries in, any joint venture, partnership or other similar arrangement that is otherwise bound. A truematerial to the business of the Company and its Subsidiaries, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.taken as a whole;
(ii) Material Contracts provides for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $ 750,000, other than (A) Indebtedness solely between or among any of the Company and any of its Subsidiaries and (B) letters of credit;
(iii) relates to the employment, severance, retention or indemnification of any employee of the Company or any of its Subsidiaries that receives compensation in an amount in excess of $250,000 per annum;
(“Material Contracts”iv) shall include:
relates to the acquisition or disposition of any business, assets or properties (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract in excess of $ 750,000 (A) that was entered into after January 1, 2013, or (B) pursuant to which any Contracts with third parties which earn-out, indemnification or deferred or contingent payment obligations remain outstanding that would reasonably be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penaltyits Subsidiaries of more than $250,000;
(Cv) any Contracts (not described prohibits the payment of dividends or distributions in clause (A) or (B) above) which would be reasonably expected to involve payments to or from respect of the capital stock of the Company or a Company Subsidiary any of $1,000,000 or more in any twelve (12) month periodits Subsidiaries, other than Contracts relating to prohibits the sale pledging of obsolete or excess assets not required for the Company’s operations in the Ordinary Course capital stock of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice any of its Subsidiaries or less without payment prohibits the issuance of any guarantee by the Company or any Company Subsidiary of any penaltyits Subsidiaries;
(Dvi) any Contracts under which is (or contains provisions described in this clause (vi) that are or would reasonably be expected to be) material to the business of the Company and its Subsidiaries, taken as a whole, and contains provisions that prohibit the Company or any of its Subsidiaries from competing in or conducting any line of business or grants a right of exclusivity or “most favored nation” right to any person that prevents the Company Subsidiary assumed or guaranteed any outstanding Debt of a third party its Subsidiaries from entering any territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwisesuch restrictive provisions) by the Company or any Company Subsidiary of its Subsidiaries upon notice of ninety (90) days or less;
(vii) relates to any operating business real property owned or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies leased by the Company or any Company Subsidiary to the applicable sellers thereunderits Subsidiaries;
(Gviii) each joint ventureto which any Card Network, partnership Regions Bank or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other PersonBIN sponsor bank is party;
(Hix) each Contract relates to an agreement with any director(a) Emdeon Business Services LLC or its Affiliates, officer, member, employee or Affiliate (b) one of the Company top ten (10) resellers (based on revenues derived from such resellers during the twelve-month period ending on December 31, 2013), or any (c) one of the Company Subsidiaries; and
top ten (I10) fuel merchants (based on revenues derived from such fuel merchants during the Loan Agreements and each other indenturetwelve-month period ending on December 31, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii2013), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(x) (A) is not otherwise covered by clauses (i) through (ix) of this Section 3.13(a) and (B) any Contract that grants either (x) is with a vendor or supplier pursuant to which the Company and its Subsidiaries made payments of $1 million or more in the twelve-month period ending on May 31, 2014, or (y) is with a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets top ten (10) customer of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of and its Subsidiaries (based on revenues derived from such customers during the Company or any Company Subsidiarytwelve-month period ending on December 31, 2013) for each Business Line.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each All of the Material Contract is a Contracts are valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against (except those that terminate or are terminated after the Company or the applicable Company Subsidiary, and, to the Knowledge date of the Company, the other parties thereto, as the case may be, this Agreement in accordance with its their respective terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to Person is challenging the validity or enforceability of any Material Contract is in default or breach, in any material respect, of such Material Contract. The Neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company, any of the other parties thereto, has violated any provision of, or committed or failed to perform any act which (with or without notice, lapse of time or both) would constitute a material default under any provision of, and neither the Company nor any of its Subsidiaries has received written notice that it has violated or defaulted under, any Material Contract. Company has made available delivered to Parent prior to the date hereof a true and correct complete copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Fleetcor Technologies Inc)
Material Contracts. (i) Except for this Agreement and except for Contracts filed as exhibits to the Company Disclosure Schedule 3.1(p)(iReports, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(A) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(B) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, of more than RMB 50,000,000 in any calendar year on its face;
(C) any Contract that contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) put, call or similar right pursuant to which the Company or any of the Company its Subsidiaries is a party could be required to purchase or by which the Company or sell, as applicable, any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary equity interests of any penalty;
(C) any Contracts (not described in clause (A) Person or (B) above) which would be reasonably expected to involve payments to assets that have a fair market value or from the Company or a Company Subsidiary purchase price of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penaltyRMB 30,000,000;
(D) any Contracts under which Contract relating to the Company formation, creation, operation, management or control of any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof)joint venture;
(E) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale Shares required to be disclosed pursuant to Item 7B or other derivative Contracts involving hydrocarbons or other commodities;Item 19 of Form 20-F under the Exchange Act; and
(F) any Contracts relating non-competition Contract or other Contract that limits or purports to limit in any material respect the acquisition (by merger, purchase type of stock or assets or otherwise) by business in which the Company or any Company Subsidiary its Subsidiaries may engage, the type of any operating business goods or equity interests of any other Person services which contain continuing obligations of the Company or its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the manner or locations in which any of them may so engage in any business or use their assets. Each such Contract described in clauses (A) through (F) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company Subsidiary Reports is referred to herein as a “Material Contract”.
(ii) Except as is not, individually or in the aggregate, a Material Adverse Effect, (A) each of the Material Contracts is valid and which could reasonably require the payment of monies by binding on the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company its Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the each other parties party thereto, as the case may be, and is in accordance with its terms, except full force and effect subject to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally Bankruptcy and Equity Exception; and (B) general principles of equity (regardless of whether enforceability there is considered in a proceeding at law no breach or in equity). Neither default under any Material Contracts by the Company nor any Company Subsidiary is in default or breach in any material respect, or its Subsidiaries and no event has received written notice of any material default or breach (or any event that, occurred that with notice or the lapse of time or both, the giving of notice or both would constitute a material breach or default thereunder by the Company or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contractits Subsidiaries.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (China GrenTech CORP LTD), Merger Agreement (China GrenTech CORP LTD)
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i3.1(p) contains sets forth a true and complete list of all Material the following Contracts (as defined each a "Material Contract" and collectively, the "Material Contracts"):
(A) all joint operating or development agreements or similar Contracts that apply to Properties that, in Section 3.1(p)(iithe aggregate, represent not less than 95% of the aggregate Maximum Title Deficiency Amount;
(B) below) all Contracts that pertain to which the provision of drilling services to any Company or with respect to any of the Properties;
(C) all Contracts that concern the purchase and sale, gathering, transportation, compression or processing of Hydrocarbons or similar Contracts relating to or included in the Properties that are operated by a Company Subsidiaries and that are (x) not terminable without penalty on ninety or less days notice or (y) can be reasonably expected to result in aggregate monthly revenues to the Companies of more than $25,000 (based solely on the terms thereof and without regard to any expected increase in volumes or revenues) during the current or any subsequent calendar year;
(D) any indenture, mortgage, loan, credit or sale leaseback or similar financial Contract to which any Company is a party or to which any Property is subject;
(E) all leases (other than a Lease) under which any Company is the lessor or the lessee of real or personal property which lease (x) cannot be terminated by such Company without penalty or payment upon sixty or less days notice or (y) involves an annual base rental of more than $100,000;
(F) all hedging or swap Contracts to which any Company is a party or by which the any assets of any Company is bound;
(G) any employment, severance, retention, termination or consulting Contract or Plan between any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material any other Person other than any consulting Contract has been furnished that can be terminated by such company without penalty or made available to Parent payment upon sixty or its representativesless days notice.
(ii) Material Contracts Other than preferential rights of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected purchase and/or rights to involve payments consent to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month periodtransfer, pursuant as to which the Company or a Company Subsidiary gathersno representation is made, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable there exist no material defaults by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of under any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto andor, to the Knowledge of the CompanySellers, the counterparties theretoby any other Person that is a party to such Material Contract, and is in full force and effect and is enforceable against the no Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of (A) any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is or (B) any other Claim under any Material Contract that would reasonably be expected to result in default a material loss to a Company or breach, in any material respect, the termination of such Material Contract. The Company has Companies are in compliance with the material terms of all Material Contracts. Material Contracts under this Section 3.1 (p)(ii) does not include any Leases.
(iii) True and complete copies (including all amendments thereto) of each Material Contract have been or will be made available to Parent Purchaser prior to or promptly following the date hereof a true and correct copy of each Material Contractthis Agreement.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Linn Energy, LLC)
Material Contracts. (a) Section 4.4(a) of the Sellers Disclosure Schedule sets forth, as of the date hereof:
(i) Company Disclosure Schedule 3.1(p)(i) contains in respect of any customer of the Business which, in the most recent completed fiscal year of the Main Sellers resulted in, or is reasonably expected by the Main Sellers in 2009 to result in, the payment to or receipt by the Business of more than $10,000,000 per annum from such customer taken on an aggregate basis, a true and complete list of all Material Contracts every written contract with such customer (as defined in Section 3.1(p)(iiother than purchase orders issued thereunder) below) that relates to the Business and to which the Company or any of the Company Subsidiaries a Seller is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.party; and
(ii) Material Contracts in respect of any supplier of the Company Business which, in the most recent completed fiscal year of the Main Sellers resulted in, or is reasonably expected by the Main Sellers in 2009 to result in, the payment by the Business of more than $10,000,000 per annum to such supplier, taken on an aggregate basis, a true and complete list of every written contract with such supplier (other than purchase orders issued thereunder) that relates to the Company Subsidiaries Business and to which a Seller is a Party.
(“Material Contracts”b) Section 4.4(b) of the Sellers Disclosure Schedule sets forth, as of the date hereof, a true and complete list of every Seller Contract, in each case other than purchase orders and invoices (which shall includebe deemed to be a part of the Seller Contract under which such purchase order or invoice is issued) that:
(Ai) any Contracts with third parties in respect of the Business, is (x) a non-competition agreement or other agreement which would be reasonably expected to involve payments to or otherwise materially restricts the Seller party thereto from the Company or a Company Subsidiary of $1,000,000 or more engaging in any twelve (12) month period, pursuant to which business activity anywhere in the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) world or (By) above) which would be reasonably expected to involve payments to an exclusive distribution agreement (whether such agreement is exclusive by geography, product type or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereofotherwise);
(Eii) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale creates a material joint venture or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations partnership in respect of the Company Business or any Company Subsidiary and which could reasonably require otherwise involves the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits profits, losses, costs or losses by the Company or any liabilities in respect of the Company Subsidiaries Business with any other Person;
(Hiii) each is a research and development Contract with any directorthat, officer, member, employee or Affiliate in respect of the Company Business, involves consideration or expenditures, in the most recent completed fiscal year of the Main Sellers (or is reasonably expected by the Main Sellers under the terms of such Contract in 2009 to be) in excess of $2,000,000 or requiring such expenditures of more than $2,000,000 in the aggregate after the date hereof;
(iv) is a distribution or reseller Contract that, in respect of the Business, involves the sale or distribution of Products, in the most recent completed fiscal year of the Main Sellers that is (or is reasonably expected by the Main Sellers under the terms of such Contract in 2009 to be) valued at more than $10,000,000;
(v) is a distribution or reseller Contract that, in respect of the Business, contains any express inventory repurchase requirement (whether contingent or otherwise);
(vi) is a Contract between the Business and the Sellers or any of the Company Subsidiaries; andtheir Affiliates (other than agreements related to Overhead and Shared Services or agreements which will be terminated prior to or at Closing);
(Ivii) relates to Indebtedness (including personal property leases) in excess of $1,000,000 to be assumed by the Loan Agreements Purchaser or a Designated Purchaser;
(viii) has a “take or pay” or “requirements” provisions committing the Seller party thereto to purchase, in respect of the Business, goods or services in excess of $10,000,000 in 2009 or any calendar year thereafter;
(ix) contains any material obligation secured by a Lien on any material Asset (other than a Permitted Encumbrance or any encumbrance that will be released prior to or at Closing); or
(x) involves capital expenditures in respect of the Business in excess of $2,000,000 after the date hereof. The Customer Contracts and each other indenturethe Seller Contracts set forth in Section 4.4(a) and Section 4.4(c), mortgagetogether with such Seller Contracts exclusive to the Business as are entered into, promissory note or other agreement or commitment for pursuant to Section 5.9, after the borrowing date hereof that would have been required to be set forth in Section 4.4(a) and Section 4.4(b) of moneythe Sellers Disclosure Schedule had they been in effect as of the date hereof, or for a line of creditare collectively referred to in this Agreement as the “Material Contracts”.
(iiic) Except as set forth The Seller Contracts listed on Company Section 1.1(i) of the Sellers Disclosure Schedule 3.1(p)(iii)together with the Bundled Contracts listed in Section 5.15 of the Sellers Disclosure Schedule include all of the customer and supplier Contracts of the Sellers that in the most recent completed fiscal year of the Main Sellers resulted in, neither or is reasonably expected by the Company nor any Main Sellers under its terms in 2009 to result in, the payment or receipt by the Business of its Subsidiaries is a party to:more than $2,000,000 per annum in the aggregate.
(Ad) any Contract containing covenants Other than with respect to Bundled Contracts, the Sellers have made available to the Purchaser or its representatives pursuant to the clean team confidentiality agreement between the Purchaser and its subsidiaries and NNL and its subsidiaries, dated April 15, 2009 and the second clean team confidentiality agreement between the Purchaser and its subsidiaries and NNL and its subsidiaries, dated May 8, 2009, copies of all of the Material Contracts in the Sellers’ possession which the Purchaser has requested (as such copies exist in the Sellers’ contract database(s)) and the Sellers have no specific Knowledge that in any way purport to restrict or prohibit, the copies provided are incomplete in any material respect. With respect to Bundled Contracts, the business activity Sellers have made available to the Purchaser copies of such Bundled Contracts to the Company or any of extent that they relate to the Company Subsidiaries or materially limit Business which the freedom of Purchaser has requested (as such copies exist in the Company or any of Sellers’ contract database(s)) and the Company Subsidiaries thereof to engage Sellers have no specific Knowledge that the copies provided are incomplete in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each material respect. Each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is a legal, valid and binding obligation of each Seller party thereto and enforceable against the Company or the applicable Company SubsidiarySeller party thereto, and, and to the Knowledge of the CompanySellers, the other parties thereto, as the case may be, in accordance with its termsterms and conditions, in each case except to the extent that the enforcement thereof as such enforceability may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance insolvency or other similar laws now or hereafter in effect relating to Laws affecting the enforcement of creditors’ rights generally (and (B) subject to general principles of equity (equity, regardless of whether enforceability is considered in a proceeding in equity or at law or in equityLaw). Neither .
(e) To the Company Knowledge of the Sellers, neither any Seller nor any Company Subsidiary other party thereto, is in material violation, breach of or default or breach in any material respectunder a Material Contract, or and no event has received written notice of any material default or breach (or any event that, occurred that with notice or lapse of time time, or both, would constitute a material violation, breach of or default under a Material Contract by any Seller, or breach)to the Sellers’ Knowledge, any other party thereto. Except as disclosed in Section 4.4(a) or Section 4.4(b) of the Sellers Disclosure Schedule, the Sellers (or any Affiliate of the Sellers other than the EMEA Sellers) have not been notified in writing that any of them is in breach or default under the terms of any such Material Contract. To , nor have the Knowledge Sellers or any of their respective Affiliates (other than the Company, no counterparty to any Material Contract is EMEA Sellers) been notified in default or breach, in any material respect, writing of such Material Contract. The Company has made available other party’s intention to Parent prior to the date hereof a true and correct copy of each Material terminate any Seller Contract.
Appears in 2 contracts
Sources: Asset Sale Agreement (Nortel Networks Corp), Asset Sale Agreement
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains sets forth a true and complete list of all Material the following Contracts (as defined each a “Material Contract” and collectively, the “Material Contracts”):
(A) all joint operating or development agreements or similar Contracts that apply to Properties that, in Section 3.1(p)(iithe aggregate, represent not less than 95% of the aggregate Maximum Title Deficiency Amount;
(B) belowall Contracts that pertain to the provision of drilling services to any Company;
(C) all Contracts that concern the purchase and sale, gathering, transportation, compression or processing of Hydrocarbons or similar Contracts relating to or included in the Properties that are operated by a Company and that are (x) not terminable without penalty on ninety or less days notice or (y) can be reasonably expected to result in aggregate monthly revenues to the Companies of more than $10,000 (based solely on the terms thereof and without regard to any expected increase in volumes or revenues) during the current or any subsequent calendar year;
(D) any indenture, mortgage, loan, credit or sale leaseback or similar financial Contract to which any Company is a party or to which any Property is subject;
(E) all leases (other than a Lease) under which any Company is the lessor or the lessee of real or personal property which lease (x) cannot be terminated by such Company without penalty or payment upon sixty or less days notice or (y) involves an annual base rental of more than $100,000;
(F) all hedging or swap Contracts to which any Company or any of the Company Subsidiaries Seller is a party or by which the Company or any assets of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunderis bound;
(G) each joint ventureall Contracts (other than the Organizational Documents of the Companies) granting any Person registration, partnership purchase or sale rights with respect to any Shares or other Contract involving a sharing equity securities of profits or losses by the Company or any of the Company Subsidiaries with any other PersonCompanies;
(H) each any employment, severance, retention, termination or consulting Contract with or Plan between any director, officer, member, employee Company and any other Person other than any consulting Contract that can be terminated by such Company without penalty or Affiliate of the Company payment upon sixty or any of the Company Subsidiariesless days notice; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note all material insurance policies or other agreement or commitment for the borrowing of money, or for a line of creditbinders under which any Company is insured.
(iiiii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or There exist no defaults by any Company Subsidiary or under any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto andor, to the Knowledge of the CompanyCompanies and the Sellers, the counterparties theretoby any other Person that is a party to such Material Contract, and is in full force and effect and is enforceable against the no Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or Seller has received written notice of (A) any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is or (B) any other Claim under any Material Contract that would reasonably be expected to result in default a material loss to a Company or breach, in any material respect, the termination of such Material Contract. The Companies are in compliance with the material terms of all Material Contracts.
(iii) There are no Contracts included in or affecting the Properties that (A) could materially restrict the ability of the Purchaser to use the Properties as historically used by the Companies and the Sellers; or (B) that could result in liability or cost to a Company has made available (excluding liabilities or costs arising from actions taken by the Purchaser in the ordinary course of business after the Closing) in excess of $1,000,000.00 in the aggregate without providing to Parent prior to the date hereof a true such Company an equal and correct copy corresponding economic benefit.
(iv) True and complete copies (including all amendments thereto) of each Material Contract, other than the Specified Contracts, have been or will be made available to the Purchaser prior to or promptly following the date of this Agreement, and Seller will use commercially reasonable efforts to obtain the necessary consents to be able to make true and complete copies (including all amendments thereto) of each Specified Contract available to Purchaser prior to Closing.
Appears in 2 contracts
Sources: Purchase Agreement (Concho Resources Inc), Common Stock Purchase Agreement (Concho Resources Inc)
Material Contracts. (ia) Section 4.18 of the Company Disclosure Schedule 3.1(p)(i) contains Letter, as of the date of this Agreement, sets forth a true, correct and complete list of all Material Contracts (as defined in Section 3.1(p)(ii) below) the following contracts to which the Company or any of the Company its Subsidiaries is a party or by which bound by:
(i) any “material contract” (as such term is defined in Item 10 and in Instructions as to Exhibits of Form 20-F under the Exchange Act, other than any Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.Employee Plan);
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to contract, arrangement or from the Company understanding (oral or a Company Subsidiary of $1,000,000 or more in any twelve (12written) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee shareholder or Affiliate of the Company or any of its Subsidiaries (other than customary employment agreements) and (B) any contract that provides for indemnification by the Company Subsidiaries; and
(I) or any of its Subsidiaries to any Person other than a contract entered into in the Loan Agreements and each other indenture, mortgage, promissory note ordinary course of business or other agreement or commitment for that is not material to the borrowing of money, or for a line of credit.Company;
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) contract containing any Contract containing covenants provision or covenant that in any way purport to restrict or prohibit, in imposes any material respect, restriction on the business activity right or ability of the Company or any of its Subsidiaries of any of their respective Affiliates (including post-Closing) to (A) compete with any other Person, (B) solicit any customer, or (C) acquire or dispose of the securities of another Person, or any other provision that materially restricts the conduct of any line of business by the Company or any of its Subsidiaries;
(iv) any contract or series of contracts that (A) could reasonably be expected to result in the payment of more than $5,000,000 by the Company or any of its Subsidiaries in the fiscal year ending December 31, 2018, or materially limit (B) obligates the freedom Company or its Subsidiaries to conduct business with any Third Party on an exclusive basis;
(v) any contract that contains a “most favored nation” provision;
(vi) any Labor Contracts;
(vii) any agreement relating to indebtedness for borrowed money of the Company or any of the Company its Subsidiaries thereof to engage having an outstanding principal amount in excess of $2,000,000;
(viii) any line of business management service, consulting, financial advisory or to compete other similar type contract (including any engagement or retention agreement) with any Person; orinvestment or commercial bank or financial advisor;
(BA) any Contract contract that grants to a third Person a any right of first refusal, option, preferential right of first offer or similar right with respect to acquire any securities, material assets, material rights or material properties or assets of the Company or any Company Subsidiary of its Subsidiaries, (B) any voting agreement and (C) any registration rights agreement;
(x) any contract or series of contracts that provides for the acquisition or disposition of any Contract that grants to a third party a power material business or asset (including any drilling unit or vessel), whether by merger, sale of attorney shares, sale of assets or otherwise;
(xi) any joint venture, partnership, strategic alliance or limited liability company agreement or other similar contract, including the Joint Venture Agreements;
(xii) any contract limiting or restricting the ability of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)of its Subsidiaries to, each Material Contract is a valid and binding agreement of or requiring the Company or the Company Subsidiaryany of its Subsidiaries to, (A) make distributions or declare or pay dividends in respect of their share capital, partnership interests, membership interests or other equity interests, as the case may be, party thereto and(B) redeem or repurchase any share capital, to partnership interests, membership interests or other equity interests, (C) make loans or (D) grant Liens on the Knowledge property of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or any of its Subsidiaries;
(xiii) any contract that obligates the applicable Company Subsidiaryor any of its Subsidiaries to make any loans, andadvances or capital contributions to, to or investments in excess of $1,000,000 in, any Person (other than the Knowledge Company or any of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by Subsidiaries);
(xiv) any contract (A) applicable bankruptcygranting the Company or any of its Subsidiaries a license or right to use any Intellectual Property or IT Asset (other than commercially available software licenses with annual fees of less than $1,000,000), insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law permitting any Third Party to use, enforce or in equity). Neither register any Intellectual Property owned by the Company nor or any of its Subsidiaries, including any license agreements, coexistence agreements and covenants not to ▇▇▇ (other than non-exclusive licenses to customers and suppliers in the ordinary course of business) or (C) restricting the right of the Company or any of its Subsidiaries to use, commercially exploit or register any Intellectual Property owned by the Company or any of its Subsidiaries (other than any of the contracts identified in Section 4.18(a)(iii) of the Company Disclosure Letter);
(xv) any drilling unit or vessel construction, repair, modification, life extension, overhaul or conversion contract for an amount in excess of $5,000,000 with respect to which the drilling unit or vessel has not been delivered and paid for;
(xvi) any drilling contracts of one year or greater in remaining duration (not including any unexercised customer options);
(xvii) any ship-sales, memorandum of agreement or other vessel acquisition contract for vessels under construction, newly constructed and secondhand vessels contracted for by the Company or any of its Subsidiaries and other contracts with respect to vessels under construction, newly constructed and secondhand vessels and the financing thereof, including performance guarantees, refund guarantees and future charters;
(xviii) (A) any operating agreement, management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Company Subsidiary is in default Fleet Asset, (B) each contract, including any option, with respect to the purchase or breach in any material respect, or has received written notice sale of any material default or breach Company Fleet Asset and (C) each contract with a third party for the charter of any Company Fleet Asset (other than any drilling contract of less than one year in remaining duration, excluding any unexercised customer options);
(xix) any contract that involved the receipt of more than $5,000,000 by the Company or any event thatof its Subsidiaries in the fiscal year ending December 31, with notice 2017 or lapse that is expected to result in the receipt of time such amount by the Company or bothany of its Subsidiaries in the fiscal year ending December 31, would constitute 2018 (other than any drilling contract of less than one year in remaining duration, excluding any unexercised customer options);
(xx) any contract obligating the Company or any of its Subsidiaries not to acquire assets or securities of a material default Third Party or breachagreements by a Third Party not to acquire assets or securities of the Company (excluding standstill agreements), under ;
(xxi) any contract involving a standstill or similar obligation of the terms Company or any of its Subsidiaries;
(xxii) the Governance Agreements; and
(xxiii) any contract guaranteeing the performance of any such Third Party in excess of $1,000,000. All contracts of the types referred to in clauses (i) through (xxiii) above (whether or not set forth on Section 4.18 of the Company Disclosure Letter) are referred to herein as a “Company Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. .” The Company has made available to Parent prior to the date hereof of this Agreement a true true, complete and correct copy of each Company Material Contract that has not expired or been terminated prior to the date hereof (including all amendments, modifications, side letters, extensions, and renewals thereto and waivers thereunder) as in effect on the date of this Agreement (subject to any redaction of information contained therein reasonably determined to be necessary by the Company (after consultation with its outside legal counsel) in order to comply with any applicable Antitrust Law).
(b) Except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole (i) neither the Company nor any of its Subsidiaries is in breach of, or default under, any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of, or default under, any Company Material Contract, (ii) no event has occurred that with notice or the lapse of time or both would constitute a breach of or default under any Company Material Contract, (iii) each Company Material Contract is a valid and binding obligation of the Company or its Subsidiary, as applicable, and, to the knowledge of the Company, of each other party thereto, subject to the Bankruptcy and Equity Exception, and (iv) each Company Material Contract is in full force and effect, except for any Company Material Contracts that have expired or been terminated after the date hereof in accordance with their terms and, as applicable, Section 6.01(o). There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to a Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract nor, to the knowledge of the Company, is any such party threatening to do so, in each case except as would not be material to the Company and its Subsidiaries, taken as a whole.
Appears in 2 contracts
Sources: Merger Agreement (Transocean Ltd.), Merger Agreement (Transocean Ltd.)
Material Contracts. (ia) Company Section 2.15(a) of the Disclosure Schedule 3.1(p)(i) contains Letter sets forth a complete and accurate list of all Material Contracts written or oral contracts, agreements, notes, bonds, indentures, mortgages, pledges, guarantees, options, leases, licenses, sales and purchase orders, warranties, commitments and other instruments of any kind (as defined in Section 3.1(p)(ii) below) each a "CONTRACT"), to which the Company or any of the Company Subsidiaries Subsidiary is a party or by which the Company or any Subsidiary, or any of their respective assets and properties, is otherwise bound, and which Contract is currently in effect or has future obligations or unfulfilled past or present obligations (or in the case of clause (i) below, to which the Company or any Subsidiary was a party or by which the Company or any Subsidiary was bound during the relevant twelve month period), as follows (each a "MATERIAL CONTRACT" and, collectively, the "MATERIAL CONTRACTS"): (i) each Contract of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company any Subsidiary gathers, processes, treats, transports, stores, sells received (or purchases hydrocarbons was entitled to receive) or the products therefrom;
paid (Bor was purportedly obligated to pay) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less more than $2,500,000 or are terminable by 200,000 in the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month periodperiod ended September 30, other than Contracts relating to 2004 (provided such Contract remains in effect as of the sale date hereof) and each customer Contract in effect on the date of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts this Agreement under which the Company or any Company Subsidiary assumed received in the twelve (12) month period ended September 30, 2004 or guaranteed any outstanding Debt of a third party is entitled to receive thereafter more than $200,000; (including any Company Member Interest Holder ii) each Contract that requires payment by or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary after September 30, 2004 of more than $200,000; (iii) each Contract that contains non-competition restrictions, including any operating restrictions relating to the conduct of the Company's or a Subsidiary's business or equity interests the sale of the Company's or any other Person which contain continuing obligations Subsidiary's products or any geographic restrictions, in any case that would prohibit or restrict the Surviving Company or any of its affiliates from conducting the business of the Company or any Company Subsidiary and which could reasonably require as presently conducted or that requires any consent or other action by any person for, or will be subject to default, termination, repricing or other renegotiation or cancellation because of, the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
transactions contemplated hereby; (G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(Hiv) each Contract relating to the Company's or any Subsidiary's channel sales with any director, officer, member, employee or Affiliate distributors; (v) each Contract of the Company or any Subsidiary relating to, and evidences of, indebtedness for borrowed money or the deferred purchase price of the Company Subsidiariesproperty (whether incurred, assumed, guaranteed or secured by any asset); and
(Ivi) the Loan Agreements and each other indenturepartnership, mortgage, promissory note joint venture or other agreement similar Contract or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport arrangement to restrict or prohibit, in any material respect, the business activity of which the Company or any of the Company Subsidiaries Subsidiary is a party or materially limit the freedom of by which it is otherwise bound; (vii) each Contract that requires the Company or any of the Company Subsidiaries thereof Subsidiary to engage in grant "most favored customer" pricing to any line of business other person; (vii) each fidelity or surety bond or completion bond; (ix) each Contract pursuant to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of which the Company or any Subsidiary has agreed to provide liquidated damages for failure to meet performance obligations or quality milestones (except to the extent that the amount of such liquidated damages, together with the liquidated damages potentially payable pursuant to any other Contract, do not exceed an aggregate of $200,000); (x) each Contract pursuant to which the Company Subsidiary or any Contract that grants Subsidiary has agreed to provide indemnification or guaranty to a third party a power (other than this Agreement and other than an indemnification or guaranty pursuant to the Company's standard form license agreement in the form provided to Parent prior to the date hereof); (xi) each Contract relating to the disposition or acquisition of attorney assets, property or any interest in any business enterprise outside the ordinary course of the Company Company's or any Subsidiary's business; (xii) each distribution, joint marketing or development Contract and (xiii) each Contract that is otherwise material to the Company Subsidiaryand Subsidiaries, taken as a whole.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Each Material Contract is a legal, valid and binding agreement obligation of the Company or the Company Subsidiary, as the case may be, Subsidiary that is a party thereto and, to the Knowledge of the Company's knowledge, the counterparties each other person who is a party thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, such Subsidiary and, to the Knowledge of the Company's knowledge, the each such other parties thereto, as the case may be, person in accordance with its terms, except and neither the Company or any Subsidiary nor, to the extent that the enforcement thereof may be limited by (A) applicable bankruptcyCompany's knowledge, insolvency, reorganization, moratorium, fraudulent conveyance or any other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary party thereto is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contractthereunder.
Appears in 2 contracts
Sources: Merger Agreement (Cadence Design Systems Inc), Merger Agreement (Cadence Design Systems Inc)
Material Contracts. (a) Except for this Agreement and the Contracts filed as exhibits to the Company Reports, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(i) any Contract that is required to be filed by the Company Disclosure Schedule 3.1(p)(ipursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to indebtedness for borrowed money or any financial guarantee, of more than US$3,500,000 in any calendar year on its face;
(iii) any Contract that contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than US$100,000;
(iv) any Contract relating to the Company Subsidiaries is a party formation, creation, operation, management or by which control of any joint venture;
(v) any Contract between the Company or any of the Company its Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished any director or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations executive officer of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company Person beneficially owning five percent or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any more of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee outstanding Shares required to be disclosed pursuant to Item 7B or Affiliate Item 19 of Form 20-F under the Company or any of the Company SubsidiariesExchange Act; and
(Ivi) the Loan Agreements and each other indenture, mortgage, promissory note any non-competition Contract or other agreement Contract that limits or commitment purports to limit in any material respect the type of business in which the Company or its Subsidiaries may engage, the type of goods or services which the Company or its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the borrowing manner or locations in which any of money, them may so engage in any business or for use their assets. Each such Contract described in clauses (i) through (vi) above is referred to herein as a line of credit“Material Contract”.
(iiib) Except as set forth would not have, individually or in the aggregate, a Material Adverse Effect, (i) each of the Material Contracts is valid and binding on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiaryits Subsidiaries, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the each other parties party thereto, as the case may beand is in full force and effect, in accordance with its terms, except subject to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally Bankruptcy and Equity Exception and (Bii) general principles of equity (regardless of whether enforceability there is considered in a proceeding at law no breach or in equity). Neither default under any Material Contract by the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To its Subsidiaries and to the Knowledge of the Company, no counterparty to event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default thereunder by the Company or any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contractits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (New Horizon Capital Iii, L.P.), Merger Agreement (Exceed Co Ltd.)
Material Contracts. (i) Except for this Agreement, as of the date of this Agreement, none of the Company Disclosure Schedule 3.1(p)(ior its Subsidiaries is a party to or bound by any Company Contracts (each such Company Contract, a “Material Contract”):
(A) (I) containing covenants binding upon the Company or its Subsidiaries that restrict the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger or the Bank Merger, would materially restrict the ability of Parent, the Surviving Corporation or its Affiliates) to compete in any business or geographic area or which grant “most favored nation” status that, following the Merger or the Bank Merger, would apply to Parent or any of its Subsidiaries; (II) that could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or any of its Subsidiaries; or (III) that prohibits or limits the right of the Company or any of its Subsidiaries to sell or distribute any products or services;
(B) involving commitments to others to make capital expenditures or capital asset purchases or capital asset sales;
(C) relating to any direct or indirect indebtedness for borrowed money of the Company or any of its Subsidiaries (including loan agreements, lease purchase arrangements, guarantees, agreements to purchase goods or services or to supply funds or other undertakings on which others rely in extending credit), or any conditional sales Company Contracts, chattel mortgages and other security arrangements with respect to personal property, other than Company Contracts entered into in the ordinary course of business consistent with past practice, and any equipment lease agreements involving payments to or by the Company or any of its Subsidiaries in excess of $75,000 over the remaining term;
(D) provides for payments to be made by the Company or any of its Subsidiaries upon a change in control thereof;
(E) containing any standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of another Person;
(F) that would prevent, materially delay or materially impede the Company’s ability to consummate the Merger, the Bank Merger or the other transactions contemplated hereby;
(G) providing for indemnification by the Company or any of its Subsidiaries of any Person, except for non-material Company Contracts entered into in the ordinary course of business;
(H) that was not negotiated and entered into on an arm’s-length basis;
(I) other than this Agreement, that is entered into, or has been entered into in the two years prior to the date hereof, with (i) any Affiliate of the Company, (ii) any current or former director or officer or any Person beneficially owning five percent (5%) or more of the outstanding Shares or (iii) any “associate” or member of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of a person identified in clauses (i) or (ii) of this subsection;
(J) that contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets;
(K) which relates to a joint venture, partnership, limited liability company agreement or other similar agreement or arrangement, or to the Company Subsidiaries is a party formation, creation or by which operation, management or control of any partnership or joint venture with any third parties;
(L) involves performance of services or delivery of goods or materials to, or expenditures by, the Company or any of its Subsidiaries of an amount or value in excess of $100,000 over its remaining term, other than loans, funding arrangements, OREO-related arrangements and other transactions made in the ordinary course of the banking business;
(M) relating to the acquisition or disposition of any business or operations (whether by merger, sale of stock, sale of assets or otherwise) entered into since December 31, 2010 (other than Company Contracts relating to the acquisition or sale of other real estate owned);
(N) otherwise not entered into in the ordinary course of business or that is material to the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representativesfinancial condition or results of operations.
(ii) Each of the Material Contracts of the Company is valid and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from binding on the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company its Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto be and, to the Knowledge of the Company, the counterparties each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect and as would not, or would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect. There is enforceable against no default under any such Material Contracts by the Company or its Subsidiaries and no event has occurred that with the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, the giving of notice or both would constitute a material default thereunder by the Company or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breachits Subsidiaries, in any material respecteach case except as would not, of such or would not reasonably be expected to, individually or in the aggregate, result in a Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Hanmi Financial Corp), Merger Agreement (Hanmi Financial Corp)
Material Contracts. (i) Except for this Agreement and except for Contracts filed as exhibits to the Company Disclosure Schedule 3.1(p)(iReports, as of the date of this Agreement, none of the Company or its Subsidiaries is a party to or bound by:
(A) contains other than with respect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company owns more than a list 15% voting or economic interest, or any interest valued at more than $10 million without regard to percentage voting or economic interest;
(B) any Contract (other than among direct or indirect wholly owned Subsidiaries of all Material Contracts the Company) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $1 million;
(C) any Contract that would be required to be filed by the Company as defined a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, excluding any Benefit Plan;
(D) any Contract that (I) purports to limit in Section 3.1(p)(iiany material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) belowmay engage or the manner or locations in which any of them may so engage in any business, (II) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries, (III) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries or (IV) prohibits or limits in any material respect the right of the Company or any of its Subsidiaries to make, sell or distribute any products or services;
(E) any Contract to which the Company or any of the Company its Subsidiaries is a party containing a standstill or similar agreement pursuant to which the Company has agreed not to acquire the assets or securities of the other party or any of its Affiliates;
(F) any Contract between the Company or any of its Subsidiaries and any Affiliate thereof, including any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares, excluding any Benefit Plan;
(G) any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person, except for any such Contract that is (i) not material to the Company or any of its Subsidiaries and (ii) entered into in the ordinary course of business;
(H) any material Contract relating to the license of Intellectual Property (excluding commercial off-the-shelf or shrink wrap software that has not been modified or customized);
(I) any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $1 million; and
(J) any Contract (other than a Contract described in one of the other provisions in this Section 5.1(j)) which is material to the Company and its Subsidiaries (each such Contract described in clauses (A) through (J), together with all exhibits and schedules to such Contracts and those Contracts which would be Material Contracts but for the exception of being filed as exhibits to the Company Reports, is otherwise bound. A true, correct and complete copy of each referred to herein as a “Material Contract has been furnished or made available to Parent or its representativesContract”).
(ii) Each of the Material Contracts of the Company is valid and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from binding on the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company its Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto be and, to the Knowledge knowledge of the Company, the counterparties each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect and as would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. There is enforceable against no default under any such Contracts by the Company or its Subsidiaries and no event has occurred that with the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, the giving of notice or both would constitute a material default thereunder by the Company or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breachits Subsidiaries, in any material respecteach case except as would not, of such or would not reasonably be expected to, individually or in the aggregate, have a Company Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (Bowne & Co Inc)
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company in Section 5.15 of the Seller Disclosure Schedule 3.1(p)(iii)or as filed as exhibits to the Seller SEC Reports prior to the date of this Agreement, and except for this Agreement, neither the Company Seller nor any of its Subsidiaries is a party to:
to or is bound by any contract, arrangement, commitment or understanding (Ai) any Contract containing covenants that is a “material contract” (as such term is defined in any way purport to restrict or prohibit, in any material respect, the business activity Item 601(b)(10) of Regulation S-K of the Company Exchange Act), (ii) which limits the ability of Seller or any of the Company its Subsidiaries to compete or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with solicit business in any Person; or
geographic area, (Biii) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company which provides for exclusivity by Seller or any Company Subsidiary of its Subsidiaries with respect to any material products or services sold or purchased by Seller or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
its Subsidiaries, (iv) Except as that by its terms would prohibit or materially delay the consummation of the Offer, the Merger or any of the other transactions contemplated by this Agreement, or (v) with any customer of Seller or its Subsidiaries which is expected to relate to more than $1,000,000 in annual revenue for the fiscal year ending September 30, 2008. Each contract, arrangement, commitment or understanding of the type described above in this Section 5.15, whether or not set forth on Company in Section 5.15 of the Seller Disclosure Schedule 3.1(p)(iv)Schedule, each Material Contract is referred to herein as a “Seller Contract.” All of the Seller Contracts are valid and binding agreement on Seller and each of the Company or the Company Subsidiary, as the case may be, its Subsidiaries that is a party thereto and, to the Knowledge of the CompanySeller’s knowledge, the counterparties each other party thereto, as applicable, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiaryeffect, and, subject to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or other similar laws now or hereafter in effect Laws relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company Seller nor any Company Subsidiary is in default or breach of its Subsidiaries has, and to the knowledge of Seller, none of the other parties thereto have, violated in any material respectrespect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default under the provisions of any Seller Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Seller Material Adverse Effect and neither Seller nor any of its Subsidiaries has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contractforegoing.
Appears in 2 contracts
Sources: Merger Agreement (BladeLogic, Inc.), Merger Agreement (BMC Software Inc)
Material Contracts. (i) Except for this Agreement and except for Contracts filed as exhibits to the Company Disclosure Schedule 3.1(p)(iReports, as of the date of this Agreement, none of the Company or its Subsidiaries is a party to or bound by:
(A) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(B) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, of more than $1,000,000 in any calendar year on its face;
(C) any Contract that contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) put, call or similar right pursuant to which the Company or any of the Company its Subsidiaries is could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a party fair market value or by which the Company or any purchase price of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty1,000,000;
(D) any Contracts under which Contract relating to the Company formation, creation, operation, management or control of any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof)joint venture;
(E) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale Shares required to be disclosed pursuant to Item 7B or other derivative Contracts involving hydrocarbons or other commodities;Item 19 of Form 20-F under the Exchange Act; and
(F) any Contracts relating non-competition Contract or other Contract that limits or purports to limit in any material respect the acquisition (by merger, purchase type of stock or assets or otherwise) by business in which the Company or any Company Subsidiary its Subsidiaries may engage, the type of any operating business goods or equity interests of any other Person services which contain continuing obligations of the Company or its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the manner or locations in which any of them may so engage in any business or use their assets. Each such Contract described in clauses (A) through (F) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company Subsidiary Reports is referred to herein as a “Material Contract”.
(ii) Each of the Material Contracts is valid and which could reasonably require the payment of monies by binding on the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company its Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the each other parties party thereto, as the case may be, and is in accordance with its termsfull force and effect, except for such failures to the extent that the enforcement thereof may be limited by (A) applicable bankruptcyvalid and binding or to be in full force and effect as would not, insolvencyor would not reasonably be expected to, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law individually or in equity)the aggregate, have a Material Adverse Effect. Neither There is no breach or default under any Material Contracts by the Company nor any Company Subsidiary is in default or breach in any material respect, or its Subsidiaries and no event has received written notice of any material default or breach (or any event that, occurred that with notice or the lapse of time or both, the giving of notice or both would constitute a material breach or default thereunder by the Company or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breachits Subsidiaries, in any material respecteach case except as would not, of such or would not reasonably be expected to, individually or in the aggregate, have a Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Acorn International, Inc.), Merger Agreement (Tongjitang Chinese Medicines Co)
Material Contracts. (ia) Section 3.16(a) of the Company Disclosure Schedule 3.1(p)(i) contains sets forth a list complete and correct list, as of all Material the date hereof, of each of the following Contracts (as defined other than any Company Benefit Plans and excluding purchase orders, statements of work and similar commercial documents issued in Section 3.1(p)(ii) belowthe ordinary course of business under and not amending the applicable Contract) to which the Company or any of the Company its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective assets or businesses are bound (and any material amendments, supplements and modifications thereto):
(i) Contracts that (or, together with additional related Contracts with the same Person or its affiliates) (A) are expected to involve the payment of amounts by the Company or any of its Subsidiaries is otherwise bound. A true, correct in North America of more than $10,000,000 in the aggregate for fiscal year 2024 and complete copy (B) are expected to involve the receipt of each Material Contract has been furnished amounts by the Company or made available to Parent or any of its representatives.Subsidiaries of more than $10,000,000 in the aggregate for fiscal year 2024;
(ii) Material Contracts concerning the establishment or operation of a partnership, joint venture or limited liability company;
(iii) Contracts pursuant to which the Company or any of its Subsidiaries licenses (A) from a third party material Intellectual Property, other than licenses (1) for shrink-wrap, click-wrap or off-the shelf software or other generally commercially available software, (2) pursuant to stock, boilerplate, or other generally non-negotiable terms, such as, for example, website and mobile application terms and conditions or terms of use, stock photography licenses, and similar Contracts, or (3) that are implied by or incidental to the sale or purchase of products or services in the ordinary course of business, or (B) to a third party Company Owned Intellectual Property, other than non-exclusive licenses (1) granted in the ordinary course of business or (2) that are implied by or incidental to the sale or purchase of products or services in the ordinary course of business, in the case of each of clause (A) and clause (B), to the extent any such Contract exceeds $1,000,000 of expense per year (in the case of clause (A)) or revenue per year (in the case of clause (B));
(iv) (A) the lease agreements of the Company and or any of its Subsidiaries that pertain to (1) incinerator sites or (2) any parcel of Company Leased Real Property for which the annual rent exceeds $1,000,000 individually (other than incinerator sites) or (B) master vehicle lease agreements of the Company or any of its Subsidiaries for which annual leasing costs exceed $5,000,000 (each, a “Material ContractsCompany Lease Agreement”);
(v) shall include:Contracts containing a covenant materially restricting the ability of the Company or any of its Subsidiaries to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers;
(vi) indentures, credit agreements, loan agreements and similar instruments pursuant to which the Company or any of its Subsidiaries has or will incur or assume any indebtedness for borrowed money or has or will guarantee or otherwise become liable for any indebtedness of any other Person for borrowed money in excess of $500,000;
(vii) Contracts that (A) prohibit or restrict the payment of dividends or other distribution of assets by any of the Company or its Subsidiaries, (B) prohibit or restrict the issuance of guarantees by the Company or any of its Subsidiaries, or (C) limit the ability of the Company or any of its Subsidiaries or affiliates to sell, transfer, pledge or otherwise dispose of any assets or businesses;
(viii) Contracts under which there has been imposed a Lien (other than a Permitted Lien) on any of the material assets, tangible or intangible, of the Company;
(ix) Contracts that provide for the acquisition or disposition, directly or indirectly (by merger or otherwise) of assets (including properties) or capital stock (other than acquisitions or dispositions of inventory and raw materials and supplies in the ordinary course of business) (A) for aggregate consideration under such Contract in excess of $5,000,000 or (B) pursuant to which the Company or its Subsidiaries has continuing material “earn-out” or other similar contingent payment obligations or any material indemnification obligations (other than with respect to customary representations and warranties with customary survival periods) that could result in the receipt or making by the Company or any of its Subsidiaries of future payments in excess of $1,000,000;
(x) is a Franchise Agreement;
(xi) Contracts that contain or include (A) any Contracts with third parties “most favored nation” or most favored customer provision or rights of first or last offer, negotiation or refusal, (B) “take or pay” requirements, volume requirements or commitments, exclusive purchasing arrangements obligating a Person to obtain a minimum quantity of goods or services from another Person, or (C) a put or call right pursuant to which would be reasonably expected to involve payments to or from the Company or a any of its Subsidiaries could be required to purchase or sell, as applicable, any assets or any equity interests of any Person;
(xii) Contracts that are (A) license or royalty Contracts (other than Contracts relating to Intellectual Property or licenses that are implied by or incidental to the sale or purchase of products or services in the ordinary course of business) or (B) merchandising, sales representative, franchisee or distribution Contracts, involving the payment or receipt over the life of such Contract in excess of $1,000,000 by the Company Subsidiary or any of its Subsidiaries;
(xiii) Any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, that (A) could result in the receipt or making by the Company or any of its Subsidiaries of future payments in excess of $1,000,000 or (B) has a remaining duration of three years or more from the date hereof;
(xiv) other than employment or service Contracts entered into in the ordinary course of business, (A) any twelve Indemnification Agreement with any current director or executive officer of the Company or (12B) month periodany Contracts with (1) any beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of 5% or more of any class of securities of the Company or any of its Subsidiaries, (2) any affiliate (other than a wholly-owned Retained Subsidiary of the Company) or “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the foregoing, including any stockholders agreement, investors’ rights agreement, registration rights agreement, voting agreement, tax receivable agreement or similar or related Contracts or (3) any director or officer of the Company or any of its Subsidiaries, in each case, that is required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act;
(xv) material Contracts that contain standstill or similar agreements that are reasonably expected to be in effect as of the Closing, pursuant to which the Company or any of its Subsidiaries has agreed to not acquire assets or securities of another Person (excluding, for purposes hereof, any confidentiality agreements contemplating a Company Subsidiary gatherspotential acquisition (by merger, processesconsolidation, treats, transports, stores, sells acquisition or purchases hydrocarbons otherwise) of another Person or the products therefrombusiness which contains a standstill or similar agreement);
(Bxvi) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any of its Subsidiaries has, directly or indirectly, any obligations to make a capital contribution to, or other investment in, any Person outside the ordinary course of business in excess of $2,000,000 (other than the Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereofits wholly-owned Retained Subsidiaries);
(Exvii) Contracts with any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commoditiesGovernmental Entity in excess of $2,000,000 of revenue per year;
(Fxviii) any Contracts relating to that reflect the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary settlement of any operating business or equity interests Proceeding individually in excess of any other Person $1,500,000 and under which contain continuing there are material outstanding compliance obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies its Subsidiaries; or
(xix) any Contract not otherwise described in any other subsection of this Section 3.16(a) that would be required to be filed by the Company as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC).
(b) A complete and correct copy of each Contract listed or any required to be listed in Section 3.16(a) of the Company Subsidiary Disclosure Schedule or required to be filed as exhibits to the applicable sellers thereunder;
Company SEC Documents (G) each joint venturesuch Contracts, partnership or together with any other Contract involving a sharing of profits or losses by to which the Company or any of its Subsidiaries becomes a party or by which it becomes bound after the Company Subsidiaries with any other Person;
(Hdate hereof that would be required to be listed in Section 3.16(a) each Contract with any director, officer, member, employee or Affiliate of the Company or any Disclosure Schedule if in effect as of the date hereof, the “Company Subsidiaries; and
Material Contracts” and each, a “Company Material Contract”) has been made available, to the extent in the possession of the Company’s knowledge parties after due inquiry of their direct reports, to Parent or publicly filed with the SEC prior to the date hereof. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (Ii) all Company Material Contracts are valid, binding and in full force and effect and are enforceable by the Company or the applicable Subsidiary in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) the Loan Agreements Company or the applicable Subsidiary has performed all obligations required to be performed by it under the Company Material Contracts, and each other indenture, mortgage, promissory note it is not (with or other agreement without notice or commitment for the borrowing lapse of moneytime, or for a line both) in breach or default thereunder and, to the Knowledge of credit.
the Company, no other party to any Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder and (iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii)since the Applicable Date, neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default actual, alleged, possible or breach (potential violation of, or failure to comply with, any event that, with notice term or lapse of time or both, would constitute a material default or breach), under the terms requirement of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Waste Management Inc), Agreement and Plan of Merger (Stericycle Inc)
Material Contracts. (i) Except for this Agreement, any Benefit Plans, any Contracts filed as exhibits to the Company Disclosure Schedule 3.1(p)(iReports, and any Company Leases, as of the date hereof, neither the Company nor its Subsidiary is a party to any Contract (or group of related Contracts with the same party or an Affiliate of such party):
(A) contains that would be required to be filed by the Company as a list “material contract” pursuant to Item 601(b)(10) of all Material Contracts Regulation S-K under the Securities Act;
(as defined B) that purports to limit or otherwise restrict in Section 3.1(p)(iiany material respect the ability of the Company or its Subsidiary to compete in any business or geographic or therapeutic area (or that, following the Offer or the Merger, would by its terms apply such limits or other restrictions to Parent or its Subsidiaries);
(C) below(x) containing any standstill, or similar agreement pursuant to which the Company or any its Subsidiary has agreed not to acquire assets or securities of the Company Subsidiaries is another Person, (y) containing a party put, call, right of first refusal or by similar right pursuant to which the Company or its Subsidiary could be required to purchase or sell, or otherwise acquire or transfer, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $300,000 or (z) relating to the Company Subsidiaries is otherwise bound. A trueacquisition or disposition of any business or any material assets other than in the ordinary course of business consistent with past practice (whether by merger, correct and complete copy sale of each Material Contract has been furnished stock or made available to Parent assets or its representatives.otherwise);
(iiD) Material Contracts of that would prevent, materially delay or materially impede the Company and Company’s ability to consummate the Company Subsidiaries (“Material Contracts”) shall include:Offer, the Merger or the other Transactions;
(AE) any Contracts with third parties which would be reasonably expected to involve payments to or from that is between the Company or a its Subsidiary and any of their respective directors or officers or any Person beneficially owning five percent (5%) or more of the outstanding Shares;
(F) that involves the payment or receipt by the Company or its Subsidiary of royalties or other amounts of more than $1,000,000 300,000 in the aggregate calculated based on the revenues or more income of the Company;
(G) (x) for the furnishing of services or the sale of products which involves, or would reasonably be expected in the future to involve, consideration in excess of $300,000 in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(By) any Contracts for the construction receipt of gathering services by a third party or for the purchase of raw materials, commodities, supplies, products, or other pipeline systems or processingpersonal property, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without which involves payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described consideration in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary excess of $1,000,000 or more 300,000 in any twelve (12) month period, other than Contracts relating period or which would reasonably be expected to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without involve payment by the Company of consideration in excess of $300,000 in any future twelve (12) month period during the term of such agreement or any (z) that provides for future payment obligations by the Company Subsidiary of any penaltyeither $300,000 or more related to clinical trials of Company Pharmaceutical Products;
(DH) under which any Contracts under the Company is a lessee of, or holds or uses, any equipment, machinery, vehicle or other tangible personal property owned by a third Person which requires future annual payments in excess of $300,000;
(I) pursuant to which the Company has entered into a partnership, joint venture, collaboration or other similar arrangement with any Person other than the Subsidiary;
(J) for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $300,000;
(K) entered into other than in the ordinary course of business pursuant to which the Company agrees not to make use of any material right in any Intellectual Property owned by the Company;
(L) pursuant to which the Company has outstanding indebtedness, or provides a guarantee in a principal amount in excess of $300,000;
(M) which requires future payments by the Company in excess of $300,000 per annum containing “change of control” or similar provisions; or
(N) pursuant to which the Company or any Company Subsidiary assumed other party thereto has material continuing obligations, rights or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts interests relating to the acquisition distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to any Company Pharmaceutical Product. Each such Contract described in clauses (by mergerA) through (N) above (and those Contracts that would be Material Contracts but for the exception of being filed as exhibits to the Company Reports), purchase but in any event excluding Benefit Plans and Company Leases, are referred to herein as a “Material Contract.”
(ii) Each of stock or assets or otherwise) by the Material Contracts is valid and binding on the Company or any Company its Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge knowledge of the executive officers of the Company, the counterparties thereto, each other party thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that, individually or in the aggregate with other such failures, has not had, and is enforceable against the would not reasonably be expected to have, a Company or the applicable Company Subsidiary, and, to the Knowledge Material Adverse Effect. None of the Company, the other parties theretoits Subsidiary or, as the case may be, in accordance with its terms, except to the extent that knowledge of the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge executive officers of the Company, no counterparty to any Material Contract other party, is in default or breachunder any Material Contract, in any material respecteach case except for such defaults that, of individually or in the aggregate with other such defaults, have not had, and would not reasonably be expected to have, a Company Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Gilead Sciences Inc), Merger Agreement (Pharmasset Inc)
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains a list As of all Material Contracts (the date hereof, except as defined set forth in Section 3.1(p)(ii3.13 of the Diageo Disclosure Schedule, none of the Business Entities is a party to or bound by any (a) belowemployment or consulting agreement with an individual requiring payments of base compensation in excess of $250,000 per year; (b) to distributor agreement which is not terminable on one year's (or less) notice; (c) material joint venture or similar contract or agreement; (d) contract which is terminable by the Company other party or parties thereto upon a change of control of any of the Company Subsidiaries is Business Entities, other than such contracts the termination of which would not, individually or in the aggregate, have or reasonably be expected to have a party Pillsbury Material Adverse Effect; (e) contract or by which agreement that materially limits or purports to materially limit the Company or ability of any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company Business Entities or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt Affiliates of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating Business Entity to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, compete in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with in any Personmaterial geographic area; or
(Bf) any Contract that grants to a third Person a right material contract or agreement between or among one or more Business Entities on the one hand and Diageo or any Continuing Affiliate or any officer or director of first refusal, option, preferential right or similar right to acquire properties or assets any of the Company Business Entities on the other hand; or (g) other contract, agreement or arrangement, entered into other than in the ordinary course of business, involving an estimated total future payment or payments in excess of $1,000,000. The contracts required to be so listed are referred to herein as "Business Material Contracts." With respect to all Business Material Contracts, (i) none of the Business Entities, Diageo or any Company Subsidiary Continuing Affiliate, nor, to Diageo's or Pillsbury's knowledge, any Contract that grants other party to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each such Business Material Contract is a valid and binding agreement of the Company in breach thereof or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties theretodefault thereunder, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary(ii) there does not exist under any provision thereof, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with the giving of notice or the lapse of time or both, would constitute such a material default breach or breach)default, under except for such breaches, defaults and events which in the terms case of any such clauses (i) and (ii) would not, individually or in the aggregate, have or reasonably be expected to have a Pillsbury Material ContractAdverse Effect. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has Diageo and Pillsbury have made available to Parent prior to the date hereof a General Mills true and correct copy copies of each all Business Material ContractContracts.
Appears in 2 contracts
Sources: Merger Agreement (Diageo PLC), Agreement and Plan of Merger (General Mills Inc)
Material Contracts. (a) Except for contracts reflected as exhibits to its reports and other documents required to be filed under the 1934 Act and the Securities Act of 1933 (the “1933 Act”) (collectively, the “SEC Reports”), including Monroe’s Annual Report on Form 10-K for the year ended December 31, 2009, and Quarterly Report on Form 10-Q for the quarter ended June 30, 2010, or as set forth in the Monroe Disclosure Schedule, as of the date of this Agreement, neither Monroe nor any of its Subsidiaries, nor any of their respective assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, (i) Company Disclosure Schedule 3.1(p)(iany contract relating to the borrowing of money by Monroe or any of its Subsidiaries or the guarantee by Monroe or any of its Subsidiaries of any such obligation (other than contracts pertaining to fully-secured repurchase agreements, and trade payables, and contracts relating to borrowings or guarantees made in the ordinary course of business), (ii) contains any contract containing covenants that limit the ability of Monroe or any of its Subsidiaries to compete in any line of business or with any Person, or to hire or engage the services of any Person, or that involve any restriction of the geographic area in which, or method by which, Monroe or any of its Subsidiaries may carry on its business (other than as may be required by Law or any Governmental Authority) (as each are hereinafter defined), or any contract that requires it or any of its Subsidiaries to deal exclusively or on a list “sole source” basis with another party to such contract with respect to the subject matter of all such contract, (iii) any contract for, with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization or other business combination, or asset sale or sale of equity securities not in the ordinary course of business consistent with past practice, with respect to Monroe or any of its Subsidiaries, (iv) any other contract or amendment thereto that would be required to be filed as an exhibit to any SEC Report (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the ▇▇▇▇ ▇▇▇) that has not been filed as an exhibit to or incorporated by reference in Monroe’s SEC Reports filed prior to the date of this Agreement, (v) any lease of real or personal property providing for annual lease payments by or to Monroe or its Subsidiaries in excess of $100,000 per annum other than financing leases entered into in the ordinary course of business in which Monroe or any of its Subsidiaries is the lessor, or (vi) any contract that involves expenditures or receipts of Monroe or any of its Subsidiaries in excess of $100,000 per year not entered into in the ordinary course of business consistent with past practice. The contracts of the type described in the preceding sentence, whether or not in effect as of the date of this Agreement, shall be deemed “Material Contracts” hereunder. With respect to each of Monroe’s Material Contracts (i) that is reflected as defined in Section 3.1(p)(ii) below) an exhibit to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A trueSEC Report, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts would be required under Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Company and 1933 Act to be filed as an exhibit to any of its SEC Reports or (iii) that is disclosed in the Company Subsidiaries (“Material Contracts”) shall include:
Monroe Disclosure Schedule, or would be required to be so disclosed if in effect on the date of this Agreement: (A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more each such Material Contract is in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
full force and effect; (B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company Monroe nor any of its Subsidiaries is a party to:
in material default thereunder with respect to each Material Contract, as such term or concept is defined in each such Material Contract; (AC) neither Monroe nor any Contract containing covenants that in any way purport to restrict of its Subsidiaries has repudiated or prohibit, in waived any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms provision of any such Material Contract. To the Knowledge of the Company, ; and (D) no counterparty other party to any such Material Contract is is, to Monroe’s knowledge, in material default or breach, in any material respect. True copies of all Material Contracts, of such Material Contract. The Company has made available including all amendments and supplements thereto, that are not filed as exhibits to Parent prior SEC Reports are attached to the date hereof a true Monroe Disclosure Schedule.
(b) Neither Monroe nor any of its Subsidiaries have entered into any interest rate swaps, caps, floors, option agreements, futures and correct copy forward contracts, or other similar risk management arrangements, whether entered into for Monroe’s own account or for the account of each Material Contractone or more of its Subsidiaries or their respective customers.
Appears in 2 contracts
Sources: Merger Agreement (Old National Bancorp /In/), Merger Agreement (Monroe Bancorp)
Material Contracts. (ia) Company Section 4.14 of the Disclosure Schedule 3.1(p)(i) contains sets forth a list of all Material the following Contracts (in effect as defined in Section 3.1(p)(ii) below) of the date hereof to which the Company or any of the Company Subsidiaries is a party (the “Material Contracts”):
(i) all Contracts not fully performed providing for the performance of services or delivery of goods or materials by which or to the Company and which requires consideration to be furnished, or any which would reasonably be expected to result in consideration to be furnished, during the 12-month period either ending on or commencing on the date of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.this Agreement;
(ii) Material all Contracts of that require the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) to purchase its total requirements of any Contracts with third parties which would be reasonably expected to involve payments to product or service from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefromThird Party;
(Biii) any all Contracts providing for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected Company to require aggregate payments of less than $2,500,000 or are terminable by be the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary exclusive provider of any penaltyproduct or service to any Person;
(Civ) any all Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of obsolete securities, sale of assets, or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereofotherwise);
(Ev) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative all Contracts involving hydrocarbons or other commoditieswith distributors and sales representatives;
(Fvi) all Contracts with any Governmental Authority;
(vii) all Contracts relating that limit or purport to limit the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time, that restricts the ability of the Company to do business with any Person or hire or solicit any Person, or that restricts the right of the Company to sell to or purchase from any Person, or that grants the other party or any Company Subsidiary and which could reasonably require the payment of monies by the Company third person “most favored nation” status or any Company Subsidiary to the applicable sellers thereundertype of special discount rights;
(Gviii) each all Contracts for any joint venture, partnership partnership, or any other Contract involving a sharing of profits or losses similar arrangement by the Company or any of the Company Subsidiaries with any other PersonCompany;
(Hix) agreements which relate to Indebtedness (excluding, for the avoidance of doubt, Contracts evidencing liabilities with respect to deposits and accounts, trade payables, letters of credit, or capital leases made in the ordinary course of business);
(x) mortgages, pledges, or security agreements or similar arrangements constituting a Lien upon the assets or properties of the Company;
(xi) agreements for the sale or purchase of personal property having a value individually, with respect to all sales or purchases thereunder, in excess of $50,000;
(xii) each Contract with any director, officer, memberemployee, employee or Affiliate consultant of the Company on a full-time, part-time, consulting, or requiring the Company to pay severance or separation payments, change in control payments, or any retention or similar transaction bonus;
(xiii) each Contract between or among the Company, on the one hand, and any Seller or any Affiliate of any Seller on the Company Subsidiariesother hand; and
(Ixiv) all Contracts to enter into any of the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of creditforegoing.
(iiib) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither All Material Contracts are in full force and effect against the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties each other party thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the each case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity)express terms thereof. Neither the Company nor There does not exist under any Company Subsidiary is in default or breach in Material Contract any material respectviolation, breach or event of default, or has received written notice alleged material violation, breach, or event of any material default default, or breach (event or any event condition that, with after notice or lapse of time or both, would constitute a material violation, breach, or event of default or breach)thereunder on the part of the Company including, under the terms of without limitation, in connection with any such Material ContractIndebtedness. To The Company has not, and to the Knowledge of the Company, Company no counterparty party to any Material Contract is in default or breachhas, in repudiated any material respect, provision of any such Material Contract. The Company has made available not received written notice that any party to Parent prior a Material Contract intends to cancel or terminate such Material Contract.
(c) The Sellers have delivered to the date hereof Purchaser a true true, correct, and correct complete copy of each written Material Contract, including all amendments, waivers, supplements, or modifications thereto, along with a summary of each of the material terms of each oral Material Contract.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Diego Pellicer Worldwide, Inc), Equity Purchase Agreement (Siyata Mobile Inc.)
Material Contracts. (ia) SECTION 3.14 of the Company Disclosure Schedule 3.1(p)(i) contains a list lists, as of all Material the date hereof, each of the following types of Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company its Subsidiaries is a party or by which any of their respective properties or assets is bound and under which any party thereto has continuing rights or obligations (in each case, excluding any Company Benefit Plan) (such Contracts of the type described in this SECTION 3.14(a), whether or not set forth in SECTION 3.14 of the Company Disclosure Schedule, the “Material Contracts”):
(i) any 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) any Contract that (A) limits the ability of the Company or any of its Subsidiaries to compete in any material respect in any line of business or with any Person or in any geographic area, (B) requires the Company or any of its Subsidiaries is otherwise bound. A trueto conduct any business on a “most favored nations” basis with any third party, correct and complete copy (C) grants a third party marketing or distribution rights relating to any compound or product being developed by the Company or any Subsidiary of each Material Contract has been furnished the Company, whether or made available not yet on the market, (D) requires the Company to Parent purchase a minimum quantity of goods or its representatives.supplies relating to any compound or product being developed by the Company or any Subsidiary of the Company, whether or not yet on the market, in favor of any third party or (E) provides for “exclusivity” or any similar requirement in favor of any third party;
(iiiii) Material Contracts any Contract governing any joint venture, partnership or similar arrangement;
(iv) any Contract constituting Indebtedness and having an outstanding principal amount in excess of the Company and the Company Subsidiaries $10,000;
(“Material Contracts”v) shall include:any Contract with any Governmental Entity (excluding Permits);
(vi) any Contract with (A) any Contracts with third parties which would be reasonably expected to involve payments to directors or from officers of the Company or a any of its Subsidiaries, or (B) any Person that, by itself or together with its Affiliates or those acting in concert with it, beneficially owns, or has the right to acquire beneficial ownership of, at least five percent (5%) of the outstanding shares of Common Stock, other than with respect to clause (A) (x) employee benefits provided under Company Subsidiary Benefit Plans, (y) standard confidentiality and assignment of $1,000,000 inventions agreements in the form previously provided to Parent and (z) any Contracts related to the purchase or more issuance of Shares and the issuance of Company Options;
(vii) any Contract which, upon the execution or delivery of this Agreement or the consummation of the transactions contemplated by this Agreement may, either alone or in combination with any other event, result in any twelve payment (12whether of severance pay or otherwise) month periodbecoming due from the Company, Parent or any of their respective Subsidiaries to any officer or employee of the Company or any of its Subsidiaries;
(viii) any Contract pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells any of its Subsidiaries licenses to (an “Outbound IP Agreement”) or purchases hydrocarbons or the products therefrom;
licenses from (Ban “Inbound IP Agreement”) any Contracts for third party any Intellectual Property that is used in the construction conduct of gathering or other pipeline systems or processingthe business of the Company and the Subsidiaries of the Company as currently conducted, compression, treating or storage facilities other than including any such Contracts Intellectual Property that are reasonably expected is used in or related to require aggregate payments the development, marketing, labeling, promotion, sale, use, handling or manufacture of less than $2,500,000 each FDA Regulated Product and any other compound or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment product being developed by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, whether or not yet on the counterparties theretomarket; provided, and is in full force and effect and is enforceable against that the Company or shall not be required to list the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.following Contracts on SECTION 3.14
Appears in 2 contracts
Sources: Merger Agreement (Acer Therapeutics Inc.), Merger Agreement (Zevra Therapeutics, Inc.)
Material Contracts. (ia) Section 5.23(a) of the Company Disclosure Schedule 3.1(p)(iLetter sets forth a true, correct and complete list, as of the date hereof, and the Company has made available to Parent and Bidco (or Parent’s outside counsel) contains a list true, correct and complete (subject to any necessary redactions of all Material Contracts privileged or competitively sensitive information) copies of, each Contract (other than Company Benefit Plans), which is in effect as defined in Section 3.1(p)(iiof the date hereof (or pursuant to which the Company or its Subsidiaries has any continuing material obligations thereunder) below) to and under which the Company or any of the Company its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets are bound that:
(i) would be required to be filed by the Company Subsidiaries is otherwise bound. A trueas a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on the Company’s Annual Report on Form 10-K for the year ended December 31, correct and complete copy 2024 or any Company SEC filings filed after the date of each Material Contract has been furnished or made available to Parent or its representatives.filing on such Form 10-K until the date of this Agreement;
(ii) Material involves, by its terms, aggregate payments by the Company or its Subsidiaries or aggregate payments payable to the Company or its Subsidiaries under such Contract of more than $500,000 in the most recent fiscal year ended December 31, 2024 or in any single fiscal year thereafter (other than Contracts with professional service providers);
(iii) (A) contains covenants that limit in any material respect the freedom of the Company and or any of its Subsidiaries to compete or engage in any line of business or in any geographic area, (B) restricts the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from right of the Company or a any of its Subsidiaries to use the Company Subsidiary Intellectual Property Rights (C) contains any “most favored nation”, “right of $1,000,000 first offer”, “right of first access”, “right of first look”, “right of first negotiation”, or more in “right of first refusal” or similar rights or (D) contains any twelve exclusivity obligations or similar restrictions;
(12iv) month periodinvolves any severance, termination or similar payment to any current or former Company Service Provider pursuant to which the Company or a its Subsidiaries may be obligated to make any retention bonus or similar payment to any current or former Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefromService Provider;
(Bv) any Contracts provides for the construction indemnification (or reimbursement or advancement of gathering legal fees or other pipeline systems or processingexpenses, compression, treating or storage facilities other than advances for reimbursable ordinary course business expenses or advances of expenses to directors and employees pursuant to the Company Organizational Documents or existing indemnification agreements) of any such Contracts that are reasonably expected to require aggregate payments current or former director, officer or employee of less than $2,500,000 or are terminable by the Company or its Subsidiaries;
(vi) provides for or governs the formation, creation, investment in, operation, management or control of any partnership, joint venture, strategic alliance, collaboration or material research or development project or similar arrangement;
(vii) is a Real Property Lease;
(viii) provides for the grant by any third party to the Company or any of its Subsidiaries of any license, sublicense, right, interest or option with respect to any Intellectual Property Rights that are material to the business of the Company or its Subsidiaries or applicable to any Company Subsidiary on sixty Product or field of use, other than Incidental Contracts;
(60ix) days’ notice or less without payment provides for the grant by the Company or any Company Subsidiary of its Subsidiaries to any third party of any penaltylicense, sublicense, right, interest or option with respect to any Company Intellectual Property Rights, other than Incidental Contracts;
(Cx) any Contracts (not described in clause (A) governs the terms of any current ongoing clinical Research Program (including the generation or collection of data from any current ongoing clinical Research Program) or (B) abovespecifically provides for the generation of clinical data in connection with any Company Product or current ongoing clinical Research Program or the generation of non-clinical or pre-clinical data outside of the ordinary course of business, in each case of (A) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve and (12) month periodB), other than Contracts relating to entered into in the sale ordinary course of obsolete or excess assets not required business solely for the Company’s operations in conduct of clinical trials substantially consistent with the Ordinary Course form agreement made available to Parent;
(xi) involves the provision by any third party of Business and Contracts that are terminable by research or development services to the Company or any Subsidiary with respect to Company Products or relates to distribution, sale, importation, exportation, marketing partnership or co-promotion activities with respect to any Company Product;
(xii) involves (A) the disposition, directly or indirectly, of any material assets or business of the Company or its Subsidiaries or (B) the acquisition, directly or indirectly (by merger or otherwise), of a business, capital stock or other Equity Securities of another Person or material assets of another Person;
(xiii) involves the manufacture or supply of any Company Subsidiary on sixty (60) days’ notice Product, including any active pharmaceutical ingredient or less without payment other material component of such Company Product, by or for the Company or any Subsidiary, including any “take or pay” agreement that provides for minimum supply or minimum purchase obligations by the Company or any Company Subsidiary of any penaltySubsidiary;
(Dxiv) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party contains continuing obligations involving (including any Company Member Interest Holder or Affiliate thereof);
(EA) any outstanding futures“earnout”, swap, collar, put, call, floor, cap, option, hedging, forward sale “milestone” or other derivative Contracts involving hydrocarbons similar contingent payments, including upon the achievement of regulatory or commercial milestones, (B) payment of royalties or other commodities;
(F) any Contracts relating to the acquisition (by mergeramounts calculated based upon sales, purchase of stock revenue, income or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations similar measure of the Company or any Company Subsidiary and which could reasonably require Product or (C) any deferred payments for the payment purchase of monies by the Company any properties, assets or any Company Subsidiary to the applicable sellers thereunderservices;
(Gxv) each joint venture, partnership or any other Contract involving a sharing of profits or losses by obligates the Company or any of the Company its Subsidiaries with to make any other Personcapital contribution, loan or similar expenditure;
(Hxvi) each is a Contract with (A) a Governmental Authority or (B) any directoracademic institution, officer, member, employee or Affiliate other than Contracts with academic institutions entered into in the ordinary course of business solely for the conduct of clinical trials;
(xvii) requires the Company or any of its Subsidiaries (or, following the Closing, Parent or any of its Affiliates) to use commercially reasonable, diligent (or similar) efforts related to research, development, regulatory approval, commercialization, sales or marketing of any Company Product;
(xviii) relates to indebtedness for borrowed money or the granting of Liens over material assets or properties of the Company Subsidiaries; andand its Subsidiaries (other than Permitted Liens);
(Ixix) involves the Loan Agreements and each other indenture, mortgage, promissory note settlement or compromise of any pending or threatened Legal Proceeding; or
(xx) limits the freedom or right of the Company or its Subsidiaries to solicit or hire any employees or other agreement service providers, other than commercial arrangements entered into in the ordinary course of business, provided that any limitations or commitment for restrictions set forth therein contain customary carveouts and are not material to the borrowing Company and its Subsidiaries. Each Contract of moneythe type described in clauses (i) through (xx) above, whether entered prior to, on or for after the date hereof, other than a line of creditCompany Benefit Plan, is referred to herein as a “Material Contract”.
(iiib) Except as set forth would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company Disclosure Schedule 3.1(p)(iii)and its Subsidiaries, as applicable and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, subject to the Enforceability Exceptions, and (ii) the Company and its Subsidiaries have complied with all obligations required to be performed or complied with by it under each Material Contract, (iii) there is no default under any Material Contract by the Company or its Subsidiaries, or, to the Knowledge of the Company, by any other party thereto and (iv) to the Knowledge of the Company, neither the Company nor any of its Subsidiaries is a party to:
(A) has received any Contract containing covenants that in written notice from any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in that such party intends to terminate such Material Contract for any default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contractalleged default thereunder.
Appears in 2 contracts
Sources: Transaction Agreement (Verona Pharma PLC), Transaction Agreement (Verona Pharma PLC)
Material Contracts. (i) Company The Disclosure Schedule 3.1(p)(i) contains Letter sets forth a list of all Material (i) Contracts (as defined in Section 3.1(p)(ii) below) to which the Company for borrowed money or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A trueguarantees thereof, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts to acquire or dispose of the Company and the Company Subsidiaries any businesses or any material assets, (“Material Contracts”iii) shall include:
(A) Contracts involving any Contracts with third parties which would be reasonably expected swap or option transaction relating to involve payments to commodities, interest rates, foreign exchange, or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering currency or other pipeline systems or processing, compression, treating or storage facilities other than any such similar transactions customarily known as a derivative ("Derivatives"); (iv) Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment containing an agreement by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of restricting its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof ability to engage in any line of business or other activity; (v) Contracts entered into by the Company, any of its Subsidiaries or their respective predecessors since December 1, 1991 involving the purchase, sale or other acquisition or disposition by such parties of one or more business units, divisions or entities (including former Subsidiaries) with respect to compete with which the Company's or any Person; or
of its Subsidiary's surviving liability (B) any Contract that grants including indemnities), or other obligations (including deferred payment and earn-out obligations), could reasonably be expected to exceed $1,000,000, or which require funds to be held in trust or escrow for the benefit of a third Person a right party; (vi) Contracts involving the investment, including by way of first refusalcapital contribution, optionloan or advance, preferential right or similar right to acquire properties or assets of by the Company or any of its Subsidiaries of more than $3,000,000 in any other person, firm or entity; (vii) Contracts to purchase powder metals or atmospheres that are material to the Company Subsidiary and its Subsidiaries and (viii) other Contracts which involve the payment or any Contract that grants receipt of $5,000,000 or more per year. All Contracts to a third party a power of attorney of which the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract of its Subsidiaries is a party or by which any of their respective assets is bound are valid and binding agreement of binding, in full force and effect and enforceable against the Company or the Company Subsidiaryany of its Subsidiaries, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge knowledge of the Company, the other parties thereto, as the case may be, thereto in accordance with its their respective terms, except subject to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance insolvency or other similar laws now or hereafter in effect relating to creditors’ ' rights generally and (B) general principles of equity (regardless of whether enforceability is considered equity, except where the failure to be so valid and binding, in a proceeding at law full force and effect or enforceable would not individually or in equity)the aggregate have a Material Adverse Effect. Neither the Company nor There is not under any Company Subsidiary is in default or breach in such Contract, any material respectexisting default, or has received written notice of any material default or breach (or any event thatevent, with which after notice or lapse of time time, or both, would constitute a material default default, by the Company or breach)any of its Subsidiaries, under or to the terms of Company's knowledge, any other party, other than any such defaults or event which, individually or in the aggregate, would not have a Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Sinter Metals Inc), Merger Agreement (GKN Powder Metallurgy Inc)
Material Contracts. (i) Company Disclosure 3.11.1 Schedule 3.1(p)(i) contains 3.11 sets forth a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts list, as of the Company and the Company Subsidiaries date hereof, of all contracts, commitments, licenses, agreements, obligations or arrangements, whether oral or written, formal or informal, to which a Borrower is a party (“Material Contracts”or intends to become a party) shall includeor to which any of their respective assets or properties is bound:
(Aa) any Contracts with under which a Borrower leases personal property from or to third parties under Capital Leases or under operating leases which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary in excess of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom25,000 per annum;
(b) for the purchase or sale of products or other personal property or for the furnishing or receipt of services (A) which calls for performance over a period of more than one (1) year, (B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate which involves payments of less more than $2,500,000 50,000 in the aggregate or (C) in which a Borrower has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from any Person which involves payments in excess of $50,000, but excluding purchase orders or sales contracts which are terminable revocable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penaltyBorrower;
(Cc) any Contracts (not described in clause (A) granting representation, marketing or distribution rights or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete Intellectual Property (including, without limitation, license, franchise or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereofsimilar agreements);
(Ed) establishing or maintaining any outstanding futurespartnership, swapjoint venture or strategic alliance or pursuant to which any Borrower has purchased the assets, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests Securities of any other Person which contain continuing obligations of during the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunderlast three (3) years;
(Ge) each joint venture, partnership under which there is or any may be imposed a security interest or other Contract involving a sharing of profits or losses by the Company or Lien on any of its assets, whether tangible or intangible (other than the Company Subsidiaries with any other Personsecurity interests or Liens granted in favor of the Purchaser);
(Hf) each Contract with concerning any director, officer, member, employee non-competition or Affiliate non-solicitation obligations entered into outside the ordinary course of the Company business;
(g) under which a Borrower is or would be restricted from carrying on its Business or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of moneypart thereof, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage from competing in any line of business or to compete with any Person; or;
(Bh) with officers, directors, employees or consultants of any Contract that grants Borrower;
(i) resulting in or providing for the creation of any Lien (including any lease notifications) other than any Permitted Lien;
(j) involving any Affiliates of any Borrower;
(k) under which the consequences of a default or termination could reasonably be likely to have a third Person a right Material Adverse Effect or result in an Event of first refusal, option, preferential right or similar right Default; and
(l) not entered into in the ordinary course of business and not otherwise disclosed on Schedule 3.11 in response to acquire properties or assets any of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney foregoing clauses. All of the Company contracts, commitments, licenses, agreements, obligations or any Company Subsidiaryarrangements described in clauses (a) through (l) above, together with the real property leases, subleases, licenses and other interests described in Section 3.16, whether entered into prior to, on or after the Closing Date, are collectively referred to herein as the “Material Contracts.”
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each 3.11.2 Each Material Contract existing as of the date hereof is a legal, valid and binding agreement obligation of each applicable Borrower that is a party thereto, on the Company or the Company Subsidiaryone hand, as the case may be, party thereto and, and to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the CompanyBorrowers, the other parties thereto, as on the case may beother hand, enforceable against each of them in accordance with its terms, except to the extent that the as enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other similar laws now or hereafter in effect relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in full force and effect. The parties to each Material Contract are in substantial compliance with the terms thereof, and no default or breach in event of default by any material respectBorrower or, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To to the Knowledge of the CompanyBorrowers, no counterparty any other party thereto exists thereunder.
3.11.3 No Borrower is a party to any Material Contract is in default contract, commitment, license, agreement, obligation or breacharrangement that restricts it from carrying on its Business or any part thereof, or from competing in any material respect, line of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contractbusiness or with any other Person.
Appears in 2 contracts
Sources: Securities Purchase and Sale Agreement (Vintage Capital Group, LLC), Securities Purchase and Sale Agreement (Caprius Inc)
Material Contracts. (a) This Agreement, the Company Benefit Plans, the Contracts filed with the SEC as exhibits to the Filed SEC Documents, and those Contracts listed in Section 4.19 of the Company Disclosure Letter (such contracts, collectively, the “Company Material Contracts”) constitute all of each of the following Contracts, whether written or oral (without duplication), that the Company or any of its Subsidiaries is a party to or bound by as of the date hereof: (i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts any “material contract” (as such term is defined in Section 3.1(p)(iiItem 601(b)(10) belowof Regulation S-K of the SEC) of the Company; (ii) any employment, severance or consulting Contract or offer letter with an employee or former employee, officer or director of the Company or any Subsidiary of the Company that will require the payment of amounts by the Company or any Subsidiary of the Company, as applicable, after the date hereof in excess of $200,000 per annum, other than those employment agreements, offer letters and/or employment contracts that are terminable at-will by the Company or a Subsidiary, as applicable, on no more than one month’s notice or the minimum required notice period under applicable law; (iii) any collective bargaining Contract, or any other agreement or work rule or practice with any labor union, labor organization or works council; (iv) any Contract for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $5,000,000; (v) any Contract containing covenants of the Company or any Subsidiary of the Company to indemnify or hold harmless another Person or group of Persons, unless such indemnification or hold harmless obligation to such Person, or group of Persons, as the case may be, would not reasonably be expected to exceed a maximum of $2,000,000; (vi) any Contract that limits or purports to limit, in any material respect, the ability of the Company or any of its Subsidiaries or Affiliates (including, following the Merger, Parent or any of its Subsidiaries or Affiliates, including the Surviving Corporation) to engage in any line of business or compete with or obtain products, commodities or services in any geographic area; (vii) any license, royalty Contract or other Contract with respect to Intellectual Property which, pursuant to the terms thereof, requires payments by the Company or any Subsidiary of the Company in excess of $500,000 per annum; (viii) any Contract pursuant to which the Company or any Subsidiary of the Company Subsidiaries is has entered into a party partnership or by which the Company or joint venture with any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
other Person; (ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(Aix) any Contracts with third parties which would be reasonably expected to involve payments to indenture, mortgage, loan, guarantee or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts credit Contract under which the Company or any Subsidiary of the Company Subsidiary assumed has outstanding indebtedness or guaranteed any outstanding Debt note, bond, indenture or other evidence of indebtedness for borrowed money or otherwise or any guaranteed indebtedness for money borrowed by others, in each case, for or guaranteeing an amount in excess of $5,000,000, other than any such indebtedness between the Company (whether as creditor or debtor) and any wholly owned Subsidiary of the Company or between any wholly owned Subsidiaries of the Company; (x) any Contract under which the Company or any Subsidiary of the Company is (A) a lessee of real property, (B) a lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third party Person, (including C) a lessor of real property, or (D) a lessor of any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) tangible personal property owned by the Company or any Company Subsidiary of the Company, in each case which requires annual payments in excess of $500,000; (xi) any operating business or equity interests of any Contract other Person than a Company Benefit Plan which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies requires payments by the Company or any Subsidiary of the Company Subsidiary in excess of $500,000 per annum containing “change of control” or similar provisions; (xii) all sole source or material limited source supply agreements; (xiii) any Contract (other than Contracts of the type described in subclauses (i) through (xii) above) that involves aggregate payments by or to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any Subsidiary of the Company Subsidiaries in excess of $500,000 per annum; and (xiii) any Contract the termination or breach of which, or the failure to obtain consent in connection with any other Person;
(H) the transactions contemplated hereby in respect of which, would have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has delivered or made available to Parent prior to the date of this Agreement complete and correct copies of each Company Material Contract with any director, officer, member, employee or Affiliate listed in Section 4.19 of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of creditDisclosure Letter.
(b) (i) Each Company Material Contract is valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and in full force and effect, except where the failure to be valid, binding and in full force and effect, either individually or in the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect, (ii) the Company and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each Company Material Contract, except where such noncompliance, either individually or in the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect, and (iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default the existence of any, and to the knowledge of the Company there exits no, event or breach (or any event thatcondition which constitutes, with or, after notice or lapse of time or both, would constitute will constitute, a material default on the part of the Company or breach), any of its Subsidiaries under the terms of any such Company Material Contract. To , except where such default, either individually or in the Knowledge of the Companyaggregate, no counterparty would not have or reasonably be expected to any have a Company Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Thermo Fisher Scientific Inc.), Agreement and Plan of Merger (Dionex Corp /De)
Material Contracts. Except for this Agreement and for the Contracts filed with the SEC by the Company as exhibits to reports, schedules, forms, statements, and other documents and publicly available on ▇▇▇▇▇ prior to the date of this Agreement, Section 4.01(p) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of:
(i) each Contract that would be required to be filed by the Company Disclosure Schedule 3.1(p)(ias a “material contract” pursuant to Item 601(b)(10) contains a list of all Material Contracts Regulation S-K under the Securities Act;
(as defined in Section 3.1(p)(iiii) below) each Contract to which the Company or any of the Company its Subsidiaries is a party or by which that materially restricts the ability of the Company or any of its Subsidiaries to compete in any business or with any person in any geographical area or grants a material right of first refusal or first offer or similar right (or will impose such limitations on Parent or any of its Affiliates following the Offer or the Merger);
(iii) each Contract that requires payments by or to the Company and/or its Subsidiaries is otherwise bound. A truein an amount in excess of five hundred thousand dollars ($500,000) per annum, correct and complete copy except for any such Contract that may be canceled, without penalty or other liability to the Company or any of each Material Contract has been furnished its Subsidiaries, upon notice of 90 days or made available to Parent less other than sales or its representatives.purchase orders in the ordinary course of business;
(iiiv) Material Contracts each Contract relating to indebtedness for borrowed money in excess of five hundred thousand dollars ($500,000) or providing for the creation of any encumbrance upon any of the material assets of the Company and the Company Subsidiaries (“Material Contracts”) shall include:or any of its Subsidiaries;
(Av) any Contracts with third parties which would be reasonably expected to involve payments to each Contract that is a material license, sublicense or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other contract pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company is authorized to use any third party Intellectual Property that is material to the business of the Company, excluding generally commercially available, off-the-shelf software programs, or applicable Company Subsidiary on sixty pursuant to which any third party (60x) days’ notice or less without payment is authorized to use Material Intellectual Property owned by the Company or any Company Subsidiary of any penaltythe Company that is material to the business of the Company or (y) has obtained and continues to have exclusive rights in Material Intellectual Property;
(Cvi) each Contract with respect to co-promotion of, or collaboration with respect to, any product or product candidate or drug discovery platform, a material joint venture or material partnership agreement (excluding information technology Contracts (not described in clause (A) or (B) above) which would be reasonably expected license or similar agreements with respect to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereofIntellectual Property);
(Evii) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale each Contract which would prohibit the consummation of the Offer or other derivative Contracts involving hydrocarbons or other commodities;the Merger; and
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(Gviii) each joint venture, partnership Contract with or any other Contract involving a sharing of profits or losses by binding upon the Company or any of its Subsidiaries or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act. Each such Contract described in clauses (i) through (viii) above is referred to herein as a “Company Material Contract”. Including Contracts filed with the SEC by the Company Subsidiaries with any as exhibits to reports, schedules, forms, statements, and other Person;
(H) documents and publicly available on ▇▇▇▇▇ prior to the date of this Agreement, the Company has previously made available to Parent complete and accurate copies of each Contract with any director, officer, member, employee or Affiliate Company Material Contract. Each of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries Material Contracts is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of on the Company or the Subsidiary of the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect and that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There is enforceable against no default under any Company Material Contract by the Company or the applicable Company Subsidiary, andany of its Subsidiaries or, to the Knowledge of the Company, the by any other parties party thereto, as and no event has occurred that with the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, the giving of notice or both would constitute a material default thereunder by the Company or breach)any of its Subsidiaries or, under the terms of any such Material Contract. To to the Knowledge of the Company, no counterparty to by any Material Contract is in default or breachother party thereto, in any material respecteach case except as would not reasonably be expected to have, of such individually or in the aggregate, a Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (King Pharmaceuticals Inc), Merger Agreement (Alpharma Inc)
Material Contracts. (a) Except (x) as set forth on Section 6.16(a) of the Caesars Disclosure Schedule and (y) solely with respect to subsections (i), (v) Company Disclosure Schedule 3.1(p)(iand (vi) contains a list of all Material Contracts (as defined in this Section 3.1(p)(ii) below) 6.16(a), for any Contract to which CEOC or an Affiliate of Parent (other than any Company Party or its Subsidiaries) is party or by which CEOC or an Affiliate of Parent (other than any Company Party or its Subsidiaries) is bound which is binding upon any Company Party or its Subsidiaries in substantially the same manner as such Contract is binding upon other Subsidiaries of CEOC or Parent, (other than, in the case of any Contracts described in the foregoing clause (y), any Contracts which involve any payments directly by or to any Company Party or its Subsidiaries, including through an allocation to any Company Party or its Subsidiaries, in excess of the amounts set forth in subsections (i), (v) and (vi) of this Section 6.16(a)), none of the Company Parties or their respective Subsidiaries is a party to or bound by which the Company or any of the following Contracts as of the date of this Agreement (each a “Material Contract”):
(i) any Contract that, by its terms, requires payments by any Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent Party or its representatives.Subsidiaries in excess of $750,000 per annum or $1,500,000 in the aggregate for the stated term of such Contract or which may not be terminated by such Company Party or its Subsidiaries within twelve (12) months from the date of this Agreement without such Company Party or its Subsidiaries being obligated to pay any penalty, premium or additional payments in amounts greater than $750,000 in respect of such Contract;
(ii) Material Contracts any Contract for Indebtedness of any Company Party or its Subsidiaries or any Contract granting any Person a Lien (other than a Permitted Lien) on all or any part of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefromPurchased Interests;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in pursuant to which CLC or any way purport Company Party or its Subsidiaries has agreed to restrict or prohibit, in any material respect, restriction on the business activity right of the Company CLC or any of the Company Party or its Subsidiaries to use or materially limit the freedom of the Company enforce any Purchased Intellectual Property or Other Material IP, other than with respect to commercially available software, or (B) any material Contract pursuant to which CLC or any Company Party or its Subsidiaries agrees to license, encumber, transfer or sell rights in or with respect to any Purchased Intellectual Property, other than any non-exclusive licenses entered into by CLC or any Company Party or its Subsidiaries in the ordinary course of business;
(iv) any Contract containing any covenant materially limiting the ability of any Company Party or its Subsidiaries thereof to engage in any line of business or in any territory or to compete with any Personbusiness or Person or that otherwise materially limits any Company Party or its Subsidiaries to conducting its business in the manner it is currently conducted;
(v) any joint venture, partnership or similar Contract, which involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons in excess of $750,000 annually;
(vi) any Contract that involves royalties payable to another Person in excess of $750,000 annually;
(vii) any Contract pursuant to which any Company Party or its Subsidiaries has acquired a business or entity (or any equity interest therein), or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets or exclusive license and pursuant to which the Company has any continuing material obligations as of the date hereof; or
(Bviii) any other Contract or obligation not listed in clauses (i) through (vii) that grants is otherwise material to a third Person a right of first refusal, option, preferential right any Company Party or similar right to acquire properties or assets its Subsidiaries.
(b) (i) Each Material Contract is valid and binding upon each of the Company Parties or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, their respective Subsidiaries party thereto (and, to the Knowledge of the CompanyCaesars Parties, the counterparties on all other parties thereto), in accordance with its terms and is in full force and effect and effect, (ii) there is enforceable against the no breach or violation of or default by any Company Party or the applicable Company Subsidiary, andits Subsidiaries or, to the Knowledge of the CompanyCaesars Parties, by any other party under any material provision of the other parties theretoMaterial Contracts, as the case may bewhether or not such breach, in accordance violation or default has been waived, and (iii) no event has occurred with respect to any Company Party or its termsSubsidiaries or, except to the extent that Knowledge of the enforcement thereof may be limited by (A) applicable bankruptcyCaesars Parties, insolvencyany other party, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event thatwhich, with notice or lapse of time or both, would constitute a breach, violation or default of, or give rise to a right of termination, modification, cancellation, foreclosure, imposition of a Lien, prepayment or acceleration under, any material default provision of the Material Contracts. None of the Caesars Parties or breach)any of their respective Affiliates has received any written notice (or, under the terms of any such Material Contract. To to the Knowledge of the CompanyCaesars Parties, no counterparty any oral or other notice) of the intention of any Person to terminate, nor has there been any Material Contract is in default or breachtermination of, in any material respect, of such Material Contract. The Company has Caesars Parties have made available to Parent prior to the date hereof Growth Partners a true true, correct and correct complete copy of each all Material ContractContracts, together with all amendments, waivers or other changes thereto.
Appears in 2 contracts
Sources: Transaction Agreement (CAESARS ENTERTAINMENT Corp), Transaction Agreement (Caesars Acquisition Co)
Material Contracts. (ia) Except for this Agreement, any Employee Plans and the Contracts filed as exhibits to the Company SEC Documents that are available as of the date of this Agreement, Section 4.21(a) of the Company Disclosure Schedule 3.1(p)(i) Letter contains a list complete and correct list, as of all Material the date of this Agreement, of each of the following Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company its Subsidiaries is a party or which bind their respective properties or assets, and except as provided in this Section 4.21(a), to the extent that any such Contract is to be performed in whole or in part or is a Contract under which the Company or its Subsidiaries has any material obligations after the date hereof:
(i) each Contract that involves performance of services or delivery of goods, products or developmental, consulting or other services commitments by the Company or any of its Subsidiaries, that provided for payments to the Company or any of its Subsidiaries of $6,000,000 or more in the Company’s fiscal year ended December 26, 2020, or is reasonably expected to result in such payments in the Company’s current fiscal year, other than Contracts terminable by the Company or one of its Subsidiaries on no more than 120 days’ notice without liability, payment or ongoing obligation on the part of the Company or any of its Subsidiaries;
(ii) each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other services commitments to the Company or any of its Subsidiaries, or the payment therefor by the Company or any of its Subsidiaries, and that provided for payments by the Company of $6,000,000 or more in the Company’s fiscal year ended December 26, 2020, or is reasonably expected to result in such payments in the Company’s current fiscal year, other than Contracts terminable by the Company or one of its Subsidiaries on no more than 120 days’ notice or in connection with an annual renewal without liability, payment or ongoing obligation on the part of the Company or any of its Subsidiaries;
(iii) each Contract that contains any provisions restricting the Company or any of its Subsidiaries from competing or engaging in any activity or line of business or with any Person or in any area or pursuant to which any benefit or right is required to be given or lost as a result of so competing or engaging or which, pursuant to its terms, is reasonably expected to have such effect after the Closing solely as a result of the consummation of the transactions contemplated hereby, except for such restrictions that are not material to the Company or its Subsidiaries, taken as a whole;
(iv) each material Contract that (A) grants any exclusive rights to any Third Party, including any exclusive license or supply or distribution agreement or other exclusive rights or which, pursuant to its terms, would reasonably be expected to have such effect after the Closing solely as a result of the consummation of the transactions contemplated hereby, (B) grants any rights of first refusal or rights of first negotiation to any Third Party with respect to any product, service or Company Intellectual Property, (C) contains any provision that requires the purchase of all or any portion of the Company’s or any of its Subsidiaries’ requirements from any Third Party or (D) grants “most favored nation” rights, except in the case of each of clauses (A), (B), (C) and (D) for such rights and provisions that are not material to the Company and its Subsidiaries, taken as a whole;
(v) each material Contract pursuant to which the Company or any of its Subsidiaries is granting or is granted any license to Intellectual Property (other than nonexclusive licenses granted in the ordinary course of business), except for (a) Contracts with current and former employees, contractors, or consultants of the Company Subsidiaries is otherwise bound. A trueor any of its Subsidiaries, correct (b) nondisclosure agreements, (c) licenses for open source software, (d) non-exclusive licenses to available commercial software and complete copy of each Material Contract has been furnished or made available (e) any other agreements that are not material to Parent or the Company and its representatives.Subsidiaries, taken as a whole;
(iivi) Material Contracts each Contract relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (A) with an available principal amount (whether or not such available principal amount is outstanding) not exceeding $6,000,000 or (B) between or among any of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefromits Subsidiaries;
(Bvii) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts each Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (except for the Company Subsidiary assumed or guaranteed any outstanding Debt of a third party its Subsidiaries), other than (including any Company Member Interest Holder or Affiliate thereof)A) extensions of credit in the ordinary course of business and (B) investments in marketable securities in the ordinary course of business;
(Eviii) each Contract under which the Company or any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale of its Subsidiaries has any obligations (including indemnification obligations) which have not been satisfied or performed (other derivative Contracts involving hydrocarbons or other commodities;
(Fthan confidentiality obligations) any Contracts relating to the acquisition or disposition of all or any portion of any business or the assets or properties of any business (whether by merger, purchase sale of stock or shares, sale of assets or otherwise) for consideration in excess of $10,000,000, except for acquisitions or dispositions of inventory, properties and other assets in the ordinary course of business;
(ix) each partnership, joint venture or other similar Contract or arrangement that is material to the Company and its Subsidiaries, taken as a whole;
(x) each Contract between the Company or any of its Subsidiaries, on the one hand, and any current director or officer of the Company or any Person (or any of their Affiliates) beneficially owning five percent or more of the Company Stock or OpCo Units, on the other hand, except for any commercial Contracts entered into on arm’s length terms in the ordinary course of businesses and except for any Employee Plans;
(xi) each Contract entered into since January 1, 2021 in connection with the settlement or other resolution of any Action under which the Company or any of its Subsidiaries have any material continuing obligations, liabilities or restrictions, or that involved payment (or an obligation to make a payment) by the Company or any Company Subsidiary of any operating business or equity interests its Subsidiaries of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereundermore than $6,000,000;
(Gxii) each joint venture, partnership Contract or agreement with any other Contract involving a sharing of profits or losses by Governmental Authority under which the Company or any of its Subsidiaries received payments in excess of $6,000,000 in the Company Subsidiaries with any other PersonCompany’s fiscal year ended December 26, 2020, or is reasonably expected to result in such payments in the Company’s current fiscal year;
(Hxiii) each Contract with any director, officer, member, employee or Affiliate of required to be filed by the Company or any pursuant to Item 601(b)(10) of Regulation S-K under the Company Subsidiaries1933 Act; and
(Ixiv) each Contract that commits the Loan Agreements and each other indenture, mortgage, promissory note Company or other agreement or commitment for its Subsidiaries to enter into any Contracts of the borrowing of money, or for a line of credittypes described in the foregoing clauses (i) through (xiv).
(iiib) Except as set forth would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Company Disclosure Schedule 3.1(p)(iii)the Company, neither as of the date hereof, each Contract filed as an exhibit to the Company nor any of its Subsidiaries is a party to:
(ASEC Documents or required to be disclosed in Section 4.21(a) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company Disclosure Letter or any of such type entered into after the Company Subsidiaries date of this Agreement (each, a “Material Contract”) (unless it has terminated or materially limit the freedom of the Company or any of the Company Subsidiaries thereof expired (in each case according to engage its terms)) is in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract full force and effect and is a legal, valid and binding agreement of the Company or the Company its Subsidiary, as the case may be, party thereto and, to the Knowledge knowledge of the Company, the counterparties of each other party thereto, and is in full force and effect and is enforceable against the Company or the applicable Company such Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, and, to the knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms, terms except to the extent that the enforcement thereof as such enforceability may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or moratorium and other similar laws now or hereafter in effect relating to Applicable Law affecting creditors’ rights generally and (B) by general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary of its Subsidiaries nor, to the knowledge of the Company, any other party is in breach of or in default or breach in under any material respectMaterial Contract, or and no event has received written notice of any material default or breach (or any event occurred that, with notice or the lapse of time or the giving of notice or both, would constitute a material default thereunder by any party thereto, except for such breaches and defaults which would not, individually or breach)in the aggregate, under the terms of any such reasonably be expected to have a Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Material Contracts. (a) Section 3.18(a) of the Company Disclosure Schedule sets forth a true and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is subject, in each case as of the date hereof, but excluding any purchase orders, invoices, requisition forms, or other form purchasing documents and any Company Plans disclosed on Section 3.16(a) of the Company Disclosure Schedule:
(i) Company Disclosure Schedule 3.1(p)(i(A) contains any exclusivity or similar provision that is binding on the Company or any of its Subsidiaries (or would purport to be binding, after the Effective Time, on Parent or any of its Subsidiaries) or (B) otherwise limits or restricts the Company or any of its Subsidiaries (or would purport to limit or restrict, after the Effective Time, Parent or any of its Subsidiaries) from (1) engaging or competing in any line of business in any location or with any Person, (2) selling any products or services of or to any other Person or in any geographic region, or (3) obtaining products or services from any Person, in each case of clause (A) and clauses (1), (2) and (3) of clause (B), that is material to the Company and its Subsidiaries, taken as a list whole;
(ii) includes (A) any “most favored nation” terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries to a Third Party, or (B) any arrangement whereby the Company or any of its Subsidiaries grants any right of first refusal or right of first offer or similar right to a Third Party, in each case of clauses (A) and (B) that is material to the Company and its Subsidiaries, taken as a whole;
(iii) is a joint venture, strategic alliance or partnership agreement that either (A) is material to the Company and its Subsidiaries, taken as a whole, or (B) would reasonably be expected to require the Company and its Subsidiaries to make expenditures in excess of $300,000 in the aggregate during the 12-month period following the date hereof;
(iv) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly-owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $500,000 individually;
(v) is a Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $100,000;
(vi) is a material Contract with respect to any Company Intellectual Property Rights and not for “off-the-shelf” software or hardware generally commercially available on standard and non-discriminatory terms;
(vii) is an acquisition agreement, asset purchase or sale agreement, stock purchase or sale or purchase agreement or other similar agreement, in each case for the purchase or sale of a corporation, partnership, or other business organization or business thereof (including all Material Contracts or substantially all of the assets of such business), pursuant to which (as defined A) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries or (B) any other Person has the right to acquire any equity interests in Section 3.1(p)(iithe Company or any of its Subsidiaries;
(viii) belowis a settlement or similar agreement with any Governmental Authority or arbitrator (public or private) (including any corporate integrity agreement, monitoring agreement or deferred prosecution agreement) or order or consent of a Governmental Authority or arbitrator (public or private) (including any consent decree or settlement order) to which the Company or any of its Subsidiaries is subject involving performance on or after the date hereof by the Company or any of its Subsidiaries is and in an amount in excess of $100,000 individually;
(ix) any Contract (or series of related Contracts) pursuant to which the Company or any Subsidiary has continuing “earn-out” or similar obligations that could result in payments from the Company or any Subsidiary in an amount in excess of $100,000 per Contract;
(x) any Contract (or series of related Contracts) that creates an obligation of the Company or any of its Subsidiaries to make any capital commitment, loan or capital expenditure in an amount in excess of $100,000 per twelve-month period after the date hereof;
(xi) any Contract with the Subject Company Customers, Suppliers and Dealers;
(xii) any Contract that contains a party change in control provision that would be triggered in connection with consummation of the Transactions, provided that (i) such Contract has provided $100,000 or more of revenue to the Company or any of its Subsidiaries, individually or in the aggregate, in the twelve-month period prior to the date hereof, or would reasonably be expected to provide $100,000 or more of revenue to the Company or any of its Subsidiaries, individually or in the aggregate, in the twelve-month period after the date hereof or (ii) such change in control provision expressly requires aggregate payments by the Company or any its Subsidiaries, individually or in the aggregate, in excess of $100,000;
(xiii) any Contract (including any loan) between the Company or any of its Significant Subsidiaries, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary) of the Company or any of its Significant Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any of the its Significant Subsidiaries has an obligation to indemnify such officer, director, Affiliate or family member, but not including any Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.Plans;
(iixiv) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:any shareholder, investors rights, registration rights or similar agreement or arrangement;
(Axv) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, Contract pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells any of its Subsidiaries has continuing obligations or purchases hydrocarbons or the products therefrom;
interests involving (BA) any Contracts for the construction of gathering “milestone” or other pipeline systems similar contingent payments to be made to or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable any of its Subsidiaries upon the achievement of certain milestones, including upon the achievement of regulatory or commercial milestones or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company or any of its Subsidiaries, in each case (x) which payments after the date hereof would reasonably be expected to be: (i) in the case of suppliers and subcontractors, more than $200,000 in the twelve (12) month period following the date hereof, and (ii) in the case of employees and sales representatives, more than $100,000 in the twelve (12) month period following the date hereof, and (y) that cannot be terminated by the Company or such Subsidiary on without more than sixty (60) days’ notice without material payment or less without payment by the Company or any Company Subsidiary of any penalty;
(Cxvi) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month periodemployment, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futuresseverance, swap, collar, put, call, floor, cap, option, hedging, forward sale consulting or other derivative Contracts involving hydrocarbons agreements which provide for compensating or other commodities;
(F) any Contracts relating to providing benefits to, or that otherwise govern the acquisition (by mergerterms of employment of, purchase of stock present or assets former employees or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations consultants of the Company or its Subsidiaries, which provide for base compensation payable to any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate consultant of the Company or any of its Subsidiaries in excess of $100,000 per year;
(xvii) any material collective bargaining agreement or other material Contract with any labor union;
(xviii) any Contract (including any option agreement) to purchase or sell any interest in real property, and any Company Real Property Lease;
(xix) any Contract relating to the indemnification of a Company Indemnified Party that deviates from the form of indemnification agreement made available to Parent; or
(xx) any Contract that would be required to be filed by the Company Subsidiaries; and
as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company under Item 1.01 on a Current Report on Form 8-K. Each Contract of the type described in clauses (Ii) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for through (xx) is referred to herein as a line of credit“Company Material Contract”.
(iiib) Except for this Agreement or as set forth on in Section 3.18(a) of the Company Disclosure Schedule 3.1(p)(iii)Schedule, as of the date hereof, none of the Company or any of its Subsidiaries is a party to or bound by any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) that is to be performed after the date hereof that has not been filed as an exhibit to or incorporated by reference in a Company SEC Document.
(c) Each Company Material Contract is valid and binding and in full force and effect and, to the Company’s Knowledge, enforceable against the other party or parties thereto in accordance with its terms, except as such enforceability may be limited by the Enforceability Limitations. Since December 31, 2015, (i) except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is a Subsidiaries, nor to the Company’s Knowledge any other party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusalCompany Material Contract, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge violation of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respectprovision of, or has received written notice of taken or failed to take any material default or breach (or any event thatact which, with notice or without notice, lapse of time time, or both, would constitute a material default or breach), under the terms provisions of any such Company Material Contract, and (ii) neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Company Material Contract which has not been cured or resolved. To the Knowledge True and complete copies of the Company, no counterparty to any Company Material Contract is in default or breach, in Contracts and any material respect, of such Material Contract. The Company has amendments thereto have been made available to Parent prior to Parent.
(d) Section 3.18(d) of the Company Disclosure Schedule sets forth a true, complete and correct list of all Contracts providing for the lease of any telecommunication tower or similar structure by the Company or any of its Subsidiaries, including a true, accurate and complete description of the tower location, rental fees, term and renewal options contained therein, in each case as of the date hereof a true and correct copy of each Material Contracthereof.
Appears in 2 contracts
Sources: Merger Agreement (Id Systems Inc), Merger Agreement (Pointer Telocation LTD)
Material Contracts. (a) Section 3.9(a) of the Disclosure Schedules lists each of the following Contracts of the Company or any of its Subsidiaries (such Contracts, together with all Contracts set forth in Section 3.10(c) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract that cannot be cancelled by the Company Disclosure Schedule 3.1(p)(ior its Subsidiary without penalty or without more than thirty (30) contains days’ notice;
(ii) all Contracts that require the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a list third party or that contain “take or pay” provisions;
(iii) excluding any indemnification for infringement of Intellectual Property granted to customers of the Company in connection with the provision of the Company’s services, all Material Contracts that provide for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(as defined in Section 3.1(p)(iiiv) belowall Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Company or any of its Subsidiaries is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Company or any of the Company its Subsidiaries is a party and which are not cancellable without material penalty or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.without more than thirty (30) days’ notice;
(iivii) Material except for Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:relating to trade receivables, all Contracts relating to Indebtedness;
(Aviii) any all Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant Governmental Authority to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:(“Government Contracts”);
(Aix) any Contract containing covenants all Contracts that in any way limit or purport to restrict or prohibit, in any material respect, limit the business activity ability of the Company or any of the Company its Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage compete in any line of business or to compete with any Person; orPerson or in any geographic area or during any period of time;
(Bx) any Contract that grants Contracts to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of which the Company or any Company Subsidiary of its Subsidiaries is a party that provide for any joint venture, partnership or any Contract that grants to a third party a power of attorney of similar arrangement by the Company or any of its Subsidiaries;
(xi) all collective bargaining agreements or Contracts with any Union to which the Company Subsidiaryor any of its Subsidiaries is a party; and
(xii) any other Contract that is material to the Company or any of its Subsidiaries and not previously disclosed pursuant to this Section 3.9.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Each Material Contract is a valid and binding agreement of on the Company or the Company SubsidiarySubsidiary that is a party thereto in accordance with its terms and is in full force and effect subject, as to enforcement, to bankruptcy, insolvency, and other laws affecting creditors’ rights generally and to general principles of equity. None of the case may beCompany, party thereto andany of its Subsidiaries or, to the Knowledge of the Company, the counterparties thereto, and any other party thereto is in full force and effect and breach of or default under (or is enforceable against the Company alleged to be in breach of or the applicable Company Subsidiarydefault under), andor has provided or received any notice of any intention to terminate, to any Material Contract. To the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance no event or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or circumstance has received written notice of any material default or breach (or any event occurred that, with notice or lapse of time or both, would constitute a material an event of default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is or result in default a termination thereof or breachwould cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, in any material respect, of such Material Contract. The Company has amendments and supplements thereto and waivers thereunder) have been made available to Parent prior to the date hereof a true and correct copy of each Material ContractParent.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Quality Systems, Inc)
Material Contracts. (a) Except for Company Material Contracts filed as exhibits to the Company Reports prior to the date of this Agreement or, as listed in Section 3.14(a) of the Company Disclosure Letter, as of the date of this Agreement, neither the Company nor any of the Company Subsidiaries is a party to or bound by (i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts any “material contract” (as such term is defined in Section 3.1(p)(iiitem 601(b)(10) belowof Regulation S-K of the SEC) or (ii) any Contract that:
(A) is a “non-compete,” or similar agreement that restricts or purports to restrict the geographic area in which the Company or any of the Company Subsidiaries may conduct any line of business, or that requires the referral of business opportunities by the Company or any of the Company Subsidiaries that could reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole;
(B) relates to partnerships, joint ventures or similar arrangements pursuant to which the Company or any of the Company Subsidiaries is invests in any other Person that could reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a party or by which whole;
(C) relates to indebtedness of the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary in excess of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty1,000,000;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to provides for the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary disposition of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses assets by the Company or any of the Company Subsidiaries with any other Persona purchase price therefor in excess of $500,000;
(HE) each Contract with except for as required pursuant to the terms of any directorCompany Benefit Plan, officerprovides for transactions or arrangements between the Company or any of the Company Subsidiaries, memberon the one hand, employee and (I) any director or Affiliate officer of the Company or any of the Company Subsidiaries; and, (II) any record or beneficial owner of 5% or more of the voting securities of the Company or (III) any Affiliate of any such director, officer or record or beneficial owner, on the other hand;
(IF) is with on-air talent or employees providing services to the Loan Agreements Company or Company Subsidiaries and each other indentureinvolves a commitment for annual consideration in excess of $300,000;
(G) except for as required pursuant to the terms of any Company Benefit Plan, mortgageprovides for annual payments in excess of $300,000 by, promissory note or other $500,000 to, the Company or Company Subsidiaries; or
(H) is a local marketing agreement, joint sales agreement or commitment for similar agreement; (all contracts of the borrowing of moneytype described in this Section 3.14(a), or for being referred to herein as a line of credit“Company Material Contract”).
(iiib) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither Neither the Company nor any of its the Company Subsidiaries is a party to:
(A) in breach of or default under the terms of any Company Material Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, . To the business activity knowledge of the Company, no other party to any Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage Material Contract is in any line material respect in breach of business or to compete with default under the terms of any Person; or
(B) any Company Material Contract. Each Company Material Contract that grants to is a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets valid and binding obligation of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract which is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiaryeffect; provided, andhowever, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the (i) such enforcement thereof may be limited by (A) subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or other similar laws Laws, now or hereafter in effect effect, relating to creditors’ rights generally and (Bii) general principles equitable remedies of equity (regardless specific performance and injunctive and other forms of whether enforceability is considered in a proceeding at law or in equity). Neither equitable relief may be subject to equitable defenses and to the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge discretion of the Companycourt before which any proceeding therefor may be brought. True, no counterparty to any correct and complete copies, in all material respects, of each Company Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has (including all modifications and amendments thereto and waivers thereunder) have been made available to Parent prior to the date hereof a true and correct copy of each Material ContractParent.
Appears in 2 contracts
Sources: Merger Agreement (Citadel Broadcasting Corp), Merger Agreement (Cumulus Media Inc)
Material Contracts. (ia) Except for this Agreement, agreements filed as exhibits to the Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (SEC Documents or as defined set forth in Section 3.1(p)(ii) below) to which the Company or any 3.18 of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii)Schedules, neither the Company nor any of its Subsidiaries is a party toto or expressly bound by any Contract (excluding any Company Benefit Plan (other than with respect to clause (xiv) and (xv) below) or Lease) that:
(Ai) any Contract containing covenants that would constitute a “material contract” (as such term is defined in any way purport Item 601(b)(10) of Regulation S-K of the Securities Act) with respect to restrict or prohibitthe Company and its Subsidiaries, in any material respect, taken as a whole;
(ii) contains restrictions on the business activity right of the Company or any of its Subsidiaries to engage in activities competitive with any Person or to solicit suppliers anywhere in the world, other than restrictions that are not material to the business of the Company Subsidiaries and its Subsidiaries, taken as a whole;
(iii) provides for the formation, creation, operation, management or materially limit the freedom control of any joint venture or partnership with a third party;
(iv) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any of its Subsidiaries (other than indebtedness among the Company and/or any of its Subsidiaries) in excess of $10 million;
(v) is a settlement, conciliation or similar Contract that would require the Company or any of its Subsidiaries thereof to engage pay consideration of more than $5 million after the date of this Agreement or that contains restrictions on the business and operations of the Company and its Subsidiaries that are material to the business of the Company and its Subsidiaries, taken as a whole;
(vi) (A) provides for the acquisition or disposition by the Company or any of its Subsidiaries of any business (whether by merger, sale of stock, sale of assets or otherwise) with a value in any line excess of business $50 million or to compete with any Person; or
(B) pursuant to which the Company or any Contract that grants of its Subsidiaries acquired or will acquire any material ownership interest in any other Person or other business enterprise other than any Subsidiary of the Company, in each case, under which the Company or any of its Subsidiaries has obligations remaining to a third Person a right be performed as of first refusal, option, preferential right the date hereof;
(vii) obligates the Company or similar right any Subsidiary of the Company to acquire properties make any future capital investment or assets capital expenditure outside the ordinary course of business and in excess of $5 million;
(viii) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any Company Subsidiary of its Subsidiaries or any Contract that grants to a third party a power prohibits the pledging of attorney the capital stock of the Company or any Company Subsidiary.Subsidiary of the Company;
(ivix) has resulted in payments by the Company or any of its Subsidiaries of more than $5 million in the aggregate for the prior fiscal year (other than Contracts subject to clause (v) above);
(x) has resulted in payments to the Company or any of its Subsidiaries of more than $10 million in the aggregate for the prior fiscal year;
(xi) is a Collective Bargaining Agreement or similar agreement to which the Company or any of its Subsidiaries is a party or to which the Company or any of its Subsidiaries is bound;
(xii) is with (A) each of the ten (10) largest customers of the Company and its Subsidiaries, taken as a whole (the “Material Customers”) and (B) each of the ten (10) largest commercial vendors of the Company and its Subsidiaries, taken as a whole (the “Material Vendors”), in each case by dollar amount for the fiscal year ending December 31, 2021;
(xiii) provides for (A) indemnification of any officer, director or employee by the Company, other than Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Parent or (B) accelerated vesting in connection with a change of control (including as a result of any termination of employment following a change of control);
(xiv) is a Contract that is for the employment or engagement of any directors, officers, employees or independent contractors of the Company or any of its Subsidiaries at annual base cash compensation in excess of $400,000;
(xv) (A) is between the Company or any of its Subsidiaries, on the one hand, and any director or officer of the Company or any of its Subsidiaries or any Person beneficially owning five percent or more of the outstanding shares of the Company Common Stock, on the other hand, except for any Company Benefit Plan or (B) that would be required to be disclosed under Item 404 under Regulation S-K under the Securities Act; or
(xvi) (A) under which the Company or any of its Subsidiaries has granted or received an exclusive license to any Intellectual Property, (B) otherwise materially restricting the Company or any of its Subsidiaries’ ability to use, enforce, or disclose any Company Intellectual Property, (C) under which the Company or any of its Subsidiaries has the right to use any Intellectual Property licensed from a third Person that is material to the business of the Company and its Subsidiaries, taken as a whole, (D) under which the Company or any of its Subsidiaries has granted a right to any Company Intellectual Property, which grant is material to the business of the Company and its Subsidiaries, taken as a whole, or (E) under which the Company or any of its Subsidiaries has delivered, made available, licensed, or placed into escrow any source code owned by any of them that is material to the business of the Company and its Subsidiaries, taken as a whole, other than, with respect to each of (A) through (E), (1) non-disclosure agreements entered into in the ordinary course of business, (2) nonexclusive, “off-the-shelf” software licenses granted by third parties to the Company or any of its Subsidiaries, (3) Open Source Licenses, (4) maintenance and support and professional services Contracts with the Company or its Subsidiaries, (5) non-exclusive licenses to customers, resellers, or distributors in the ordinary course of business and (6) agreements with employees and contractors in the ordinary course of business. Each Contract of the type described in clauses (i) – (xvi) of this Section 3.18(a) is referred to herein as a “Company Material Contract.”
(b) True and correct copies of each Company Material Contract have been publicly filed prior to the date of this Agreement or otherwise made available to Parent. Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, as of the date of this Agreement, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as set forth on would not reasonably be expected to have, individually or in the aggregate, a Company Disclosure Schedule 3.1(p)(iv)Material Adverse Effect, as of the date of this Agreement, each Company Material Contract is a valid and binding agreement obligation of the Company or the Subsidiary of the Company Subsidiary, as the case may be, that is party thereto and, to the Knowledge of the Company, the counterparties of each other party thereto, and is in full force and effect and is enforceable against effect, subject to the Enforceability Exceptions.
(c) To the Knowledge of the Company, since the date of the Audited Company Balance Sheet, the Company or the applicable Company Subsidiary, andhas not received any written or, to the Knowledge of the Company, the other parties theretooral notice from or on behalf of any Material Customer indicating that such Material Customer intends to terminate or not renew, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, Material Contract with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. Customer.
(d) To the Knowledge of the Company, no counterparty since the date of the Audited Company Balance Sheet, the Company has not received any written or, to the Knowledge of the Company, oral notice from or on behalf of any Material Contract is in default or breach, in any material respect, of Vendor indicating that such Material Contract. The Vendor intends to terminate, or not renew, any Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractContract with such Material Vendor.
Appears in 2 contracts
Sources: Merger Agreement (Sailpoint Technologies Holdings, Inc.), Merger Agreement (Sailpoint Technologies Holdings, Inc.)
Material Contracts. (a) For all purposes of and under this Agreement, a “Material Contract” shall mean, without duplication, any of the following to which the Company or any of its Subsidiaries is a party or by which any assets of the Company or any of its Subsidiaries are bound as of the date of this Agreement (other than (i) Contracts between or among the Company and one or more Subsidiaries, on the one hand, and Parent and one or more Affiliates, on the other hand and (ii) any Company Benefit Plan):
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act;
(ii) any Contract (or group of related Contracts with the same Person or its Affiliates), other than any Lessor Lease, Lessee Lease and any other lease, license or development, redevelopment, declaration, reciprocal easement, construction Contract or similar agreement disclosed in the Company Title Insurance Policies or otherwise entered into in the ordinary course of business or any Contract relating to Indebtedness, involving (A) the payment or receipt of amounts by the Company or any of its Subsidiaries of more than $5,000,000 in the aggregate within the last twelve (12) months or (B) future payments of more than $5,000,000 that are conditioned on, in whole or in part, or required in connection with, the consummation of any of the Transactions;
(iii) any Contract relating to Indebtedness in excess of $5,000,000 or mortgaging, pledging or otherwise placing a Lien on any of the assets of the Company or its Subsidiaries with a value in excess of $5,000,000, restricting the payment of dividends or other distributions of assets by any of the Company or its Subsidiaries or providing for the guaranty of Indebtedness of any Person in excess of $5,000,000;
(iv) any Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests or assets of any Person;
(v) other than with respect to any wholly -owned Subsidiary of the Company, any partnership, limited liability company, joint venture, strategic alliance or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company, joint venture or strategic alliance that is material to the Company or any of its Subsidiaries;
(vi) except for indemnification, compensation, employment or other similar arrangements between the Company or any of its Subsidiaries, on the one hand, and any current or former director or officer thereof, on the other hand, any Contract to which the Company or any of its Subsidiaries is a party that would be required to be disclosed pursuant to Item 404 of Regulation S-K under the Securities Act in the Company’s Form 10-K or proxy statement pertaining to an annual meeting of stockholders;
(vii) any Contract containing a standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has ongoing obligations to not acquire assets or securities of any other party and, to the extent not entered into in the ordinary course of business or in connection with any Lessor Lease, Lessee Lease or other lease, license, services, development, redevelopment, construction Contract or other commercial Contract, any Contract under which the Company or any of its Subsidiaries has material ongoing indemnification obligations;
(viii) any Contract under which a sale of a majority of the consolidated assets of the Company and its Subsidiaries, taken as a whole, would require a payment by, result in a breach or constitute a default by, or result in the termination, acceleration or loss of any benefit of, the Company or any of its Subsidiaries;
(ix) any non-competition Contract or other Contract that (A) limits or purports to limit in any material respect the type of business in which the Company or its Subsidiaries (or, after the Merger Effective Time, Parent or its Affiliates) may engage, or the manner or locations in which any of them may so engage in any business or (B) prohibits or materially limits the right of the Company or any of its Subsidiaries to use, transfer, license, distribute or enforce any of their respective Company Intellectual Property, other than limitations on enforcement arising from non-exclusive licenses of Company Intellectual Property entered into in the ordinary course of business;
(x) any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial instrument, contract or arrangement, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, other than (i) Contracts related to the purchase of raw materials or inventory in the ordinary course of business, (ii) Contracts relating to the hedging of utility expenses or (iii) interest rate caps, swaps and treasury locks entered into in the ordinary course of business;
(xi) any Contract pursuant to which the Company or any of its Subsidiaries is a party under which any third Person has granted to the Company or any of its Subsidiaries, or the Company or any of its Subsidiaries has granted to any third Person, any license, covenant or other rights to or under Intellectual Property (other than software license agreements for any third-party off-the-shelf generally commercially available software for no fee or an aggregate license fee of less than $5,000,000 per year);
(xii) any Contract that provides for the acquisition or disposition, directly or indirectly (including by merger, purchase of equity, business combination or otherwise) of any real or personal property for aggregate consideration under such Contract in excess of $5,000,000 that is pending or pursuant to which the Company or its Subsidiaries have continuing “earn-out” or similar contingent obligations relating to purchase price adjustments;
(xiii) any Contract relating to settlement of any administrative or judicial proceedings, in each case, individually in excess of $5,000,000 or which otherwise provides for equitable relief that imposes a material obligation or restrictions on the Company, under which there are outstanding obligations (including settlement agreements) of the Company or any of its Subsidiaries;
(xiv) any Lessor Lease that provided for payments to the Company or any of its Subsidiaries in excess of $1,400,000 in 2017; and
(xv) any Collective Bargaining Agreement.
(b) Section 3.12(b) of the Company Disclosure Schedule 3.1(p)(i) contains Letter sets forth a complete and accurate list of all Material Contracts (as defined in with appropriate sub-section references to Section 3.1(p)(ii) below3.12(a)) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity as of the Company or any date of this Agreement. True and complete copies of all such Material Contracts (including all exhibits and schedules thereto) have been (i) publicly filed with the SEC and are publicly available as of the Company Subsidiaries date hereof or materially limit the freedom of the Company or any of the Company Subsidiaries thereof (ii) made available to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company SubsidiaryParent.
(ivc) Except as set forth on would not have or result in a Company Disclosure Schedule 3.1(p)(iv)Material Adverse Effect, (i) each Material Contract is a valid and binding agreement on the Company (and/or each such Subsidiary of the Company or the Company Subsidiary, as the case may be, party thereto thereto) and, to the Knowledge of the Company, the counterparties each other party thereto, and (ii) each Material Contract is in full force and effect and is (except for expiration thereof in the ordinary course in accordance with the terms thereof), enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge each such Subsidiary of the Company, the other parties Company party thereto, as the case may be, in accordance with its terms, except subject to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally Enforceability Limitations and (Biii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither neither the Company nor any Company Subsidiary of its Subsidiaries that is a party thereto, nor, to the Knowledge of the Company, any other party thereto, is in default or breach in any material respectof, or default under, any such Material Contract, and, to the Knowledge of the Company, no event has received written notice of any material default or breach (or any event that, occurred that with notice or lapse of time or both, both would constitute such a material breach or default thereunder by the Company or breach)any of its Subsidiaries, under the terms of any such Material Contract. To or, to the Knowledge of the Company, no counterparty to any other party thereto, or permit termination, material modification or acceleration by any third party thereunder. As of the date hereof, neither the Company nor any of its Subsidiaries has received any written notice of termination or cancellation under any Material Contract is or received any written notice of breach of or any default under any Material Contract which breach has not been cured except for any termination, breach or default that would not have or result in default or breach, in any material respect, of such a Company Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Brookfield Property Partners L.P.), Merger Agreement (GGP Inc.)
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Except for this Agreement, Section 3.1(p)(ii) below) to which the Company or any 4.20 of the Company Subsidiaries is Disclosure Letter contains a party or by which the Company or any complete and correct list, as of the Company Subsidiaries is otherwise bound. A truedate of this Agreement, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(iidescribed below in this Section 4.20(a) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed has any current or guaranteed any outstanding Debt of a third party future rights, responsibilities, obligations or liabilities (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futuresin each case, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets whether contingent or otherwise) by or to which any of their respective properties or assets is subject, in each case as of the date of this Agreement other than Company Benefit Plans (all Contracts of the type described in this Section 4.20(a) being referred to herein as the “Material Contract”):
(i) any Contract that (A) limits, curtails or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations restricts the ability of the Company or any Company Subsidiary and which could reasonably require the payment to (x) compete or conduct activities in any geographic area or line of monies by business with any Person or (y) use or enforce any Intellectual Property, or (B) includes any “most favored nation”, exclusive marketing, right of first refusal, first offer or first negotiation or other exclusive rights of any type or scope or that otherwise restrict the Company or any Company Subsidiary (or, upon completion of the Offer and the Merger, would restrict Parent or any of its Subsidiaries from engaging or competing in any line of business or in any geographic area), in the case of clauses (A) and (B) that would reasonably be expected to be material to the applicable sellers thereunderoperations of the Company and Company Subsidiaries, taken as a whole;
(Gii) each joint ventureacquisition or divestiture Contract or licensing agreement that contains representations, partnership covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $7,500,000;
(iii) any other Contract involving a sharing of profits or losses by (excluding licenses for commercial off the shelf computer software that are generally available on nondiscriminatory pricing terms) under which the Company or any Company Subsidiary is granted any license, option or other right (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property of the Company Subsidiaries a third party, or under which any third party is granted any license, option or other right (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate Intellectual Property of the Company or any Company Subsidiary, in each case, which Contract is material to the Company and the Company Subsidiaries, taken as a whole;
(iv) any Contract providing for indemnification, contribution or any guaranty in an amount that is material to the Company and the Company Subsidiaries, taken as a whole;
(v) any Contract under which the Company or any Company Subsidiary grants or agrees to grant a license under all or substantially all of the patents of the Company and the Company Subsidiaries; and;
(Ivi) the Loan Agreements and each other indenture, mortgage, promissory note any material Contract with a Major Customer or other agreement or commitment for the borrowing of money, or for a line of credit.Major Supplier;
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(Avii) any Contract containing covenants with any Governmental Entity that in any way purport is material to restrict or prohibit, in any material respect, the conduct of the business activity of the Company or any of the Company Subsidiaries taken as a whole;
(viii) each Contract not otherwise described in any other subsection of this Section 4.20(a) pursuant to which the Company or materially limit any Company Subsidiary is obligated to pay, or entitled to receive, payments in excess of $10,000,000 in the freedom twenty-four (24)-month period following the date hereof, which cannot be terminated by the Company or such Company Subsidiary on less than sixty (60) days’ notice without material payment or penalty;
(ix) each Contract relating to outstanding Indebtedness of the Company or any of the Company Subsidiaries for borrowed money, any indenture or any financial guaranty thereof to engage in (whether incurred, assumed, guaranteed or secured by any line of business or to compete with asset) other than (A) Contracts solely among the Company and any Person; or
wholly owned Company Subsidiary and (B) any Contracts relating to Indebtedness explicitly filed with the SEC in the Company SEC Documents on its Electronic Data Gathering Analysis and Retrieval System;
(x) each material Contract that grants provides for or relates to interest rate derivatives, currency derivatives or other derivatives;
(xi) each Contract between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate (other than a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets wholly owned Company Subsidiary) of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract that grants pursuant to a third party a power of attorney of which the Company or any Company SubsidiarySubsidiary has an obligation to indemnify such officer, director, affiliate or family member, but not including any Company Benefit Plans;
(xii) any material joint venture, strategic alliance, joint development or partnership agreement;
(xiii) any collective bargaining agreement or other Contract with any labor union, labor organization or work council;
(xiv) (A) all employment Contracts of those employees and managers that received from the Company or any Company Subsidiary annual compensation (including base salary, commissions, and annual or other periodic or project bonuses) in excess of $150,000 paid through the date of this Agreement for fiscal year 2015, and (B) all consulting Contracts for those consultants that received from the Company or any Company Subsidiary annual compensation in excess of $150,000 paid through the date of this Agreement for fiscal year 2015 (provided that references to such Contracts have been made completely anonymous for those employees, managers or consultants based in jurisdictions where this is required under applicable data privacy/protection Laws); and
(xv) any Contract not otherwise described in any other subsection of this Section 4.20(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company.
(ivb) Neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Material Contract where such breach or default would have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the knowledge of the Company, as of the date hereof, no other party to any Material Contract is in breach of or default (and no event has occurred or condition or circumstance exists that would, with or without notice or lapse of time, would reasonably be expected to result in a breach of default) under the terms of any Material Contract where such breach or default would have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as set forth on would not have or reasonably be expected to have, individually or in the aggregate, a Company Disclosure Schedule 3.1(p)(iv)Material Adverse Effect, each Material Contract is a valid and binding agreement obligation of the Company or the Company Subsidiary, as the case may be, Subsidiary which is party thereto and, to the Knowledge knowledge of the Company, the counterparties of each other party thereto, enforceable against each such Person in accordance with its terms, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiaryeffect, and, subject to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractEnforceability Limitations.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Fairchild Semiconductor International Inc), Agreement and Plan of Merger (On Semiconductor Corp)
Material Contracts. (ia) Company Section 4.07 of the Disclosure Schedule 3.1(p)(i) contains a list Schedules lists each of all Material the following Contracts (x) by which any of the Purchased Assets are bound or affected as defined in Section 3.1(p)(ii) belowof the date hereof or (y) to which the Company Parent or any of the Company Subsidiaries EyeLock Sub is a party or by which the Company or any it is bound as of the Company Subsidiaries date hereof in connection with the Business or the Purchased Assets (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Leased Real Property (including without limitation, brokerage Contracts) listed or otherwise disclosed in Section 4.10(b) of the Disclosure Schedules and all Intellectual Property Agreements set forth in Section 4.11(b) of the Disclosure Schedules, collectively, “Material Contracts”):
(i) all Contracts under which the Seller is otherwise bound. A true, correct and complete copy required to pay or is entitled to receive aggregate consideration in excess of each Material Contract has been furnished or made available to Parent or its representatives.Fifty Thousand Dollars & 00/100 ($50,000.00);
(ii) Material all Contracts that provide for the indemnification of any Person or the Company and assumption of any Tax, environmental or other Liability of any Person, except for standard indemnification provisions in Contracts entered into in the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary ordinary course, none of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company Seller has any Knowledge with respect to particular facts or circumstances that may reasonably give rise to a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefromclaim for indemnification;
(Biii) to the Knowledge of the Seller, all Contracts entered into during the three (3) year period ending on the date hereof that relate to the acquisition or disposition of any Contracts for the construction business, a material amount of gathering stock or assets of any other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company Person or any Company Subsidiary of any penalty;
real property (C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month periodwhether by merger, other than Contracts relating to the sale of obsolete stock, sale of assets or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereofotherwise);
(Eiv) any outstanding futuresall broker, swapdistributor, collardealer, putmanufacturer’s representative, callfranchise, flooragency, capsales promotion, optionmarket research, hedgingresearch, forward sale or other derivative Contracts involving hydrocarbons or other commoditiesdevelopment, marketing consulting and advertising Contracts;
(Fv) any all employment agreements and Contracts with independent contractors, subcontractors or consultants (or similar arrangements) and which are not cancellable without material penalty or without more than thirty (30) calendar days’ notice;
(vi) except for Contracts relating to trade receivables, all Contracts relating to indebtedness for borrowed money (including, without limitation, guarantees and the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder▇▇▇▇▇ Debt Obligation);
(Gvii) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries all Contracts with any other PersonGovernmental Authority (“Government Contracts”);
(Hviii) each Contract with any director, officer, member, employee all Contracts that limit or Affiliate purport to limit the ability of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport Seller to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage compete in any line of business or to compete with any Person; orPerson or in any geographic area or during any period of time;
(Bix) all joint venture, partnership or similar Contracts;
(x) all Contracts for the sale of any Contract that grants of the Purchased Assets or for the grant to a third any Person a of any option, right of first refusal, option, refusal or preferential right or similar right to acquire properties or assets purchase any of the Company Purchased Assets;
(xi) all powers of attorney with respect to the Business or any Company Subsidiary Purchased; Asset; and
(xii) all collective bargaining agreements or Contracts with any Contract that grants to a third party a power of attorney of the Company or any Company SubsidiaryUnion.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Each Material Contract is a valid and binding agreement of on the Company or the Company Subsidiary, as the case may be, party thereto Seller in accordance with its terms and, to the Knowledge of the CompanySeller’s Knowledge, the counterparties thereto, and is in full force and effect and is enforceable against effect. Except as set forth in Section 4.07 of the Company or Disclosure Schedules, none of the applicable Company Subsidiary, andSeller or, to the Knowledge of the CompanySeller’s Knowledge, the any other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary party thereto is in breach of or default under (or is alleged to be in breach in any material respectof or default under), or has provided or received written any notice of any material default intention to terminate, any Material Contract. Except as set forth in Section 4.07 of the Disclosure Schedules, no event or breach (or any event circumstance has occurred that, with notice or lapse of time or both, would constitute a material an event of default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract that is included in default the Purchased Assets (including all modifications, amendments and supplements thereto and waivers thereunder) or breach, in any material respect, of such Material Contract. The Company has evidences the ▇▇▇▇▇ Debt Obligation will have been made available to Parent prior the Buyer by the Delivery Date. There are no material disputes pending or threatened with respect to any Contract included in the date hereof a true and correct copy of each Material ContractPurchased Assets.
Appears in 2 contracts
Sources: Asset Purchase Agreement (VOXX International Corp), Asset Purchase Agreement (VOXX International Corp)
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iiia) Except as set forth disclosed in the Company Regulatory Reports or described on Schedule 3.15 to the Company Disclosure Schedule 3.1(p)(iii)Schedule, neither the Company nor any of its Subsidiaries Company Subsidiary is a party toto any agreement or understanding described below:
(Ai) any Contract containing covenants agreement, arrangement or commitment not made in the ordinary course of business consistent with past practices that in any way purport is material to restrict or prohibit, in any material respect, the business activity of the Company on a consolidated basis, or any of contract, agreement or understanding relating to the Company Subsidiaries sale or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of disposition by the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney significant assets or businesses of the Company or any Company Subsidiary.;
(ii) any material agreement, indenture, credit agreement or other instrument relating to the borrowing of money by the Company or any Company Subsidiary (other than certificates of deposit and customary deposit instruments) or the guarantee by the Company or any such Company Subsidiary of any such obligation;
(iii) any contract containing covenants which limit the ability of the Company or any Company Subsidiary to compete in any line of business or with any person or which involve any restriction in the geographical area in which, or method by which, the Company and the Company Subsidiaries may carry on their respective businesses (other than as may be required by law or applicable regulatory authority);
(iv) Except any other contract or agreement that would be required to be disclosed as set forth an exhibit to the Company's Annual Report on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid Form 10-K and binding which has not been so disclosed;
(v) any agreement of or understanding which obligates the Company or the any Company SubsidiarySubsidiary for a period in excess of one year, as the case may be, party thereto andwhich has a value in excess of $500,000, to the Knowledge purchase, sell or provide services, materials, supplies, merchandise, facilities or equipment and which is not terminable without penalty on not more than thirty (30) days notice;
(vi) any agreement or understanding of any kind, except for deposit relationships or loans made prior to January 1, 1996, with any current director or executive officer of the Company, the counterparties thereto, and is in full force and effect and is enforceable against Bank or any Non-Bank Subsidiary or with any Affiliate thereof or any member of the Company Immediate Family of any such director or the applicable Company Subsidiary, and, to the Knowledge of executive officer; or
(vii) any material agreement or understanding which would be terminable by any other party other than the Company, the other parties thereto, Bank or any Non-Bank Subsidiary as a result of the case may be, consummation of the transactions contemplated by this Agreement.
(b) True and correct copies of all documents identified in accordance with its terms, except Schedule 3.15 to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating Company Disclosure Schedule have been delivered to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent Purchaser prior to the date hereof a true and correct copy of each Material Contracthereof.
Appears in 2 contracts
Sources: Merger Agreement (Abn Amro Bank Nv), Merger Agreement (Standard Federal Bancorporation Inc)
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains FX has made available to XC a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct true and complete copy (or written summary of all material terms) of each Material Contract has been furnished or made available to Parent or its representativesin force on the date hereof and listed each such Material Contract on Section 2.19(a) of the FX Disclosure Letter.
(iib) Material Contracts For purposes of the Company and the Company Subsidiaries (this Agreement “Material Contracts”) shall include:
(A) Contract” means any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant Contract to which the Company FX or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party toto or by which FX, any of its Subsidiaries or any of their respective properties or assets is bound that:
(Ai) would be required to be filed by FX as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act if FX was subject thereto,
(ii) contains any Contract containing covenants that in any way purport to restrict non-compete or prohibitexclusivity provision or otherwise limits the freedom of FX, in any material respect, the business activity of the Company XC or any of their respective Subsidiaries after the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof Closing Date to engage compete in any line of business or sell, supply, acquire, obtain or distribute any product or service, in each case, in any geographic area in a respect or to compete a degree that is material, other than any Contract that can be terminated (including such restrictive provisions) by FX or any of its Subsidiaries on ninety (90) (or fewer) days’ notice without payment by FX or any of its Subsidiaries of any material penalty, premium or other amount payable thereunder as a result of such termination and not in respect of amounts accrued but unpaid prior to such termination,
(iii) contains any “most favored nation” pricing provisions binding FX, XC or any of their respective Subsidiaries after the Closing Date, in a Contract with any Person; orThird Party, in a respect or to a degree that is material, other than any Contract that can be terminated (including such provision) by FX or any of its Subsidiaries on ninety (90) (or fewer) days’ notice without payment by FX or any of its Subsidiaries of any material penalty, premium or other amount payable thereunder as a result of such termination and not in respect of amounts accrued but unpaid prior to such termination,
(iv) is or relates to the Organizational Documents of any partnership, joint venture or similar arrangement to the extent such partnership, joint venture or similar arrangement is material to FX and its Subsidiaries, taken as a whole,
(v) (A) requires or provides for capital expenditures (or series of capital expenditures) by FX or any of its Subsidiaries in an amount in excess of $25 million individually or (B) requires or specifically provides for any annual payments or receipts by FX or any of its Subsidiaries in an amount in excess of $25 million, in each case other than (x) any Contract entered into in the ordinary course of business or (y) any Contract that can be terminated by FX or any of its Subsidiaries on ninety (90) (or fewer) days’ notice without payment by FX or any of its Subsidiaries of any material penalty or premium,
(vi) contains an option or grants to a third Person a any right of first refusalrefusal or right of first offer, option, preferential right of first negotiation or similar right in favor of a party other than FX or any of its Subsidiaries or that limits or purports to acquire limit the ability of FX or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses in a respect or to a degree that is material to FX and its Subsidiaries, taken as a whole,
(vii) involves the acquisition or disposition from or to another Person, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration in excess of $100 million (other than acquisitions of inventory in the ordinary course of business) entered into on or after January 1, 2017 or that contains material “earn-out”, indemnification or other contingent or deferred payment obligations that would reasonably be expected to involve payments by or to FX or any of its Subsidiaries after the date of this Agreement in excess of $100 million (in each case, other than acquisitions or dispositions of supplies, inventory, merchandise, products, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of FX or its Subsidiaries),
(viii) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than those among FX and its Subsidiaries) made or entered into outside the Company ordinary course of business relating to indebtedness in excess of $5 million,
(ix) is with a top five (5) customer of FX and its Subsidiaries, taken as a whole, with respect to aggregate revenue from such customer during the fiscal year ended March 31, 2017, pursuant to which FX or its Subsidiaries supply products and/or services to such customer, excluding purchase orders,
(x) is with a top five (5) supplier of FX and its Subsidiaries, taken as a whole, with respect to aggregate expenditures by FX and its Subsidiaries during the fiscal year ended March 31, 2017, pursuant to which FX or its Subsidiaries procure products and/or services from such supplier, excluding purchase orders,
(xi) is a settlement, conciliation or similar agreement other than any such agreement that (x) would require FX or any Company Subsidiary of its Subsidiaries to pay consideration of less than $10 million after the date of this Agreement and (y) is limited only to the payment of money and customary confidentiality agreements,
(xii) expressly limits the ability of FX or any Contract that grants to a third party a power of attorney its Subsidiaries from (A) making distributions or declaring or paying dividends in respect of the Company their capital stock, partnership interests, membership interests or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiaryother equity interest, as the case may be, party thereto and(B) making loans to FX or any of its Subsidiaries or (C) granting Liens on the property of FX or any of its Subsidiaries,
(xiii) constitutes a lease, sublease, license agreement, occupancy agreement or other Contract pursuant to which FX or any of its Subsidiaries leases, subleases or licenses from another Person, or is otherwise granted a right to occupy, any material real property,
(xiv) constitutes or includes a license or non-assertion covenant granted by FX or any of its Subsidiaries to a Third Party with respect to FX Intellectual Property, which license or covenant is material to FX and its Subsidiaries, taken as a whole, excluding “shrink-wrap,” “click-wrap” or similar form end user agreements or licenses or covenants granted to customers in the Knowledge ordinary course of business,
(xv) constitutes or includes a license or non-assertion covenant granted by a Third Party to FX or any of its Subsidiaries with respect to any Intellectual Property Rights, which license or covenant is material to FX and its Subsidiaries, taken as a whole, excluding commercial off-the-shelf or other non-exclusive software or technology license agreements,
(xvi) is (x) a written employment agreement or (y) a consulting, independent contractor or non-employee service provider agreement with an individual, in each case that provides for the payment by FX or any of its Subsidiaries of more than $350,000 in any 12-month period, or
(xvii) constitutes a material Related Party Contract.
(c) Except for breaches, violations or defaults which have not had and would not reasonably be expected to be, individually or in the aggregate, material to FX and its Subsidiaries, taken as a whole:
(i) each of the Company, the counterparties thereto, Material Contracts is valid and is binding and in full force and effect and is an enforceable against the Company obligation of FX or the applicable Company Subsidiary, any of its Subsidiaries and, to the Knowledge knowledge of FX, of the Company, the other party or parties thereto, as the case may be, in accordance with its terms,
(ii) FX and each of its Subsidiaries, except and, to the extent that the enforcement thereof may knowledge of FX, each other party thereto, has performed all obligations required to be limited performed by it under each Material Contract, and
(Aiii) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company neither FX nor any Company Subsidiary is in default or breach in of its Subsidiaries, nor to the knowledge of FX, any material respectother party to a Material Contract, has violated any provision of, or has received written notice of taken or failed to take any material default or breach (or any event thatact which, with notice or without notice, lapse of time time, or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, provisions of such Material Contract. The Company , and neither FX nor any of its Subsidiaries has made available to Parent prior to the date hereof a true and correct copy of each received written notice that it has breached, violated or defaulted under any Material Contract.
(d) Other than as set forth in Section 2.19(d) of the FX Disclosure Letter, neither FX nor any of its Affiliates is party to a Contract that:
(i) contains any non-compete or exclusivity provision or otherwise limits the freedom of FX or any of its Affiliates to compete in any line of business or sell, supply, acquire, obtain or distribute any product or service, in each case, that would bind or purport to bind XC or any of its Affiliates from and after the RA Closing or the SA Closing;
(ii) contains any “most favored nation” pricing provisions that would bind or purport to bind XC or any of its Affiliates from and after the RA Closing or the SA Closing; or
(iii) would otherwise bind, obligate or restrict, or purport to bind, obligate or restrict, XC or any of its Affiliates, or any of their respective assets, in any fashion by virtue of XC and its Affiliates becoming Affiliates of FH or any of its Affiliates upon the SA Closing.
Appears in 2 contracts
Sources: Redemption Agreement, Redemption Agreement (Xerox Corp)
Material Contracts. Section 3.12.1 Except for contracts set forth on the “Exhibit Index” included in the Company’s Form 10-K for the year ended December 31, 2011 or the Company SEC Filings subsequently filed, as of the date of this Agreement, neither the Company nor any Company Subsidiary, nor any of their respective assets, properties, businesses or operations is a party to, or bound or affected by, or receives benefits under:
(ia) Company Disclosure Schedule 3.1(p)(i) contains any Contract which is a list of all Material Contracts “material contract” (as such term is defined in Section 3.1(p)(iiItem 601(b)(10) belowof Regulation S-K of the SEC);
(b) any Contract relating to which the borrowing of money by the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment guarantee by the Company or any Company Subsidiary of any penaltysuch obligation (other than Contracts evidencing deposit liabilities, purchases of federal funds, fully-secured repurchase agreements, and FHLB advances of depository institution Subsidiaries, trade payables and Contracts relating to borrowings or guarantees made in the ordinary course of business) in excess of $1,000,000;
(Cc) any Contracts (not described in clause (A) Contract which prohibits or (B) above) which would be reasonably expected to involve payments to or from restricts the Company or a any Company Subsidiary of $1,000,000 or more from (i) engaging in any twelve business activities in any geographic area, line of business or otherwise in competition with any other person, (12ii) month periodsoliciting or accepting business from any person or (iii) soliciting any person for employment or hire (excluding Contracts entered into in the ordinary course with respect to temporary employment, other than consulting arrangements and similar arrangements and it being understood that the Company will be permitted to update Section 3.12.1(c) of the Company Disclosure Schedule within twenty (20) Business Days following the date hereof so as to provide a true and correct list of all of the Contracts containing restrictions on the soliciting of any person for employment or hire, and such updates shall be deemed to have modified Schedule 3.12.1(c) as of the date of this Agreement);
(d) any Contract between or among the Company or any Company Subsidiary;
(e) any Contract relating to the purchase or sale of obsolete any goods or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable services by the Company or a Company Subsidiary on sixty (60other than Contracts entered into in the ordinary course of business and either (i) days’ notice involving payments under any individual Contract not in excess of $300,000 per year or less without payment $1,000,000 over the expected life of the Contract, or (ii) involving Loans, borrowings or guarantees originated or purchased by the Company or any Company Subsidiary in the ordinary course of any penaltybusiness);
(Df) any Contract which obligates the Company or any Company Subsidiary (or, following the consummation of the Merger, Parent or any Parent Subsidiaries) to conduct business with any third party on an exclusive or preferential basis (other than Contracts under entered into in the ordinary course of business that (i) can be terminated by the Company or relevant Company Subsidiary immediately without penalty or other obligation to make payment, or (ii) with respect to which the maximum reasonably expected termination, break or similar fee payable by the Company or relevant Company Subsidiary (or the Parent or Parent Subsidiary, after giving effect to the Merger), individually or in the aggregate, is less than $100,000);
(g) any Contract which grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any Company Subsidiary;
(h) any Contract which limits the payment of dividends by the Company or any Company Subsidiary;
(i) any Contract pursuant to which the Company or any Company Subsidiary assumed has agreed with any third parties to become a member of, manage or guaranteed any outstanding Debt of control a third party (including any Company Member Interest Holder joint venture, partnership, limited liability company or Affiliate thereof)other similar entity;
(Ej) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating Contract pursuant to the acquisition (by merger, purchase of stock or assets or otherwise) by which the Company or any Company Subsidiary has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect other than customary obligations to indemnify directors and officers;
(k) except for standard end-user license agreements to off the shelf software having a value under $10,000, for any Contract wherein the Company or any Company Subsidiary is the recipient of a license, sublicense (of any operating business tier), covenant not to ▇▇▇ or equity interests assert, or immunity from suit under any Intellectual Property rights of any other Person which contain continuing person;
(l) except for non-exclusive licenses to the Company’s trademarks granted by the Company or a Company Subsidiary to a vendor for the provision of products or services to the Company or a Company Subsidiary in the ordinary course of business, any Contract wherein the Company or any Company Subsidiary expressly grants a license, sublicense (of any tier), covenant not to ▇▇▇ or assert, immunity from suit or similar rights under any material Company IP;
(m) except for standard employment Contracts, any Contract wherein a person assigns to the Company or a person is obligated to assign to the Company, any title, in whole or in part, solely or jointly, beneficially or actually, with respect to any Intellectual Property, or any person has an option or other right concerning any of the foregoing;
(n) any Contract that provides for a termination, break, or similar fee in excess of $100,000; or
(o) except transactions made in accordance with Regulation O and agreements entered into in the ordinary course of business for compensation or indemnity, any Contract between the Company or any Company Subsidiary, on the one hand, and (1) any officer or director of the Company, or (2) to the knowledge of the Company, any (x) record or beneficial owner of five percent (5%) or more of the voting securities of the Company, (y) affiliate or family member of any such officer, director or record or beneficial owner or (z) any other affiliate of the, on the other hand, except those of a type available to employees of the Company generally. Each contract of the type described in this Section 3.12.1 is referred to herein as a “Company Material Contract.”
Section 3.12.2 Each Company Material Contract is in full force and effect and legally valid, binding and enforceable in accordance with its terms in all material respects on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, except as enforceability may be limited by bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors and by general principles of equity regardless of whether considered in a proceeding in equity or at Law. Except as has not had, individually or in the aggregate, a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all obligations required to be performed by it under each Company Material Contract and Company Lease. To the Company’s knowledge, and except as has not had, individually or in the aggregate, a Company Material Adverse Effect, each other party to each Company Material Contract and Company Lease has performed all obligations required to be performed by it under such Company Material Contract and Company Lease. None of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material violation or default or breach under (or any event that, condition which with notice or lapse the passage of time or both, the giving of notice would constitute cause such a material violation of or default or breach), under the terms of under) any such Material Contract. To the Knowledge of the Company, no counterparty to any Company Material Contract is or Company Lease, except for violations or defaults that have not had, individually or in default or breachthe aggregate, in any material respect, of such a Company Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Citizens Republic Bancorp, Inc.), Merger Agreement (Firstmerit Corp /Oh/)
Material Contracts. (ia) Schedule 4.18(a) of the Company Disclosure Schedule 3.1(p)(i) contains Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forth a true and complete list (but excluding any Company Plan), as of all Material Contracts (as defined in Section 3.1(p)(ii) below) the entry into this Agreement, of the following contracts to which the Company or any of the Company its Subsidiaries is a party party:
(i) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act);
(ii) each agreement or by which Organizational Document of the Company or any of its Subsidiaries that would, on or after the Closing Date, prohibit or restrict the ability of the Company or Parent or any of their respective Subsidiaries is otherwise bound. A true(including the Surviving Corporation and its Subsidiaries) to declare and pay dividends or distributions with respect to their capital stock, correct and complete copy of each Material Contract has been furnished pay any Indebtedness for borrowed money, obligations or made available Liabilities from time to time owed to Parent or any of its representatives.Subsidiaries (including the Surviving Corporation and its Subsidiaries), make loans or advances to Parent or any of its Subsidiaries (including the Surviving Corporation and its Subsidiaries);
(iiiii) Material Contracts each contract that contains covenants that limit the ability of the Company or any of its Affiliates to compete in any business or with any person or in any geographic area or distribution or sales channel, or to sell, supply or distribute any service or product, in each case, that could reasonably be expected to be material to the business of the Company and the Company Subsidiaries its Subsidiaries, taken as a whole;
(“Material Contracts”iv) shall include:
each contract that (A) provides for material exclusive rights for the benefit of any Contracts with third parties which would be reasonably expected party, (B) grants “most favored nation” status to involve payments to any third party or from (C) requires the Company or any of its Affiliates to provide any minimum level of service, in each case which (1) are, or in a Company Subsidiary of $1,000,000 or more in any twelve (12) month periodmanner which is, pursuant material to which the Company or and its Subsidiaries taken as a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
whole and (B2) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any may not be terminated (including such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable restrictive provisions) by the Company or applicable Company Subsidiary its Subsidiaries on sixty (60) less than 90 days’ notice or less without payment by the Company or any Company Subsidiary of its Subsidiaries of any material penalty;
(Cv) each contract with a remaining term of more than one year from the date hereof that could require the Surviving Corporation or any Contracts of its Affiliates to purchase all (not described in clause or a specified portion of) its total requirements of any product or service from a third party or that contains “take or pay” provisions and which (A) is expected to involve the payment of an amount in excess of $25 million in the aggregate during the fiscal year ending December 31, 2024 or any future fiscal year and (B) abovemay not be terminated (including such restrictive provisions) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary its Subsidiaries on sixty (60) less than 90 days’ notice or less without payment by the Company or any Company Subsidiary of its Subsidiaries of any material penalty;
(Dvi) each agreement evidencing any Indebtedness for borrowed money having an outstanding principal amount or outstanding commitments in excess of $25 million;
(vii) any Contracts coal supply agreement or purchase order or commitment to sell or offer to sell coal, (A) with a remaining term of more than three years from the later of the commencement of the term of the agreement and the date hereof (or, if the contract is entered into after the date of this Agreement, three years from the later of the commencement of the term of the agreement and the date the contract is entered into), (B) under which the aggregate amounts to be paid by the Company and its Subsidiaries over the remaining term of such agreement, order or any commitment would reasonably be expected to exceed $100 million or (C) under which the aggregate amounts to be received by the Company Subsidiary assumed and its Subsidiaries over the remaining term of such agreement, order or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof)commitment would reasonably be expected to exceed $100 million;
(Eviii) that is a contractual royalty, production payment, net profits, earn-out or similar contract on a material property of such Party that has a value or expected value in excess of $5 million from the date hereof, excluding, however, any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commoditiesof the foregoing payable pursuant to any instrument with respect to Company Real Property;
(Fix) any Contracts each contract relating to the disposition or acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of its Subsidiaries of any operating material business or equity interests any material amount of any assets (other Person which contain than in the Ordinary Course) with obligations remaining to be performed or Liabilities continuing obligations of after the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunderentry into this Agreement;
(Gx) each contract involving any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract including commodities, in each case, with a notional amount exceeding $100 million and a term of at least three years from the entry into the instrument or contract, in each case, other than contracts for the purchase and sale of coal, diesel fuel and ANFO (ammonium nitrate and fuel oil) and contracts entered into as a hedging activity in the Ordinary Course consistent with the Company’s past practice and internal policy guidelines;
(xi) any joint venture, partnership or any other Contract similar organizational contract involving a sharing of profits or losses by the Company or any of its Subsidiaries (or any contract, agreement or understanding involving any joint venture partner or any of its affiliates that relates to the applicable joint venture or the assets thereof) other than any contract entered into in the Ordinary Course which would not reasonably be expected to be material to the Company Subsidiaries with any other Person;and its Subsidiaries, taken as a whole; and
(Hxii) each Contract with any directorcontract to which the Company or any of its Subsidiaries is party granting to any Person an option, officer, member, employee right of first offer or Affiliate right of first refusal to purchase or acquire any assets of the Company or any of its Subsidiaries (other than any purchase option for additional coal volumes or any contract entered into in the Ordinary Course which would not reasonably be expected to be material to the Company and its Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for taken as a line of creditwhole).
(iiib) Collectively, the contracts set forth in Section 4.18(a), whether or not set forth in the Company Disclosure Letter, are referred to in this Agreement as the “Company Contracts.” A complete and correct copy of each of the Company Contracts has been made available to Parent (provided that order forms, purchase orders and statements of work, in each case, that do not contain any restrictive covenants or other material terms need not be made available pursuant to this sentence, but shall nonetheless constitute Company Contracts). Except as set forth has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company Disclosure Schedule 3.1(p)(iii)and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict breach or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or default under any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto andnor, to the Knowledge knowledge of the Company, the counterparties theretois any other party to any such Company Contract in breach or default thereunder, and is in full force and effect and is enforceable against no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or the applicable Company Subsidiaryits Subsidiaries, andor, to the Knowledge knowledge of the Company, any other party thereto. As of the other parties theretoentry into this Agreement, as the case may bethere are no disputes pending or, in accordance with its terms, except to the extent that knowledge of the enforcement thereof may be limited by (A) applicable bankruptcyCompany, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating Threatened with respect to creditors’ rights generally any Company Contract and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither neither the Company nor any Company Subsidiary is in default or breach in any material respect, or of its Subsidiaries has received written any notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms intention of any such Material other party to any Company Contract to terminate for default, convenience or otherwise any Company Contract. To , nor to the Knowledge knowledge of the Company, no counterparty is any such party threatening to any Material Contract is in default or breachdo so, in any material respecteach case except as has not had or would not reasonably be expected to have, of such individually or in the aggregate, a Company Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Arch Resources, Inc.), Merger Agreement (CONSOL Energy Inc.)
Material Contracts. (ia) Except for this Agreement and except for Contracts disclosed in the Data Room or filed as exhibits to the Company Disclosure Schedule 3.1(p)(i) contains a list SEC Reports filed with the SEC prior to the date of all Material Contracts (this Agreement, as defined in Section 3.1(p)(ii) below) to which of the date hereof, none of the Company or any of the Company its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by which the Company or any pursuant to Item 4 of the Company Subsidiaries is otherwise bound. A true, correct and complete copy Instructions to Exhibits of each Material Contract has been furnished or made available to Parent or its representatives.Form 20-F under the Exchange Act;
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts Contract involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment or receipt of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness;
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any other Personthird party;
(Hiv) each any Contract with any directorthat limits, officeror purports to limit, member, employee or Affiliate the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time;
(v) any material Contract entered into after December 31, 2010, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person, which is material to the Company and its Subsidiaries, taken as a whole;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves an amount of payments which is material to the Company and its Subsidiaries, taken as a whole;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) each Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment in an amount which is material to the Company and its Subsidiaries, taken as a whole, to be made by the Company or any of its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in an amount which is material to the Company and its Subsidiaries, taken as a whole; and
(Iix) any other contracts and agreements, whether or not made in the Loan Agreements ordinary course of business, which are material to the Company and each other indentureits Subsidiaries, mortgage, promissory note or other agreement or commitment for the borrowing of moneytaken as a whole, or for the conduct of their respective businesses, or the absence of which would have a line of creditCompany Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above, whether or not filed as an exhibit to the Company SEC Reports or disclosed in the Company Disclosure Schedule or the Data Room, is referred to herein as a “Material Contract”.
(iiib) Except As of the date hereof, except as set forth on would not have a Company Disclosure Schedule 3.1(p)(iii)Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is a party to:
(A) in breach or violation of, or default under, any Material Contract containing covenants that in any way purport to restrict and no event has occurred or prohibit, in any material respect, not occurred through the business activity of the Company Company’s or any of the Company Subsidiaries its Subsidiaries’ action or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; inaction or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company’s Knowledge, the counterparties thereto, and is in full force and effect and is enforceable against the Company action or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice inaction of any material default or breach (or any event thatthird party, that with notice or lapse of time or both, both would constitute a material breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or breach)notice of default, termination or cancellation under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (NewQuest Asia Fund I, L.P.), Merger Agreement (China Hydroelectric Corp)
Material Contracts. (i) Except as filed as exhibits to the Company SEC Documents, Section 4.14 of the Company Disclosure Schedule 3.1(p)(i) contains sets forth a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) each Contract to which the Company or any of the Company Subsidiaries is a party or by which any of the Company, any of the Company Subsidiaries, or any of their respective properties or assets are bound, which, as of the date of this Agreement:
(i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) involves annual expenditures in excess of $250,000;
(iii) is a Contract for the sale of any of the assets of the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy other than in the ordinary course of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary business in excess of $1,000,000 250,000 or more in for the grant to any twelve (12) month period, pursuant Person of any preferential rights to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrompurchase any of its assets;
(Biv) relates to any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with of any operating business or any Equity Interests in any other Person;
(H) , in each Contract with any directorcase, officerthat contain representations, memberwarranties, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenturecovenants, mortgage, promissory note indemnities or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity obligations of the Company or any of the Company Subsidiaries that are still in effect;
(v) gives rise to liabilities or materially limit the freedom obligations of the Company or any of the Company Subsidiaries thereof in excess of $500,000, other than a Company Benefit Plan listed on Section 4.16(a) of the Company Disclosure Schedule;
(vi) contains any non-compete, exclusivity, most favored nation or similar provisions that restrict the Company with respect to engage in the conduct of any line of business or to compete conduct of business in any geographical area or with any Person; or;
(Bvii) relates to the incurrence, assumption, guarantee or provision by the Company or any Contract that grants to of the Company Subsidiaries of any Indebtedness, or provides for imposition of a third Person a right Lien on any of first refusal, option, preferential right or similar right to acquire properties or the assets of the Company or any Company Subsidiary Subsidiary, in each case, involving amounts in excess of $100,000, other than accounts receivable and payable incurred or arising in the ordinary course of business;
(viii) is entered into with any Governmental Authority;
(ix) is a Contract pursuant to which the Company or any Contract of the Company Subsidiaries (A) is granted a license or right to use, or covenant not to be sued under, any Intellectual Property (excluding licenses for commercially available, off-the-shelf Software and Open Source Software) or (B) grants a license or right to use, or covenant not to be sued under, any Intellectual Property (other than non-exclusive licenses granted to customers of the Company or any of the Company Subsidiaries in the ordinary course of business), in each case (A) and (B), solely to the extent that grants such license, right or covenant is provided pursuant to a Contract which requires payments or other consideration to or from any third Person in excess of $250,000 in any year;
(x) is an individual employment Contract or Contract with an individual independent contractor or individual consultant, or any similar Contract which is not cancellable with less than 60 days’ notice without penalty or the acceleration or payment of any compensation or benefits thereunder;
(xi) relates to a partnership, joint venture, strategic alliance, profit sharing or similar arrangement or proprietary information;
(xii) is a Contract with any current executive officer of the Company, any member of the Company Board or any holder of 5% or more of the Company Common Stock on a fully diluted basis, or any Affiliate of the foregoing (other than a Company Benefit Plan that is listed on Section 4.16(a) of the Company Disclosure Schedule);
(xiii) is a collective bargaining agreement or other Contract with any labor union or other employee representative group;
(xiv) is a Contract under which a consent of, or notice to, any party other than the Company or a power Company Subsidiary is required in connection with the Transactions;
(xv) is a Contract providing for incurrence of attorney any fees and expenses payable to third parties (including all fees, expenses, disbursements and other similar amounts payable to attorneys, financial advisors or accountants) incurred by the Company or any of the Company Subsidiaries in connection with the Transactions or otherwise relating to the negotiation, documentation or consummation of the Transactions, this Agreement or of any documents or agreements contemplated hereby, or any retention or transaction bonus or change of control agreements with any Employee or board member, or any management fees owing to any stockholder; or
(xvi) is a Contract for the provision of products or services with any Major Customer or Major Supplier. Each contract of the type described above in Section 4.14 is referred to herein as a “Material Contract.” Section 4.14 of the Company Disclosure Schedule identifies those Material Contracts for which the consent of, or, or prior notice to, the counterparty of the Company or any Company Subsidiary.
(iv) Subsidiary is required for the consummation of the Transactions. Except as set forth on in Section 4.14 of the Company Disclosure Schedule 3.1(p)(iv)Schedule, true and correct copies or forms of each Material Contract have been made available to Parent. Except for expirations or terminations in the ordinary course of business in accordance with the terms of such Material Contract or as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is a valid and binding agreement of on the Company or the Company Subsidiary, as the case may be, party thereto applicable Subsidiary and, to the Knowledge of the Company, the counterparties each other party thereto, as applicable, and is in full force and effect (except as such enforceability may be limited by the Bankruptcy and is enforceable against the Company or the applicable Company SubsidiaryEquity Exceptions), and, and (ii) to the Knowledge of the Company, there is no event or condition which has occurred or exists, which constitutes or would reasonably be expected constitute (with or without notice, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice happening of any event or the passage of time) a material default or breach (under any Material Contract by the Company or its Subsidiary. There are no and, since January 1, 2021, there have not been, any event that, material disputes or material indemnity claims with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty respect to any Material Contract is in default (or breach, in any material respect, of such Material predecessor Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract).
Appears in 2 contracts
Sources: Merger Agreement (AdTheorent Holding Company, Inc.), Merger Agreement (AdTheorent Holding Company, Inc.)
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Except for this Agreement, for Contracts (filed as defined an exhibit to the SEC Documents or as disclosed in Section 3.1(p)(ii4.11(a) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any Disclosure Schedule, as of the Company Subsidiaries is otherwise bound. A true, correct and complete copy date of each Material Contract has been furnished or made available to Parent or its representatives.
this Agreement (iia) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to, and (b) none of the Company, any of its Subsidiaries, or any of their respective properties, assets or rights is bound by any:
(i) Contract that is or would be required to be filed by the Company as a “material contract” with the SEC pursuant to Item 601 of Regulation S-K under the Securities Act;
(ii) Contract of employment, consulting, management, separation, severance, indemnification, or similar agreement with any (A) any Contract containing covenants that in any way purport to restrict Person holding more than 5% of the fully diluted shares of the Company’s Common Stock at ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) director or prohibit, in any material respect, the business activity corporate officer of the Company or any of its Subsidiaries or (C) any Management-Level Employee;
(iii) Contract of employment, consulting, management, separation, severance, indemnification, or similar agreement with any employee, consultant or independent contractor providing for total annual compensation (exclusive of benefits costs) from the Company or any Subsidiary in excess of $250,000 and which is not terminable by the Company or any Subsidiary upon less than 90 days’ notice without severance, penalty or other obligations other than under any applicable Law;
(iv) loan, credit agreement, note, mortgage, indenture, bond, letter of credit or other obligation or agreement or other instrument entered into by the Company or any Subsidiary for or relating to Indebtedness (including capitalized lease obligations, but for purposes of clarity, excluding any operating lease obligations), in each case involving obligations in excess of $1,000,000, or any guarantee by the Company or any Subsidiary of third-party obligations or any guarantee by a third party of such obligations of the Company or any Subsidiary, in each case other than accounts receivable and payable and loans made by or to the Company to or by any of its Subsidiaries or materially limit among Subsidiaries;
(v) Collective Bargaining Agreement;
(vi) Contract for the lease or sublease of personal property with an annual base rental obligation of more than $500,000 or a total remaining rental obligation of more than $1,000,000;
(vii) joint venture, strategic alliance, partnership, limited liability company agreement or similar agreement or arrangement with any other Person;
(viii) Contract (A) limiting the type of business activity of the Company, any Subsidiary or other Affiliate (including Parent and its Affiliates after the Merger) or limiting the freedom of the Company or any of its Subsidiaries or other Affiliate (including Parent and its Affiliates after the Company Subsidiaries thereof Merger) to engage in any line of business or in any geographic area, to compete with any Person; or
Person (other than the Company or any Subsidiary) or to solicit customers, in each case to the extent such limitation is material to the business of the Company and its Subsidiaries, taken as a whole or (B) that contains pricing or margin provisions that provide “most favored nation” or similar provisions with respect to pricing to a Significant Customer of the Company;
(ix) Contract (other than any Contracts of the type described in clauses (i)—(viii) above, irrespective of the dollar threshold, and other than real or personal property leases) requiring payments by the Company or any Subsidiary in excess of $1.0 million per year and which are not terminable by the Company or such Subsidiary upon less than 180 days’ notice;
(x) Contract relating to an acquisition, divestiture, merger or similar transaction that contains representations, covenants, indemnities or other obligations (including payment, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) of the Company or any of its Subsidiaries that are still in effect and would reasonably be expected to result in payments in excess of $100,000 for any such Contract individually or $1,000,000 in the aggregate for all such Contracts;
(xi) other than an acquisition subject to clause (x) above, Contract that obligates the Company to make any capital commitment or expenditure (including pursuant to any joint venture) in excess of $500,000;
(xii) Contract that limits the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries, limits the pledging of the capital stock of the Company or any of its Subsidiaries or limits the issuance of guarantees by any Subsidiary of the Company;
(xiii) Contract permitting or restricting the use by the Company or any Subsidiary of Intellectual Property that is material to the conduct of the business of the Company and its Subsidiaries, taken as a whole (other than licenses or access rights to off-the-shelf software or cloud-based software solutions requiring payments by the Company or any Subsidiary of less than $500,000 over the life of the license or subscription);
(xiv) Contract relating to any interest rate, derivatives, hedging or similar transaction that is material to the business of the Company and its Subsidiaries, taken as a whole;
(xv) Government Contract or an Order of a Governmental Entity to which the Company or any of its Subsidiaries is subject involving future performance by the Company or any of its Subsidiaries that is material to the business of the Company and its Subsidiaries, taken as a whole;
(xvi) (A) material Contract with any Significant Customer or (B) Contract with any Significant Supplier requiring payments by the Company or any Subsidiary in excess of $1.0 million per year, in each case with respect to clauses (A) and (B), other than purchase orders or similar agreements issued under long-term or other master agreements;
(xvii) Contract that grants to a third Person a right any rights of first refusal, optionrights of first negotiation or other similar rights to any Person with respect to the sale, preferential right transfer, pledge or similar right to acquire properties other disposition of (A) any business or assets of the Company or any of its Subsidiaries that is material to the business of the Company and its Subsidiaries, taken as a whole, or (B) any Subsidiary or any of the Company;
(xviii) Contract that grants would reasonably be expected to a third party a power of attorney of prohibit or materially delay the Transactions; and
(xix) any other Contract that would reasonably be expected to involve payments by or to the Company or any Company Subsidiaryof its Subsidiaries in excess of $1.0 million during any 12-month period after the date hereof. Each Contract of the type described in clauses (i) through (xix) above is referred to herein as a “Material Contract.”
(ivb) Except as set forth on in Section 4.11(b) of the Company Disclosure Schedule 3.1(p)(ivSchedule, and except as, individually or in the aggregate, have not had and would not have a Company Material Adverse Effect: (i) each Material Contract is valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and is in full force and effect and enforceable against the Company or its Subsidiary in accordance with its terms subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights and to general equitable principles (whether considered in a proceeding in equity or at law); (ii) to the Knowledge of the Company, each Material Contract is a valid and binding agreement on the other parties thereto, is in full force and effect and enforceable against such other party in accordance with its terms subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights and to general equitable principles (whether considered in a proceeding in equity or at law); (iii) the Company or the Company Subsidiary, as the case may be, party thereto and each of its Subsidiaries and, to the Knowledge of the Company, the counterparties thereto, each other party thereto has performed in all material respects all obligations required to be performed by it to date under each Material Contract and is not in full force and effect and is enforceable against breach or default under such Material Contract; (iv) to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received written notice of default or breach under any Material Contract or of the applicable existence of any event or condition which constitutes, or, after notice or with or without the lapse of time or both, will constitute, a default or breach or alleged default or breach on the part of the Company, or any of its Subsidiaries and, to the Knowledge of the Company, no such condition exists; and (v) to the Knowledge of the Company, neither the Company Subsidiarynor any of its Subsidiaries has received written notice from any other party to a Material Contract with respect to the termination, non-renewal or renegotiation in any material respect of the terms of, and, to the Knowledge of the Company, the no such other parties theretoparty intends to terminate, as the case may benot renew, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach renegotiate in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under respect the terms of of, any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. .
(c) The Company has made available to Parent prior to Parent, as of the date hereof a of this Agreement, true and correct copy complete copies of each (including all material amendments or modifications to), all Material ContractContracts.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Lmi Aerospace Inc)
Material Contracts. (ia) Section 4.15(a) of the Company Disclosure Schedule 3.1(p)(i) contains sets forth a list as of all Material the date of this Agreement of each of the following Contracts other than Company Employee Plans (as defined in which shall be governed by Section 3.1(p)(ii) below) 4.17), to which the Company or any of the Company its Subsidiaries is a party or by which any of them or any of their respective assets are bound (each such Contract listed or required to be so listed, and each of the following Contracts to which the Company or any of its Subsidiaries becomes a party or by which any of them or any of their respective assets become bound after the date of this Agreement, an “Company Material Contract”):
(i) any Contract (other than Leases), including any development, manufacturing, supply or distribution agreement, that involved or would reasonably be expected to involve in the fiscal year ending December 31, 2024, the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries is otherwise bound. A true, correct and complete copy in an amount that had a value or having an expected value in excess of each Material Contract has been furnished or made available to Parent or its representatives.$1,200,000;
(ii) Material Contracts each Contract providing for the acquisition or disposition of assets outside of the ordinary course of business or of securities by or from any Person or any business (or any Contract providing for an option, right of first refusal or offer or similar rights with respect to any of the foregoing) (A) that involved since December 31, 2021, or would reasonably be expected to involve, the payment of consideration in excess of $1,000,000 in the aggregate with respect to such Contract or series of related Contracts, or (B) that contains (or would contain, in the case of an option, right of first refusal or offer or similar rights) (x) ongoing representations, warranties, covenants, indemnities or other obligations (including “earn-out”, contingent value rights or other contingent payment or value obligations) that would involve or would reasonably be expected to require the receipt or making of payments in excess of $1,000,000 or (y) any provision pursuant to which any Equity Securities of the Company or any of its Subsidiaries (including any Company ADS) may be issued;
(iii) any Contract between any Governmental Authority, on the one hand, and the Company Subsidiaries (“Material Contracts”) shall include:
(A) or any Contracts with third parties which of its Subsidiaries, on the other hand, involving or that would reasonably be reasonably expected to involve payments after the date of this Agreement to or from such Governmental Authority in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024;
(iv) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or a any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area, (B) contains material exclusivity or “most favored nation” obligations or restrictions with respect to the Company Subsidiary or any of its Subsidiaries or (C) contains any other provisions that materially restrict the ability of the Company or any of its Subsidiaries to develop, use or maintain the Company Platform or to sell, market, distribute, promote, manufacture, develop, use, commercialize, or test or research any Company Internal Drug Product Candidate, directly or indirectly through Third Parties, in any material respect;
(v) any Contract relating to Indebtedness of the Company or any of its Subsidiaries (including under any short-term financing facility) in excess of $1,000,000 (whether incurred, assumed, guaranteed or more secured by any asset of the Company or any of its Subsidiaries) other than any Contract exclusively between or among the Company and any of its wholly owned Subsidiaries;
(vi) any Contract restricting the payment of dividends or the making of distributions in respect of any twelve Equity Securities of the Company or any of its Subsidiaries or the repurchase or redemption of, any Equity Securities of the Company or any of its Subsidiaries (12other than Contracts relating to Indebtedness described in clause (v) month periodof this Section 4.15(a) and set forth in clause (v) of Section 4.15(a) of the Company Disclosure Schedule);
(vii) any material joint venture, profit-sharing, partnership, collaboration or co-promotion agreement;
(viii) any Contract with any Person (A) pursuant to which the Company or a Company Subsidiary gathersits Subsidiaries are required to pay milestones, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering royalties or other pipeline systems contingent payments based on any research, testing, development, regulatory filings or processingapproval, compressionsale, treating distribution, commercial manufacture or storage facilities other similar occurrences, developments, activities or events (other than any such Contracts that are reasonably expected to require aggregate payments Contract with contract research organizations for internal research entered into in the ordinary course of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (Abusiness) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license, or any other similar rights with respect to the Company Platform, any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including External Drug Product Candidate, any Company Member Interest Holder Internal Drug Product Candidate or Affiliate thereofany material Intellectual Property Rights, in the case of each of clauses (A) and (B), which payments are in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024, or any fiscal year thereafter;
(Eix) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale lease or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person sublease for personal property for which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses annual rental payments made by the Company or any of its Subsidiaries were, or are expected to be, in excess of $1,000,000 in the Company Subsidiaries with fiscal year ending December 31, 2024, or any other Personfiscal year thereafter;
(Hx) each Contract with any director, officer, member, employee or Affiliate of all material Contracts pursuant to which the Company or any of its Subsidiaries (A) receives or is granted any license (including any sublicense) to, or covenant not to be sued under, any Intellectual Property Rights (other than licenses to commercially available software, including off-the-shelf software, or other commercially available technology), including any Intellectual Property Rights (i) with respect to the Company SubsidiariesPlatform, any Company External Drug Product Candidate or any Company Internal Drug Product Candidate, or (ii) used in the operation of the business of the Company or its Subsidiaries or (B) grants any license (including any sublicense) to, or covenant not to be sued under, any Company Intellectual Property (other than non-exclusive licenses granted in the ordinary course of business), in the case of each of clauses (A) and (B), that (1) involved aggregate payments by or to the Company or any of its Subsidiaries in excess of $1,000,000 in the fiscal year ending December 31, 2023, or will involve aggregate payments by or to the Company or any of its Subsidiaries in excess of $1,000,000 in any fiscal year thereafter or (2) are material to the development or operation of the Company Platform or the development, manufacture or commercialization or manufacture of any Company External Drug Product Candidate or Company Internal Drug Product Candidate;
(xi) any Contract related to any merger, acquisition, consolidation, sale, spin-off or other business combination or divestiture transaction involving the Company, its Subsidiaries or any business unit thereof;
(xii) any Contract providing for the development (including co- or joint development) of any Intellectual Property Rights, independently or jointly, (A) by the Company or its Subsidiaries or (B) for the Company or its Subsidiaries (other than Employee Proprietary Information Agreements and Consultant Proprietary Information Agreements, copies of which have been made available to Parent’s counsel);
(xiii) any Contracts (A) with any record or, to the knowledge of the Company, beneficial owner as of the date hereof of five percent or more of the voting securities of the Company, or (B) of the type that would be required to be disclosed under Item 404 of Regulation S-K under the 1933 Act;
(xiv) any Contract involving the settlement or compromise of any Proceedings (whether pending or threatened) (or series of related Proceedings) which will involve payments after the date of this Agreement in excess of $500,000;
(xv) any settlement agreements entered into by or with respect to the Company or any of its Subsidiaries with any Taxing Authority and providing for payments in excess of $500,000; and
(Ixvi) any Contract that obligates the Loan Agreements Company or any Subsidiary of the Company to make any capital investment or capital expenditure outside the ordinary course of business and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing in excess of money, or for a line of credit$500,000.
(iiib) Except All Company Material Contracts are, subject to the Bankruptcy and Equity Exceptions, (i) valid and binding obligations of the Company or a Subsidiary of the Company (as set forth on the case may be) and, to the knowledge of the Company, each of the other parties thereto, and (ii) in full force and effect and enforceable in accordance with their respective terms against the Company Disclosure Schedule 3.1(p)(iiior its Subsidiaries (as the case may be) and, to the knowledge of the Company, each of the other parties thereto (in each case except for such Company Material Contracts that are terminated after the date of this Agreement in accordance with their respective terms, other than as a result of a default or breach by the Company or any of its Subsidiaries of any of the provisions thereof), except where the failure to be valid and binding obligations and in full force and effect and enforceable has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Company, as of the date of this Agreement, no Person is seeking to terminate or challenge the validity or enforceability of any Company Material Contract, except such terminations or challenges which have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any of the other parties thereto, has violated any provision of, or committed or failed to perform any act that (with or without notice, lapse of time or both) would constitute a default under any provision of, and neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of that it has violated or defaulted under, any material default or breach Company Material Contract, except for those violations and defaults (or any event thatpotential defaults) that would not have had and would not reasonably be expected to have, with notice individually or lapse of time or bothin the aggregate, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material ContractAdverse Effect. The Company has made available to Parent prior to true and complete copies of each Company Material Contract as in effect as of the date hereof a true and correct copy of each Material Contracthereof.
Appears in 2 contracts
Sources: Transaction Agreement (Recursion Pharmaceuticals, Inc.), Transaction Agreement (Exscientia PLC)
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which Except for this Agreement, the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A trueParent Benefit Plans, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts agreements with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts customers for the construction provision of gathering or other pipeline systems or processingdrilling and related services, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating agreements filed as exhibits to the sale of obsolete Parent SEC Documents or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company the applicable subsection of Section 4.19(a) of the Parent Disclosure Schedule 3.1(p)(iii)Schedule, as of the date hereof, neither the Company Parent nor any of its Subsidiaries is a party toto or bound by:
(Ai) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) any Contract containing covenants that in (A) imposes any way purport to restrict restriction on the right or prohibit, in any material respect, the business activity ability of the Company Parent or any of the Company its Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; orother person or acquire or dispose of the securities of another person (other than any agreement related to a potential Takeover Proposal) or (B) contains an exclusivity or “most favored nation” clause that restricts the business of Parent or any of its Subsidiaries in a material manner;
(iii) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between Parent and its Subsidiaries or among Parent’s Subsidiaries;
(iv) any Contract expressly limiting or restricting the ability of Parent or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(v) any Contract that by its terms calls for aggregate payments by or to Parent or any of its Subsidiaries of more than $50.0 million in the aggregate over the remaining term of such Contract, except for (A) Contracts with a customer and (B) any such Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company may be cancelled by Parent or any Company Subsidiary of its Subsidiaries with a penalty or other liability of less than $10.0 million to Parent or any of its Subsidiaries, upon notice of 60 days or less; and
(vi) any Contract that grants contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to a third party a power result in payments after the date hereof by Parent or any of attorney its Subsidiaries in excess of $50.0 million. All Contracts of the Company or any Company Subsidiarytypes referred to in clauses (i) through (vi) above are referred to herein as (“Parent Material Contracts”).
(ivb) Parent has delivered or made available to the Company true and complete copies of all Parent Material Contracts, subject to certain redactions made in order to comply with legal requirements.
(c) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) neither Parent nor any Subsidiary of Parent is in breach of or default under the terms of any Parent Material Contract, (ii) to Parent’s knowledge, no other party to any Parent Material Contract is in breach of or default under the terms of any Parent Material Contract and (iii) each Parent Material Contract is a valid and binding agreement obligation of the Company Parent or the Company Subsidiary, as the case may be, Subsidiary of Parent that is party thereto and, to the Knowledge Parent’s knowledge, of the Company, the counterparties each other party thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiaryeffect, and, subject to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractRemedies Exceptions.
Appears in 2 contracts
Sources: Merger Agreement (Atwood Oceanics Inc), Merger Agreement (Ensco PLC)
Material Contracts. (a) Except for this Agreement and for the Contracts disclosed in the Filed Company SEC Documents, Section 4.14(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, and the Company has made available to Parent true and complete copies, of:
(i) each Contract that would be required to be filed by the Company Disclosure Schedule 3.1(p)(ias a “material contract” pursuant to Item 601(b)(10) contains a list of all Material Contracts Regulation S-K under the Securities Act;
(as defined in Section 3.1(p)(iiii) below) each Contract to which the Company or any Company Subsidiary is a party that (A) restricts the ability of the Company Subsidiaries is or any Company Subsidiary to compete in any business or with any Person in any geographical area, (B) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party (C) provides for “exclusivity” or any similar requirement in favor of any third party or by (D) provides preferential rights or rights of first or last offer or refusal to any third party, except in the case of each of clauses (A), (B), (C) and (D) for such restrictions, requirements and provisions that are not material to the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract under which the Company or any of the Company Subsidiaries is otherwise bound. A trueSubsidiary licenses or sublicenses Intellectual Property from or to any third party (other than generally commercially available, correct off-the-shelf software programs), except for such licenses and complete copy of each Material Contract has been furnished or made available sublicenses that are not material to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:Subsidiaries, taken as a whole;
(Aiv) any Contracts with third parties each Contract to which would be reasonably expected to involve payments to or from the Company or a any Company Subsidiary is a party that provides for any payment, receipt or expenditure in excess of $1,000,000 or more 250,000 in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(Bv) any Contracts each Contract that constitutes a commitment relating to Indebtedness for borrowed money or the construction deferred purchase price of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment property by the Company or any Company Subsidiary of (whether incurred, assumed, guaranteed or secured by any penalty;
(Casset) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary excess of $1,000,000 or more in any twelve (12) month period250,000, other than Contracts relating to the sale of obsolete solely between or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by among the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or and/or any Company Subsidiary of any penaltySubsidiary;
(Dvi) any Contracts each Contract under which the Company or any Company Subsidiary assumed is the landlord, sublandlord, tenant, subtenant or guaranteed occupant with respect to any outstanding Debt of a third party (including any Company Member Interest Holder material real property leased, subleased, licensed or Affiliate thereof)otherwise occupied;
(Evii) each Contract for any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commoditiesDerivative Transaction;
(Fviii) each material partnership, joint venture or limited liability company agreement, other than any Contracts relating to customary joint operating agreements, unit agreements or participation agreements affecting the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations Oil and Gas Properties of the Company or any Company Subsidiary;
(ix) each joint development agreement, exploration agreement, participation, farmout, farm-in or program agreement or similar Contract requiring the Company or any Subsidiary to make expenditures that would reasonably be expected to be in excess of $250,000 in the aggregate during the twelve (12) month period following the date of this Agreement, other than customary joint operating agreements and which could reasonably require continuous development obligations under leases relating to any of the payment Oil and Gas Properties of monies by the Company or any Company Subsidiary to the applicable sellers thereunderSubsidiary;
(Gx) each joint venture, partnership Contract that provides for a “take-or-pay” clause or any similar prepayment obligation, acreage dedication, minimum volume commitments or capacity reservation fees to a gathering transportation or other arrangement downstream of the wellhead, that cover, guaranty or commit volumes of Hydrocarbons of the Company or any Company Subsidiary;
(xi) each Contract involving a sharing that would or would reasonably be expected to prevent, materially delay or materially impede the consummation of profits the transactions contemplated by this Agreement or losses by that, upon the consummation of the Merger, would (either alone or upon the occurrence of any additional acts or events, including the passage of time) result in any payment or benefit (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any right to any payment or benefits, from Parent, Merger Sub, the Company or any of their respective Subsidiaries to any officer, director, consultant or employee of any of the Company Subsidiaries with any other Person;foregoing; and
(Hxii) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of binding upon the Company or any Company Subsidiary or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act. Each such Contract that grants described in clauses (i) through (xii) above is referred to herein as a third party a power “Company Specified Contract.”
(b) As of attorney the date of this Agreement, each of the Company or any Company Subsidiary.
(iv) Except as set forth Specified Contracts is valid, binding and enforceable on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company SubsidiarySubsidiaries, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the each other parties party thereto, and is in full force and effect (i) except for such failures to be valid, binding or enforceable or to be in full force and effect as would not reasonably be expected to, individually or in the case may beaggregate, in accordance with its terms, have a Company Material Adverse Effect and (ii) except to the extent that the enforcement thereof insofar as such enforceability may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or other similar laws now or hereafter in effect Laws of general applicability relating to or affecting creditors’ rights generally and (B) general rights, or by principles governing the availability of equity (regardless of equitable remedies, whether enforceability is considered in a proceeding Proceeding at law or in equity). Neither As of the date of this Agreement, there is no default under any Company Specified Contract by the Company nor any or the Company Subsidiary is in default or breach in any material respectSubsidiaries or, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To to the Knowledge of the Company, any other party thereto, and no counterparty event has occurred that (with or without notice or lapse of time, or both) would constitute a default thereunder by the Company or any Company Subsidiary or, to the Knowledge of the Company, any Material Contract is in default or breachother party thereto, in any material respecteach case except as would not reasonably be expected to, of such individually or in the aggregate, have a Company Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Sandridge Energy Inc), Merger Agreement (Bonanza Creek Energy, Inc.)
Material Contracts. (a) The Earlychildhood Disclosure Schedule sets forth a complete and accurate list, and Earlychildhood has made available to SmarterKids, true and complete copies of:
(i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) each contract that provides for annual payments to which the Company or by Earlychildhood or any of the Company its Subsidiaries is a party or by which the Company or any in excess of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.$150,000;
(ii) Material Contracts each contract of Earlychildhood or any of its Subsidiaries that was not entered into in the ordinary course of business;
(iii) any contract under which Earlychildhood or any of its Subsidiaries has or may, except by way of endorsement of negotiable instruments for collection in the ordinary course of business and consistent with past practice, become absolutely or contingently or otherwise liable for (x) the performance under any contract of any other person, firm or corporation or (y) the whole or any part of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) indebtedness or liabilities of any Contracts with third parties which would be reasonably expected to involve payments to other person, firm or from the Company or a Company Subsidiary corporation, in all cases, individually in excess of $1,000,000 or more and in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefromaggregate in excess of $5,000,000;
(Biv) all employment agreements, consulting agreements, contracts or commitments with any Contracts for the construction employee or member of gathering or other pipeline systems or processingEarlychildhood's Management Committee, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or those which are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company Earlychildhood or any Company Subsidiary of any penaltyits Subsidiaries on not more than thirty days notice without liability or financial obligation, and within each such category of agreements, contracts or commitments, which are individually in excess of $150,000;
(Cv) any Contracts agreements or plans, including, without limitation, any stock option, stock or equity appreciation right or stock or equity purchase plans or agreements, 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;
(not described in clause (Avi) any contract with any Member, managing member or (B) above) which would be reasonably expected to involve payments to or from member of the Company or a Company Subsidiary Management Committee of $1,000,000 or more in any twelve (12) month periodEarlychildhood, other than Contracts relating in such person's capacity as a Member, managing member or member of the Management Committee, or any contract with any entity in which, to the sale knowledge of obsolete Earlychildhood, any Member, managing member or excess assets not required for member of the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company Management Committee or any Company Subsidiary family member of any penaltysuch person has a material economic interest;
(Dvii) any Contracts under which the Company contract that limits or restricts in any material respect where Earlychildhood or any Company Subsidiary assumed of its Subsidiaries may conduct its or guaranteed their business or the type or line of business that Earlychildhood or any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof)its Subsidiaries may engage in;
(Eviii) any powers of attorney outstanding futures(other than those issued in the ordinary course of business with respect to Tax matters), swapor material obligations or liabilities (absolute or contingent) as guarantor, collarsurety, putcosigner, callendorser, floorco-maker, capindemnitor, option, hedging, forward sale or other derivative Contracts involving hydrocarbons otherwise respecting the obligations or other commodities;liabilities of any person.
(Fix) any Contracts relating material contract containing any agreement with respect to the acquisition (by merger, purchase any change of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiariescontrol; and
(Ix) each material amendment, supplement, and modification (whether oral or written) in respect of any of the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of creditforegoing.
(iiib) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company Neither Earlychildhood nor any of its Subsidiaries is a party to:
(A) have breached, or received in writing any Contract containing covenants claim or notice that in any way purport to restrict or prohibitit has breached, in any material respect, the business activity of the Company or any of the Company Subsidiaries terms or materially limit the freedom conditions of any material agreement, contract or commitment set forth or required to be set forth in Section 3.12 of the Company Earlychildhood Disclosure Schedule ("Earlychildhood Material Contracts") in such a manner as, individually or any of in the Company Subsidiaries thereof aggregate, is reasonably likely to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) have an Earlychildhood Material Adverse Effect. Except as set forth on Company in the Earlychildhood Disclosure Schedule 3.1(p)(iv)Schedule, each Earlychildhood Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and that has not expired by its terms is in full force and effect, except for those contracts, the ineffectiveness of which would not reasonably be likely to have an Earlychildhood Material Adverse Effect and, if all of the consents, approvals, authorizations, filings, notifications and other actions listed with respect to such contract in the Earlychildhood Disclosure Schedule are obtained, taken or made, as applicable, such contract will continue, after the Effective Time, to be in full force and effect on identical terms.
(c) To the knowledge of Earlychildhood or its Subsidiaries, none of the parties to any Earlychildhood Material Contract have terminated, or notified Earlychildhood or any of its Subsidiaries in writing of its intent to materially reduce or terminate its business relationship with Earlychildhood or any of its Subsidiaries in the future.
(d) Neither of Earlychildhood nor any of its Subsidiaries have received written notice from any customer, or group of customers, that are under common ownership or control, and is enforceable against that accounted for a material percentage of the Company aggregate products and services furnished by Earlychildhood or any of its Subsidiaries since January 1, 1999 that such customer or group of customers has stopped or intends to stop purchasing Earlychildhood's or any of its Subsidiaries' products or services, nor has Earlychildhood or any of its Subsidiaries lost any supplier, or group of suppliers that are under common ownership or control, that accounted for a material percentage of the applicable Company Subsidiaryaggregate supplies purchased by Earlychildhood or any of its Subsidiaries since January 1, 1999.
(e) As of the Effective Time, Earlychildhood will have terminated the Executive Management Agreement, dated as of May 5, 1999 by and between Earlychildhood and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Sons, L.L.C., a Delaware limited liability company (the "Executive Management Agreement"), and, to from and after the Knowledge of the CompanyEffective Time, the other parties theretothere will be no further obligations or liabilities, as the case may beincluding payment obligations, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance outstanding or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contractdue thereunder. The Company has made available fees payable to Parent prior to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Sons, L.L.C. between the date hereof a true and correct copy of each Material Contractthe Effective Time pursuant to the Executive Management Agreement shall not exceed $25,000 per month.
Appears in 2 contracts
Sources: Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc), Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc)
Material Contracts. (a) Except for Contracts filed as exhibits to the Company SEC Reports or as disclosed in Section 3.15(a) of the Company Disclosure Letter, as of the date of this Agreement, (i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:, and (ii) none of the Company, any of its Subsidiaries or any of their respective properties, assets or Rights are bound by (in each case, other than any Company Benefit Plan, any Recorded Music Contracts and any Music Publishing Contracts):
(Ai) any Contract that is or would be required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act or disclosed by the Company in a Current Report on Form 8-K;
(ii) any limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture that is material to the Business of the Company and its Subsidiaries, taken as a whole, other than any such limited liability company, partnership or joint venture that is a Subsidiary of the Company;
(iii) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit a covenant limiting the freedom of the Company or any of the Company its Subsidiaries thereof to engage or compete in any line of business in any geographic area or to compete with any Person; orPerson that materially limits the conduct of the Businesses, taken as a whole, as presently conducted;
(Biv) any Contract that grants to a third under which (A) any Person a right (other than the Company or any of first refusal, option, preferential right its Subsidiaries) has directly or similar right to acquire properties or assets indirectly guaranteed outstanding Liabilities of the Company or any of its Subsidiaries or (B) the Company or any Subsidiary has directly or indirectly guaranteed outstanding Liabilities of any Person (other than the Company or any Subsidiary) (in each case of (A) and (B), which guarantee obligation exceeds $2,000,000, other than, in each case, endorsements for the purpose of collection in the ordinary course of business);
(v) any Contract under which the Company or the applicable Subsidiary has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness to, any Person (other than the Company or any of its Subsidiaries), in any such case which the outstanding balance, individually, is in excess of $2,000,000;
(vi) any Contract (other than among consolidated Subsidiaries of the Company) relating to any interest rate, currency or commodity derivatives or hedging transactions;
(vii) any Contract under which the Company or the applicable Subsidiary, directly or indirectly, has agreed to make after the date hereof any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries and other than extensions of trade credit in the ordinary course of business), in any such case which, individually, is in excess of $2,000,000;
(viii) any Contract that grants obligates the Company or the applicable Subsidiary to a third party a power make any capital commitment or capital expenditure (in each case, including pursuant to any joint venture, but not including to any of attorney the Company’s wholly-owned Subsidiaries in the ordinary course of business) in excess of $2,000,000;
(ix) any Contract that prohibits the pledging of capital stock of the Company or any Subsidiary of the Company Subsidiaryor prohibits the issuance of guarantees by any Subsidiary of the Company, in each case, other than pursuant to any joint venture; and
(x) any Contract that requires the future acquisition from another Person or future disposition to another Person of assets or capital stock or other equity interest of another Person and any other Contract that relates to an acquisition or similar transaction which contain indemnities or “earn-out” obligations with respect to the Company or any of its Subsidiaries, in any such case, after the date hereof with a value in excess of $2,000,000. Each Contract of the type described in clauses (i) through (x) above, together with (I) agreements relating to the Common Law Trademarks and (II) the Sony Music Agreements, is referred to herein as a “Material Contract”.
(ivb) Except as set forth on would not have a Company Disclosure Schedule 3.1(p)(iv), Material Adverse Effect: (i) each Material Contract is is, subject to the Enforceability Exceptions, a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto its applicable Subsidiary and, to the Knowledge of the Company, the counterparties each other party thereto, and is in full force and effect and is enforceable against the Company or its Subsidiary and, to the Knowledge of the Company, each other party thereto, in accordance with its terms, (ii) none of the Company, its applicable Subsidiary or, to the Knowledge of the Company, any other party thereto, is in breach of or default under any such Material Contract, (iii) to the Knowledge of the Company, no party to any Material Contract has committed or failed to perform any act under and no event has occurred which, with or without notice, lapse of time or both, would constitute a default, require consent or result in the loss of a material benefit, give rise to any right of termination, amendment, acceleration or cancellation, under the provisions of such Material Contract, and (iv) neither the Company Subsidiarynor any of its Subsidiaries has received written notice from any other party to a Material Contract (A) of the existence of any event, or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, or (B) with respect to the termination, non-renewal or renegotiation of the terms of, and, to the Knowledge of the Company, the no such other parties theretoparty intends to terminate, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respectnot renew, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under renegotiate the terms of of, any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to true and complete copies of all Material Contracts in effect as of the date hereof a true and correct copy hereof, including any material amendments thereto.
(c) The aggregate indebtedness for borrowed money that is outstanding or may be incurred under Contracts that would be required to be listed under Section 3.15(a)(v) of each Material Contractthe Company Disclosure Letter if Section 3.15(a)(v) did not contain an exception for Contracts that relate to obligations for borrowed money that do not exceed $2,000,000 but are not listed under such section of the Company Disclosure Letter is not in excess of $5,000,000.
Appears in 1 contract
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i4.13(a) contains sets forth a list of all Material of the following Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company its Subsidiaries is a party as of the date hereof (collectively, the “Material Contracts”):
(i) any material Contract with one of the top ten (10) customers of the Company and its Subsidiaries, taken as a whole, as determined by revenue of the Company and its Subsidiaries, taken as a whole, during the 12 months ended December 31, 2014;
(ii) any material Contract with one of the top ten (10) suppliers or vendors to the Company and its Subsidiaries, taken as a whole, as determined by which expenditures by the Company and its Subsidiaries, taken as a whole, during the 12 months ended December 31, 2014;
(iii) any Contract that involves aggregate payments in any calendar year by the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary thereof of $1,000,000 5,000,000 or more in any twelve (12) month periodmore, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts except for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts Contract that are reasonably expected to require aggregate payments of less than $2,500,000 may be cancelled without penalty or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary thereof upon notice of any penaltyninety (90) days or less;
(Civ) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts material Contract relating to the sale incurrence or guarantee of obsolete or excess assets not required Indebtedness for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment borrowed money by the Company or any Company Subsidiary of any penaltyits Subsidiaries in an amount in excess of $5,000,000;
(Dv) any Contracts under stockholders, investors rights, registration rights or similar Contract;
(vi) any material Contract that governs a joint venture, partnership or other similar arrangements (other than legal documents by which any Person (other than an individual) establishes its legal existence or that govern its internal affairs) involving a sharing of profits, losses or liabilities by the Company or any of its Subsidiaries with any Person that is material to the business of the Company Subsidiary assumed or guaranteed any outstanding Debt of and its Subsidiaries, taken as a third party (including any Company Member Interest Holder or Affiliate thereof)whole;
(Evii) any outstanding futuresContract containing a covenant that limits the freedom of the Company or any of its Subsidiaries to (A) operate in any line of business or compete with any Person or (B) sell any products or services to any other Person or in any geographic location, swap, collar, put, call, floor, cap, option, hedging, forward sale except for any such Contract (including the non-competition covenant) that may be cancelled without material penalty by the Company or other derivative Contracts involving hydrocarbons any Subsidiary thereof upon notice of ninety (90) days or other commoditiesless;
(Fviii) any Contracts relating Contract that includes any “most favored nations” terms and conditions or any material exclusive dealing arrangement;
(ix) any Contract with respect to the acquisition or disposition of the assets, properties, business of any Person (whether by merger, purchase sale of stock or stock, sale of assets or otherwise) by the Company or its Subsidiaries pursuant to which the Company or any Company Subsidiary of its Subsidiaries has (x) continuing material indemnification obligations (excluding indemnification obligations in respect of representations and warranties and covenants that survive indefinitely) or (y) any operating business outstanding “earn-out” or equity interests similar contingent payment obligations, in each case, in excess of $5,000,000 (other than any Contract that provides for the acquisition of inventory, raw materials or assets in the ordinary course of business);
(x) any material Contract creating a material Lien (other Person which contain continuing obligations than Permitted Liens) upon any material property or assets of the Company or any Company Subsidiary and which could reasonably require of its Subsidiaries, other than purchase money security interests in connection with the payment acquisition of monies by equipment in the Company or any Company Subsidiary to the applicable sellers thereunderordinary course of business;
(Gxi) each joint venture, partnership or any other material Contract involving providing for a sharing settlement of profits or losses by any Legal Proceeding against the Company or any of the Company its Subsidiaries by or before any Governmental Body, other than (A) releases immaterial in nature or amount entered into with any other Person;
(H) each Contract with any director, officer, member, employee former employees or Affiliate current or former independent contractors of the Company or any of the Company Subsidiaries; and
Company’s Subsidiaries in the ordinary course of business, (IB) settlement agreements for cash or the Loan Agreements and each other indenture, mortgage, promissory note provision of products or other agreement services only (which have been paid or commitment for provided) that do not exceed $5,000,000 individually as to any such settlement or (C) settlement agreements entered into more than three (3) year prior to the borrowing date of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity this Agreement under which none of the Company or any of the Company’s Subsidiaries have any continuing material obligations, liabilities or rights (excluding releases);
(xii) any Contract that contains a right of first refusal, first offer or first negotiation with respect to an asset that is material to the Company Subsidiaries and its Subsidiaries, taken as a whole;
(xiii) any Contract containing restrictions with respect to payment of dividends or materially limit any distributions in respect of the freedom equity interests of the Company or any of its Subsidiaries;
(xiv) any material Contract involving, as of the date hereof, outstanding interest rate or foreign currency swaps, commodity swaps, options, caps, collars, h▇▇▇▇▇ or forward exchanges, or other similar agreements;
(xv) any Contract pursuant to which the Company or any of its Subsidiaries licenses in or licenses out material Intellectual Property, but excluding (A) any ordinary course customer agreements, (B) license agreements for generally commercially available “off-the-shelf” Software with an annual cost of less than $2,500,000, and (C) any such Contract that may be cancelled without penalty or payment by the Company or any Subsidiary thereof to engage in any line upon notice of business ninety (90) days or to compete with any Personless; orand
(Bxvi) any Contract that grants would be required to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of be filed by the Company or any Company Subsidiary or any Contract that grants as a “material contract” pursuant to a third party a power Item 601(b)(10) of attorney of Regulation S-K under the Securities Act if the Company or any Company Subsidiarywere subject to the reporting obligations under the Exchange Act.
(ivb) Except as set forth on The Company Disclosure Schedule 3.1(p)(iv), has made available to Parent copies of each Material Contract that are true and complete in all material respects. Each Material Contract (i) is a valid and binding agreement of the Company or the Company Subsidiaryone of its Subsidiaries, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as and (ii) is in full force and effect and, subject to the case may beEnforceability Exceptions, enforceable in accordance with its terms, except where the failure to be in full force and effect and enforceable would not have, individually or in the aggregate, a Material Adverse Effect. The Company or a Subsidiary and, to the extent Knowledge of the Company, each of the other parties thereto, are not in breach of, default or violation under, any of such Material Contract and no event has occurred that the enforcement thereof may with notice or lapse of time, or both, would constitute such a breach, default or violation, except for any such breaches, defaults or violations that would not reasonably be limited by (A) applicable bankruptcyexpected to have, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law individually or in equity)the aggregate, a Material Adverse Effect. Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or of its Subsidiaries has received written notice of any material termination, default or breach (or any event that, that with notice or lapse of time time, or both, would constitute a material default by the Company or breach), any of its Subsidiaries under the terms of any such Material Contract. To , except for such defaults that would not reasonably be expected to have, individually or in the Knowledge of the Companyaggregate, no counterparty to any a Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 1 contract
Material Contracts. (ia) Company Section 4.07(a) of the Disclosure Schedule 3.1(p)(i) contains a list Schedules lists each of all Material the following Contracts (as defined in Section 3.1(p)(iix) belowby which any of the Purchased Assets are bound or affected or (y) to which the Company or any of the Company Subsidiaries each Seller is a party or by which it is bound in connection with the Company Business or the Purchased Assets (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 4.10(a) of the Company Subsidiaries is otherwise bound. A trueDisclosure Schedules and all Intellectual Property Agreements set forth in Section 4.11(b) of the Disclosure Schedules, correct being “Material Contracts”):
(i) all Contracts involving aggregate consideration in excess of $10,000 and complete copy of which, in each Material Contract has been furnished case, cannot be cancelled without penalty or made available to Parent or its representatives.without more than 90 days’ notice;
(ii) Material all Contracts that require Sellers to purchase or sell a stated portion of the Company and requirements or outputs of the Company Subsidiaries (Business or that contain “Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to take or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrompay” provisions;
(Biii) any all Contracts that provide for the construction indemnification of gathering any Person or the assumption of any Tax, environmental or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary Liability of any penaltyPerson;
(Civ) any all Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of obsolete stock, sale of assets or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereofotherwise);
(Ev) any outstanding futuresall broker, swapdistributor, collardealer, putmanufacturer’s representative, callfranchise, flooragency, capsales promotion, optionmarket research, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commoditiesmarketing consulting and advertising Contracts;
(Fvi) any all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to the acquisition trade receivables, all Contracts relating to indebtedness (by mergerincluding, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunderwithout limitation, guarantees);
(Gviii) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries all Contracts with any other PersonGovernmental Authority (“Government Contracts”);
(Hix) each Contract with any director, officer, member, employee all Contracts that limit or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom ability of the Company or any of the Company Subsidiaries thereof Sellers to engage compete in any line of business or to compete with any Person; orPerson or in any geographic area or during any period of time;
(Bx) all joint venture, partnership or similar Contracts;
(xi) all Contracts for the sale of any Contract that grants of the Purchased Assets or for the grant to a third any Person a of any option, right of first refusal, option, refusal or preferential right or similar right to acquire properties or assets purchase any of the Company Purchased Assets;
(xii) all powers of attorney with respect to the Business or any Company Subsidiary Purchased Asset;
(xiii) all collective bargaining agreements or Contracts with any Contract Union; and
(xiv) all other Contracts that grants are material to a third party a power of attorney the Purchased Assets or the operation of the Company or any Company SubsidiaryBusiness and not previously disclosed pursuant to this Section 4.07.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, on Sellers in accordance with its terms and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, andeffect. Neither Sellers nor, to the Sellers’ Knowledge of the Company(Actual), the any other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary party thereto is in breach of or default under (or is alleged to be in breach in any material respectof or default under), or has provided or received written any notice of any material default intention to terminate, any Material Contract. No event or breach (or any event circumstance has occurred that, with notice or lapse of time or both, would constitute a material an event of default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is or result in default a termination thereof or breachwould cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, in any material respect, of such Material Contract. The Company has amendments and supplements thereto and waivers thereunder) have been made available to Parent prior to Buyer. Except as set forth in Section 4.07 of the date hereof a true Disclosure Schedules, there are no material disputes pending or threatened under any Contract included in the Purchased Assets (except for the four (4) Tidewater and correct copy ▇▇▇▇▇▇▇▇ Project contracts listed in Section 2.01(c) of each Material Contractthe Disclosure Schedules, the Tidewater Agreement and the ▇▇▇▇▇▇▇▇ Agreement).
Appears in 1 contract
Sources: Asset Purchase Agreement (Gulf Island Fabrication Inc)
Material Contracts. (a) Except for (i) this Agreement, (ii) Contracts filed as exhibits to the Company SEC Reports or the Leju SEC Reports, as the case may be, that are available to Parent prior to the date hereof, and (iii) Contracts set forth in Section 3.17 of the Company Disclosure Schedule 3.1(p)(i(each Contract of the type described in this Section 3.17(a) contains is referred to herein as a list “Material Contracts”), as of all Material Contracts the date hereof, none of the Company or its Subsidiaries is a party to or bound by any Contract that:
(i) would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) relates to any credit, loan or facility arrangement, guarantee or other security arrangement, or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of any Group Company) in excess of US$20,000,000 (or an equivalent amount in RMB);
(iii) relates to joint venture, strategic cooperation or partnership (including cooperation or long-term agency contracts entered into at the corporate headquarters level with insurance companies), or other agreements involving a sharing of profits, losses, costs or liabilities by any Group Company, in each case, that is material to the business of the Group Companies, taken as defined a whole;
(iv) is material to the business of the Group Companies, taken as a whole, and relates to the purchase or sale of any shares or securities of, or other equity interests in, any Group Company;
(v) limits, or purports to limit, the ability of any Group Company to compete in Section 3.1(p)(iiany line of business or with any Person or in any geographic area or during any period of time, subjects the Company or any of its Subsidiaries to “most favored nation,” “benchmarking” or “price downward adjustment” obligations, or could require the Company or any of its Subsidiaries to transfer any of its assets or operations to a third party;
(vi) belowinvolves any directors, officers or shareholders of the Company holding more than 5% of the share capital of the Company, or any of their respective Affiliates (other than the Group Companies) or immediate family members;
(vii) is material to the business of the Group Companies, taken as a whole, pursuant to which the Company or any of the Company its Subsidiaries is a party licenses in Intellectual Property or licenses out Intellectual Property owned by which the Company or its Subsidiaries (other than license agreements for commercially available software on standard terms); and
(viii) provides for any change of the control or similar payments.
(b) Except as would not have a Material Adverse Effect, (i) each Material Contract is a legal, valid and binding agreement, and no Group Company Subsidiaries is otherwise bound. A truein material breach or violation of, correct and complete copy of each or default under, any Material Contract, (ii) no Material Contract has been canceled by the other party; (iii) to the Company’s knowledge, no other party is in material breach or violation of, or default under, any Material Contract; (iv) no Group Company has received any claim of material default under any such Material Contract and, to the Company’s knowledge, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (v) neither the execution of this Agreement nor the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of any Group Company under any Material Contract. The Company has furnished or made available to Parent or its representatives.
(ii) Material Contracts true and complete copies of the Company and the Company Subsidiaries (“all Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of creditamendments thereto.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 1 contract
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which Except for this Agreement, the Company Benefit Plans, the Company Foreign Plans or any the Contracts filed as exhibits with the Company SEC Documents as of the Company Subsidiaries is a party or by which the Company or any date of this Agreement, as of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii)date hereof, neither the Company nor any of its Subsidiaries is a party toto or have any of their respective properties or assets bound by any Contract that:
(i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) purports to limit in any respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) or any of their respective Affiliates may engage or the manner or geographic area in which any of them may so engage in any business, except for such restrictions that are not material to the Company and its Subsidiaries, taken as a whole;
(iii) that (A) grants any Contract containing covenants exclusive rights or “most favored nation” status to any third party or (B) contains any provision that requires the purchase of all of the Company’s or any of its Subsidiaries’ requirements from a third party, except for such rights and provisions that are not material to the Company and its Subsidiaries, taken as a whole;
(iv) provides for the acquisition or disposition by the Company or any of its Subsidiaries of any assets, business or person (whether by merger, sale of stock, sale of assets or otherwise) with a value in excess of $20 million under which the Company or any way purport of its Subsidiaries has material obligations remaining (other than confidentiality obligations) to restrict be performed as of the date hereof, except for acquisitions or prohibitdispositions of inventory, properties and other assets in the ordinary course of business;
(v) grants any material respect, right of first refusal or right of first offer or similar right or that limits or purports to limit the business activity ability of the Company or any of its Subsidiaries to sell, transfer, pledge, or otherwise dispose of any material amount of its assets or its business, except for such restrictions that are not material to the Company Subsidiaries and its Subsidiaries, taken as a whole;
(vi) relates to any joint venture, partnership, limited liability company or materially limit other similar Contract relating to the freedom formation, creation, operation, management or control of any joint venture or partnership that is material to the business of the Company and its Subsidiaries, taken as a whole;
(vii) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any of its Subsidiaries with an available principal amount (other than indebtedness among the Company and/or any of its Subsidiaries) in excess of $10 million;
(viii) involves performance of services or delivery of products by the Company or any of its Subsidiaries thereof with each of the ten (10) largest customers of the Company and its Subsidiaries, taken as a whole, in each case measured on the basis of the annual recurring revenue calculated as of December 31, 2021 and cannot be cancelled by the Company or its Subsidiaries without penalty or further payment without more than one hundred twenty (120) days’ notice (other than payments for services rendered to engage the date);
(ix) required the payment by the Company or its Subsidiaries in an amount in excess of $5 million in the fiscal year ended December 31, 2021 and cannot be cancelled by the Company or its Subsidiaries without liability, penalty or further payment without more than one hundred twenty (120) days’ notice (other than payments for services rendered to the date);
(x) is a settlement agreement or similar Contract involving any line resolution or settlement since January 1, 2019 of business any actual or to compete threatened Action (x) with any PersonGovernmental Entity, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $2 million, (z) imposed any material ongoing non-monetary obligation or requirements on the Company or any of its Subsidiaries, or (z) included any admissions of liability or responsibility by the Company or any of its Subsidiaries;
(xi) is a Government Contract that involves more than $6 million of annual recurring revenue;
(xii) is a material Contract with respect to any Intellectual Property Rights pursuant to which the Company or any of its Subsidiaries is a licensee or licensor, other than (A) licenses for commercially available software or “off-the-shelf” or “shrink-wrap” licenses with respect to which such Company or Subsidiary is a licensee, (B) or non-exclusive licenses granted in the ordinary course of business, (C) Contracts with current and former employees, contractors or consultants of the Company or its Subsidiaries and (D) nondisclosure agreements; or
(Bxiii) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of commits the Company or any of its Subsidiaries to enter into any Contracts of the types described in the foregoing clauses (i) through (xii). Each Contract of the type described in this Section 3.18 and each Contract required to be filed as an exhibit to the Company SEC Documents or of such type entered into after the date of this Agreement is referred to herein as a “Company Material Contract” (provided, that solely for purposes of Section 5.1(b) hereof, Company Material Contract shall include any Material Real Property Lease with an annual rent of $1 million or more) and has been made available to Parent.
(b) Neither the Company nor any Subsidiary or any Contract that grants to a third party a power of attorney of the Company is in breach of or default under the terms of any Company Subsidiary.
(iv) Material Contract and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a default thereunder, where such breach or default would have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract and, as of the date of this Agreement, no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a default thereunder, where such breach or default would have, individually or in the aggregate, a Company Material Adverse Effect. Except as set forth on would not have, individually or in the aggregate, a Company Disclosure Schedule 3.1(p)(iv)Material Adverse Effect, each Company Material Contract is a valid and binding agreement obligation of the Company or the Subsidiary of the Company Subsidiary, as the case may be, which is party thereto and, to the Knowledge of the Company, the counterparties of each other party thereto, and is in full force and effect and is effect, enforceable against the Company or the applicable Subsidiary of the Company Subsidiary, which is party thereto and, to the Knowledge of the Company, against the other party or parties thereto, as the case may bein each case, in accordance with its terms, except that such enforcement may be subject to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractEnforceability Limitations.
Appears in 1 contract
Sources: Merger Agreement (Zendesk, Inc.)
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i3.13(a) contains sets forth a list listing, as of all Material the date hereof, of the following Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or Company, any of its Subsidiaries, any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; Managed Projects or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, any of the counterparties theretoSpecified Projects is a party or by which any of the Company, any of its Subsidiaries, any of the Managed Projects or, to the Knowledge of the Company, any of the Specified Projects or their respective assets or properties are bound as of the date hereof (collectively, the “Material Contracts”):
(i) Contracts containing covenants of the Company, any of the Subsidiaries, any of the Managed Projects or, to the Knowledge of the Company, any of the Specified Projects not to compete in any line of business or with any Person, entitling a third party to the most favorable price or any other terms for any product or service, or, except as part of any confidentiality agreement or audit engagement agreement entered into in the Ordinary Course of Business, not to hire any person or solicit any person with respect to employment;
(ii) Contracts between a Securityholder or any Affiliate of a Securityholder (other than the Company, any of its Subsidiaries or any of the Underlying Projects) on the one hand and the Company, any of its Subsidiaries or any of the Underlying Projects, on the other hand, other than Contracts that have been disclosed on Schedule 3.14(a); and
(iii) Contracts to which the Company, any of its Subsidiaries, any of the Managed Projects or, to the Knowledge of the Company, any of the Specified Projects is a party or by which any of the Company, any of its Subsidiaries, any of the Managed Projects or, to the Knowledge of the Company, any of the Specified Projects or their respective assets or properties are bound with a term of one year or more or with a value or involving amounts payable or potentially payable at any time during the term thereunder in excess of $250,000, that, in either case, are not terminable by the Company, any of its Subsidiaries or any of the Underlying Projects, without any penalty, payment or forfeiture of amounts previously paid on notice of 60 days or less.
(b) Each of the Material Contracts to which the Company, any of its Subsidiaries or any Managed Project is a party is in full force and effect and is enforceable against the Company or the applicable Company Subsidiarylegal, and, to the Knowledge valid and binding obligation of the Company, its Subsidiary or the Managed Project which is party thereto, and of the other parties thereto, as the case may be, thereto enforceable against each of them in accordance with its terms, except to the extent that the enforcement thereof as may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to equivalent Laws affecting the enforcement of creditors’ rights generally in general and (B) subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), and, upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. Neither Except as otherwise stated in Schedule 3.13(b), none of the Company nor Company, any Company Subsidiary of its Subsidiaries or any of the Managed Projects is in default or breach in any material respect, or has received written notice of any material default or breach (under any Material Contract to which the Company, any of its Subsidiaries or any event thatof the Managed Projects is a party, with notice or lapse of time or bothnor, would constitute a material default or breach), under the terms of any such Material Contract. To to the Knowledge of the Company, no counterparty is any other party to any such Material Contract in material breach of or material default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or material default by the Company, any Subsidiary, any Managed Project or any other party thereunder. No party to any of the Material Contracts to which the Company, any of its Subsidiaries or any of the Managed Projects is a party has exercised any termination rights with respect thereto, and no party has given notice of any significant dispute with respect to any such Material Contract.
(c) Except as otherwise stated in Schedule 3.13(c), to the Knowledge of the Company (i) each of the Material Contracts to which a Specified Project is a party is in full force and effect and is the legal, valid and binding obligation of the Specified Project which is party thereto, and of the other parties thereto enforceable against each of them in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other equivalent Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), and, upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence, (ii) none of the Specified Projects is in material default under any Material Contract to which an Specified Project is a party and no other party to any such Material Contract is in material breach of or material default thereunder, and no event has occurred that with the lapse of time or breachthe giving of notice or both would constitute a material breach or material default by any Specified Project or any other party thereunder, in and (iii) no party to any material respectof the Material Contracts to which any of the Specified Projects is a party has exercised any termination rights with respect thereto, and no party has given notice of any significant dispute with respect to any such Material Contract. .
(d) The Company has made available to Parent prior true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto; provided, that with respect to Material Contracts to which a Specified Project is a party, the foregoing is to the date hereof a true and correct copy Knowledge of each Material Contractthe Company.
Appears in 1 contract
Material Contracts. (a) Section 3.13 of the Seller Disclosure Schedules sets forth a true, correct and complete list, as of the date of this Agreement, of the following Contracts (but excluding all Lease Agreements and Company Employee Plans) by which any of the Company or any of the Company Subsidiaries is bound and under which the Company or any of the Company Subsidiaries has ongoing executory obligations or the ability to enforce rights thereunder (collectively, the “Material Contracts”):
(i) each Contract relating to the Company Disclosure Schedule 3.1(p)(ior any Company Subsidiary required to be filed by Parent as a “Material Contract” pursuant to Item 601(b)(10) contains of Regulation S-K under the Securities Act (other than a list of all Material Contracts Company Employee Plan);
(as defined in Section 3.1(p)(iiii) beloweach Contract (x) to which the Company or any of the Company Subsidiaries is a party that restricts in any respect the ability of the Company or by any of the Company Subsidiaries or any of their respective Affiliates to compete in any business or with any Person in any geographical area or (y) that contains “most-favored nation” or exclusivity obligations or restrictions binding on the Company or any of the Company Subsidiaries;
(iii) each credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to which any Indebtedness of the Company or any of the Company Subsidiaries, in each case in excess of $500,000 is outstanding or may be incurred, other than any such Contract between or among any of Velocity Holdings and its Subsidiaries or between or among any of Bolt Holdings and its Subsidiaries;
(iv) each Contract to which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or a party that by its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts terms calls for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with of more than $500,000 over the remaining term of such Contract, except for (A) Lease Agreements, (B) any such Contract that may be terminated, without any penalty or other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of liability to the Company or any of the Company Subsidiaries; and
Subsidiaries in excess of $500,000, within one year, (IC) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of moneyCompany Employee Plans, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(AD) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity providing for acquisitions and dispositions of properties and assets of the Company or any of the Company Subsidiaries in the ordinary course of business;
(v) each Contract that provides for any stockholders, investors rights, registration rights or materially limit the freedom of similar agreements or arrangements;
(vi) each Contract pursuant to which the Company or any of the Company Subsidiaries thereof to engage has continuing “earn-out” or similar obligations that could result in any line payments in excess of business or to compete with any Person; or$500,000 in the aggregate;
(Bvii) each Contract requiring any capital commitment or capital expenditure (or series of capital expenditures) by the Company and the Company Subsidiaries in an amount in excess of $500,000;
(viii) each Contract that grants entered into within three (3) years of the date of this Agreement, to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of which the Company or any of the Company Subsidiary Subsidiaries is a party for the acquisition or any Contract that grants to a third party a power of attorney of disposition by the Company or any of the Company SubsidiarySubsidiaries of properties or assets for, in each case, aggregate consideration of more than $1,000,000; and
(ix) each Contract to which the Company or any of the Company Subsidiaries is a party constituting a joint venture, partnership, limited liability or other similar agreement (excluding licensing Contracts) relating to the formation, creation, operation, management or control of any partnership or material joint venture.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)Parent and Seller have Made Available to Buyer true, correct and complete copies of each Material Contract. Each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is a valid and binding agreement enforceable against the Company or any of the applicable Company Subsidiary, Subsidiaries party thereto and, to the Knowledge of the CompanySeller’s Knowledge, the each other parties party thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof as such enforceability may be limited by (A) applicable bankruptcythe Bankruptcy and Equity Exceptions, insolvencyand except as has not had and would not reasonably be expected to have, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law individually or in equity)the aggregate, a Company Material Adverse Effect. None of the Company nor any of the Company Subsidiaries party to, nor, to Seller’s Knowledge, any other party to, any Material Contract is in breach of or default under, any Material Contract, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default termination or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms cancellation of any such Material Contract. To the Knowledge of the Company, and to Seller’s Knowledge, no counterparty party to any Material Contract is in default has provided notice exercising or breach, in threatening exercise of any termination rights with respect thereto or of any material respect, of such Material Contract. The Company has made available dispute with respect to Parent prior to the date hereof a true and correct copy of each any Material Contract.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Actua Corp)
Material Contracts. For all purposes of and under this Agreement, a “Material Contract” of the Company or its Subsidiaries shall mean (except for this Agreement):
(i) any Contract listed as an exhibit to the Company’s annual report on Form 20-F for the year ending December 31, 2017 or that would be required to be filed by the Company as a “material contract” pursuant to Item 19 of Form 20-F;
(ii) any Contract that both requires payments from or to the Company of more than $500,000 during any twelve (12) month period and is not cancelable by the Company or its Subsidiaries without any material financial or other penalty on ninety (90) or fewer days’ notice;
(iii) any Contract that relates to the formation, creation, operation, management or control of any legal partnership or any joint venture entity pursuant to which the Company or its Subsidiaries owns (i) more than 20% voting or (ii) economic interest with a book value of more than $250,000 without regard to percentage voting or economic interest;
(iv) any Contract (other than any Contract whose only parties are the Company and/or its Subsidiaries) relating to Indebtedness for borrowed money owing or guaranteed by the Company or its Subsidiaries, other than any Contract relating to Indebtedness with an outstanding principal amount of less than $500,000 (whether incurred, assumed, guaranteed or secured by any asset);
(v) any Contract under which the Company or its Subsidiaries has made any advance, loan, extension of credit or capital commitment to, or other investment in, any Person (other than the Company or its Subsidiaries and except for any extensions of trade credits in the ordinary course of business in excess of $500,000);
(vi) any Contract (A) that contains a license granted to or by the Company or any of its Subsidiaries in respect of Intellectual Property Rights (except for (1) licenses of unmodified commercially available, off-the-shelf, click-wrap or shrink-wrap software (a) for the Company’s internal business purposes or otherwise not integrated with or embodied in Company Products, with an annual fee, royalty, or other consideration of no more than $250,000, or (b) with an annual fee, royalty, or other consideration of no more than $50,000, (2) non-disclosure or confidentiality agreements on terms consistent with past practice, (3) non-exclusive licenses of Intellectual Property Rights incidental to the sale or purchase by the Company or its Subsidiaries of tangible products or services (excluding Software) in the ordinary course of business, (4) non-exclusive licenses of Intellectual Property Rights granted to customers in the ordinary course of business, or (5) licenses of Open Source Software) or (B) for the development (by or for the Company or any of its Subsidiaries or through a third party), escrow of any Company Source Code (excluding customer agreements which include escrow placement obligations entered into by the Company or its Subsidiaries with customers in the ordinary course of business), or the acquisition of any Intellectual Property Rights that, individually or in the aggregate, are material to the business of the Company or any of its Subsidiaries, taken as a whole;
(vii) any Contract to which the Company is a party that contains (A) any continuing covenant by the Company to not compete or engage in any line of business or to not engage in its business in any geographic location, or (B) “most favored nation,” “exclusivity” or similar provisions, in each case other than such Contracts that (x) may be cancelled without material Liability to the Company or its Subsidiaries upon notice of ninety (90) days or less or (y) are not, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole;
(viii) any Contract that is a settlement of Legal Proceedings or similar agreement that imposes obligations on the Company or any of the Company Subsidiaries after the date of this Agreement, which obligations are material to the Company and the Company Subsidiaries taken as a whole;
(ix) any collective bargaining agreement or other Contract with any labor or trade union, works council or other labor organization;
(x) any Contract with a Major Customer or Major Vendor;
(xi) any Contract relating to an acquisition, divestiture, merger or similar transaction (A) that has continuing “earn-out” or other contingent payment obligations on the Company or any of its Subsidiaries or (B) that was entered into in the past three (3) years and involves consideration in excess of $5,000,000; and
(xii) any material Contract between the Company or any Company Subsidiary, on the one hand, and, on the other hand, any present executive officer or director of either the Company or any of the Company Subsidiaries (other than agreements for the award of Company Options or Company RSUs under the Company Share Plans).
(b) Section 3.10(b) of the Company Disclosure Schedule 3.1(p)(i) Letter contains a list of all Material Contracts (as defined in Section 3.1(p)(iiother than any Material Contract contemplated by clause (i) belowof the definition thereof) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity as of the Company or any date of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiarythis Agreement.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Attunity LTD)
Material Contracts. (a) Set forth on Section 4.12(a) of the Seller Disclosure Schedule are all of the following Contracts (with remaining rights or obligations) either entered into by the Company or entered into by the Seller primarily for the benefit of the Business (collectively, together with the Contracts set forth in Section 4.11(j)(i) and (ii) of the Seller Disclosure Schedule, the “Material Contracts”):
(i) Company Disclosure Schedule 3.1(p)(iany Contracts with directors and officers (not related to equity compensation or employment) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or which involve any advance or loan to any of the Company Subsidiaries is a party Company’s directors or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.officers;
(ii) Material Contracts employment, severance, change of the Company control, retention, bonus, commission, indemnification and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts similar agreements with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefromBusiness Employee;
(Biii) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penaltycollective bargaining agreements;
(Civ) any leases or subleases, either as lessee or sublessee, lessor or sublessor, of real property, personal property or intangibles, where the lease or sublease provides for an annual rate in excess of $100,000;
(v) Contracts (not described in clause (A) with customers or (B) above) which would be reasonably expected to involve payments to suppliers that require the receipt of, or from expenditure by, the Company or a Company Subsidiary of more than $1,000,000 or more in any twelve 100,000 since September 30, 2006 (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations excluding purchase orders entered into in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereofBusiness);
(Evi) any outstanding futuresother Contracts which provide for the receipt or expenditure of more than $100,000 since September 30, swap2006, collar, put, call, floor, cap, option, hedging, forward except Contracts for the purchase or sale of goods or other derivative Contracts involving hydrocarbons or other commoditiesservices by the Company in the Ordinary Course of Business;
(Fvii) Contracts restricting in any Contracts relating manner the Company’s right to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of compete with any other Person which contain continuing obligations of Person, or restricting the Company Company’s right to sell to or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with purchase from any other Person;
(Hviii) each any Contract with of which the Seller has knowledge to which any directoremployee, officer, member, employee consultant or Affiliate independent contractor of the Company or the Business is bound that in any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
manner purports to (A) any Contract containing covenants that in any way purport to restrict such employee’s consultant’s or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the independent contractor’s freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete activity consistent with any Person; or
the Business, or (B) assign to any other Person such employee’s consultant’s or independent contractor’s right to any Company Intellectual Property;
(ix) Contracts for the purchase or sale of assets or for any merger, acquisition or disposition of a business, in each case outside of the Ordinary Course of Business;
(x) any joint venture, partnership or similar type Contract involving a sharing of profits, losses, costs or liabilities by the Company with any other Person;
(xi) loan or credit agreements, pledge agreements, notes, security agreements, mortgages, debentures, indentures, factoring agreements or letters of credit;
(xii) Contracts of agency, representation, distribution, or franchise that cannot be cancelled by the Company without payment or penalty upon notice of 30 days or less;
(xiii) guaranties, performance, bid or completion bonds, or surety agreements not made in the Ordinary Course of Business; and
(xiv) any other Contract that grants the Seller believes is material to a third Person a right of first refusal, option, preferential right the Business or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company SubsidiaryCompany.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)The Seller has made available to the Purchaser true and complete copies of all of the Material Contracts. With respect to the Material Contracts, (i) each Material Contract is a valid valid, binding and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to ; (ii) the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter Company is not in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law material default under or in equity). Neither material violation of any provision of any of the Material Contracts; (iii) neither the Company nor the Seller has received notice of alleged nonperformance or other noncompliance with respect to its obligations under any Company Subsidiary of the Material Contracts, which alleged nonperformance or other noncompliance is currently unresolved, nor any notice that is currently unresolved that any of the Material Contracts may be totally or partially terminated or suspended by any other party thereto; and (iv) to the Seller’s knowledge, no other party to any Material Contract is in default breach or breach in any material respect, or has received written notice of any material default or breach (or any event that, noncompliance with notice or lapse of time or both, would constitute a material default or breach), its obligations under the terms of any such Material Contract. To the Knowledge Seller’s knowledge, there are no pending renegotiations of any of the Company, no counterparty Material Contracts and all new Contracts which are being actively negotiated and which would be required to any Material Contract is in default or breach, in any material respect, be listed on Section 4.12(a) of such Material Contract. The Company has made available to Parent prior to the date hereof a true Seller Disclosure Schedule are so listed and correct copy of each Material Contractindicated as “pending.”
Appears in 1 contract
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any As of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A truedate hereof, correct except for this Agreement and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which except as would not reasonably be reasonably expected to involve payments to or from the Company or have a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary Material Adverse Effect on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:to or bound by any contract, agreement or arrangement of the type set forth in the subsection (i) through (xi) of Section 4.18(a) (each, a “Material Contract”):
(Ai) each contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the 1934 Act;
(ii) each contract (excluding any Contract containing covenants Company employee agreement or Company employee plan) which is likely to involve consideration of more than RMB 5,000,000, in the aggregate, over the remaining term of such contract;
(iii) except in relation to transactions between or among any of the Company and any Subsidiary, all contracts relating to any credit, loan or facility arrangement, guarantee or other security arrangement, or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any of its Subsidiaries);
(iv) all joint venture contracts, strategic cooperation or partnership arrangements, or other agreements involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with a contractual value of more than RMB 3,000,000;
(v) all contracts that (x) provide the Company with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a majority of the equity interests (each, an “Operating Subsidiary”), (y) provide the Company or any Subsidiary of the Company a right or an option to purchase the equity interests in any way purport Operating Subsidiary, or (z) transfer economic benefits from any Operating Subsidiary to restrict any other Subsidiary of the Company;
(vi) all contracts relating to the purchase or prohibitsale of any shares or securities of, or other equity interests in, the Company or any of its Subsidiaries (other than a Company Equity Award or otherwise pursuant to the Company Incentive Plan);
(vii) all contracts that limit, in any material respect, the business activity ability of the Company or any of the Company its Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage compete in any line of business or to compete with any Person; orperson or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(Bviii) all contracts involving any Contract that grants to directors, officers or shareholders of the Company holding more than 5% of the outstanding share capital of the Company, or any of their respective Affiliates (other than the Subsidiaries) or immediate family members with a third Person contractual value of more than RMB 500,000;
(ix) all franchising, licensing or management contracts (other than non-disclosure agreements entered into in the ordinary course of business on standard terms consistent with past practice) with a right contractual upfront fee of first refusal, option, preferential right more than RMB 500,000;
(x) all contracts providing for any change of control or similar right payments upon the consummation of any Transaction; and
(xi) all other contracts, whether or not made in the ordinary course of business, which are material to acquire properties or assets of the Company or any Company Subsidiary of its Subsidiaries or any Contract that grants to the conduct of its business, or the absence of which would have a third party a power of attorney of the Company or any Company SubsidiaryMaterial Adverse Effect.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)would not reasonably be expected to have a Material Adverse Effect and to the knowledge of the Company, (i) each of the Material Contract Contracts is a legal, valid and binding agreement of the Company or the a Company Subsidiary, as the case may beapplicable, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable a Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, Subsidiary in accordance with its it terms, except subject to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, fraudulent conveyance or other moratorium and similar laws now or hereafter in effect Laws of general applicability relating to or affecting creditors’ rights generally and to general equity principles, and (Bii) general principles neither the Company nor any of equity (regardless its Subsidiaries, nor to the Company’s knowledge any other party to a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of whether enforceability time, or both, would constitute a default under the provisions of such Material Contract, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Material Contract or intends to terminate any Material Contract, or is considered in a proceeding at law seeking the renegotiation thereof or in equity)substitute performance thereunder. Neither the Company nor any Company Subsidiary of its Subsidiaries is in default party to any contract, agreement, arrangement or breach understanding containing any provision or covenant limiting in any material respectrespect the ability of the Company or any of its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Company or has received written notice any of their respective Subsidiaries) to (iii) sell any products or services of or to any other Person or in any geographic region, (iv) engage in any line of business or (v) compete with or to obtain products or services from any Person or limiting the ability of any material default Person to provide products or breach (services to the Company or any event thatof its Subsidiaries (or, with notice or lapse of time or both, would constitute a material default or breach), under after the terms of any such Material Contract. To the Knowledge consummation of the CompanyMerger, no counterparty to Parent, the Surviving Company or any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contracttheir respective Subsidiaries).
Appears in 1 contract
Material Contracts. (a) Subsections (i) through (xi) of Section 3.15(a) of the Company Disclosure Schedule 3.1(p)(i) contains a list the following types of all Material Contracts (as defined in Section 3.1(p)(ii) below) Contracts, arrangements or understandings to which the Company or any Subsidiary is a party (such Contracts as are required to be set forth in Section 3.15(a) of the Company Subsidiaries is a party or by which Disclosure Schedule being the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period), pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations none of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party toto or bound by any Material Contracts not listed in Section 3.15(a) of the Company Disclosure Schedule:
(Ai) each Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) each Contract which is likely to involve consideration of more than US$1,000,000, in the aggregate, over the remaining term of such Contract;
(iii) all Contracts relating to any Contract containing covenants credit, loan or facility arrangement, guarantee or other security arrangement, or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Subsidiary) of more than US$1,000,000;
(iv) all joint venture contracts, strategic cooperation or partnership arrangements (including cooperation or long-term agency contracts entered into at the corporate headquarters level with insurance companies) which are material to the business of the Company and its Subsidiaries, taken as a whole, or other agreements involving a sharing of profits, losses, costs or liabilities by the Company or any Subsidiary with any third party;
(v) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Subsidiary other than Contracts relating to Company Options;
(vi) all Contracts that in any way limit, or purport to restrict or prohibitlimit, in any material respect, the business activity ability of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof Subsidiary to engage compete in any line of business or to compete with any Personperson or entity or in any geographic area or during any period of time; orand
(Bvii) all Contracts involving any directors, officers or shareholders of the Company holding more than five percent (5%) of the share capital of the Company, or any of their respective affiliates (other than the Company or any Subsidiary) or immediate family members.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding agreement, and none of the Material Contracts is in material default by its terms or has been canceled by the other party; (ii) to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Subsidiaries have not received any claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that grants could give rise to any claim of material default under any Material Contract; and (iv) neither the execution of this Agreement nor the consummation of any Transaction shall constitute a third Person a right default under, give rise to cancellation rights under, or otherwise adversely affect any of first refusal, option, preferential right or similar right to acquire properties or assets the material rights of the Company or any Company Subsidiary or under any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has furnished or made available to Parent prior to the date hereof a true and correct copy complete copies of each all Material ContractContracts, including any amendments thereto.
Appears in 1 contract
Material Contracts. (ia) Section 4.16(a) of the Disclosure Letter lists as of the date hereof, and (except for such contracts, agreements, commitments, arrangements, leases and other instruments filed as an exhibit to any Existing Company Disclosure Schedule 3.1(p)(iSEC Report (including items incorporated into such Existing Company SEC Report by reference to an earlier filing) contains a list of the Company has made available to Parent and Purchaser true, correct and complete copies of, all Material Contracts contracts, agreements, commitments, arrangements, leases (as defined in Section 3.1(p)(iiincluding with respect to personal property) below) and other instruments to which the Company or any of the Company its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound which:
(i) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K or that if terminated or subject to a default by any party thereto would reasonably be expected to have a Material Adverse Effect;
(ii) contains covenants that materially limit the ability of the Company or any of its Subsidiaries (or which by their terms, following the consummation of the Offer or the Merger, would materially restrict the ability of the Company or the Surviving Corporation, as the case may be) (A) to compete in any business or with any Person or in any geographic area or to sell, supply or distribute any service or product or contains any exclusivity or “most favored nation” or similar obligations or restrictions, or (B) to purchase or acquire an interest in any other entity, except, in each case, for any such contract that may be canceled without any material penalty or other material liability to the Company or any of its Subsidiaries is otherwise bound. A true, correct and complete copy upon notice of each Material Contract has been furnished 60 days or made available to Parent or its representatives.less;
(iiiii) Material Contracts provide for or govern the formation, creation, operation, management or control of any partnership or joint venture, that is material to the business of the Company and the Company Subsidiaries, taken as a whole;
(iv) involve 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;
(v) other than solely among wholly owned Subsidiaries (“Material Contracts”) shall include:
of the Company, relates to (A) any Contracts indebtedness for borrowed money and having an outstanding principal amount in excess of $3,000,000 or (B) conditional sale arrangements, the sale, securitization or servicing of loans or loan portfolios, in each case in connection with third parties which would be reasonably expected to the aggregate actual or contingent obligations of the Company and its Subsidiaries under such contract are greater than $3,000,000;
(vi) was entered into after December 31, 2005 or has not yet been consummated, and involve the acquisition or disposition, directly or indirectly (by merger or otherwise), of a business or capital stock or other equity interests of another Person;
(vii) by its terms calls for aggregate payments to by the Company and its Subsidiaries or from for the Company or a Company Subsidiary any of its Subsidiaries under such contract of more than $1,000,000 or more 3,000,000 in any twelve one year, other than contracts made in the ordinary course of business consistent with past practice;
(12viii) month periodwith respect to any acquisition, pursuant to which the Company or a Company Subsidiary gathersany of its Subsidiaries has (x) any continuing indemnification obligations that would reasonably be expected to result in payments in excess of $3,000,000, processes, treats, transports, stores, sells or purchases hydrocarbons (y) any “earn-out” or the products therefromother contingent payment obligations that could result in payments in excess of $3,000,000;
(Bix) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts with a Governmental Entity and that are reasonably expected is material to require aggregate payments of less than $2,500,000 or are terminable by the Company and its Subsidiaries, taken as a whole; or
(x) entered into between any directors or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by executive officers of the Company (or to the knowledge of the Company, any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) their Affiliates or (B) above) which would be reasonably expected to involve payments to or from Associates), on the one hand, and the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in , on the Ordinary Course of Business and Contracts other hand that are terminable cannot be cancelled by the Company (or a Company the applicable Subsidiary on sixty (60of the Company) within 30 days’ notice without liability, penalty or less without payment by premium; Each contract of the type described in clauses (i) through (x) is referred to herein as a “Material Contract”.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each Material Contract (i) is valid and binding on the Company or any Company and/or the applicable Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary which is a party thereto and, to the knowledge of the Company, each other party thereto, (ii) is in full force and which could reasonably require the payment of monies by effect, and (iii) the Company and its Subsidiaries have performed and complied with all obligations required to be performed or complied with by them under each Material Contract. There is no default under any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Material Contract involving a sharing of profits or losses by the Company or any of its Subsidiaries or, to the Company Subsidiaries with knowledge of the Company, by any other Person;
(H) each Contract party, and no event has occurred that with any director, officer, member, employee the lapse of time or Affiliate the giving of notice or both would constitute a default thereunder by the Company or any of the Company its Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge knowledge of the Company, the counterparties theretoby any other party, except for such defaults and events that have not had, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiarywould not, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law individually or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respectaggregate, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute reasonably be expected to have a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 1 contract
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains a list All of all Material the following Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company its Subsidiaries is a party or by which any of them or their respective assets or properties are bound are set forth in Section 4.11 of the Disclosure Schedule by reference to the applicable subsection below (such Contracts listed or required to be listed in Section 4.11 of the Disclosure Schedule, collectively, the “Material Contracts”):
(a) any Contract or series of related Contracts with the same counterparty or its Affiliates that requires aggregate future expenditures by the Company or any of the Company its Subsidiaries in excess of $100,000 or any Contract that is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available material to Parent or its representatives.
(ii) Material Contracts the business of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefromCompany;
(Bb) any Contracts for the construction of gathering distributor, reseller, sales representative or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts similar Contract under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party its Subsidiaries does not have the right to terminate without penalty on less than ninety (including any Company Member Interest Holder or Affiliate thereof)90) days’ notice;
(Ec) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale Contract with (i) a Material Customer or other derivative Contracts involving hydrocarbons or other commodities(ii) a Material Supplier;
(Fd) any Contracts relating to Contract for the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary sale of any operating business commodity, product (for purposes of clarity this does include service offerings under customer contracts), material, supplies, equipment or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate personal property of the Company or any of its Subsidiaries (other than equipment purchased for resale) for a sale price in excess of $100,000;
(e) any Contract required to be disclosed in Section 4.24 of the Disclosure Schedule;
(f) any Contract for the employment of, or receipt of any services from, (i) any director or officer of the Company Subsidiaries; andor its Subsidiaries or (ii) any other individual Person on a full-time, part-time, consulting or other basis providing for aggregate annual compensation in excess of $200,000;
(Ig) the Loan Agreements and each other indentureContracts providing for severance, mortgageretention, promissory note change in control or other agreement similar payments; any “success fees” or commitment bonuses, or severance payments payable to employees of the Company or any of its Subsidiaries (excluding any bonuses payable to any employee based on the performance of such employee or the performance of the Company or any of its Subsidiaries);
(h) any Contract with any Governmental Body;
(i) each (i) Real Property Lease and (ii) Personal Property Lease;
(j) any Contract relating to the incurrence or guarantee of Indebtedness or creating a Lien (other than Permitted Liens) upon any property or assets of the Company or any of its Subsidiaries;
(k) any Contract for the borrowing disposition of moneyany of the Company’s or any of its Subsidiaries’ assets or business (whether by merger, sale of stock, sale of assets or otherwise);
(l) any Contract for the acquisition or disposition of any business, business unit or product line or capital stock of another Person (whether by merger, sale of stock, sale of assets or otherwise) (including, for the avoidance of doubt, Contracts containing continuing indemnification or contingent payment obligations);
(m) any Contract concerning a partnership, joint venture, joint development or other similar arrangement with one or more Persons;
(n) any hedging, futures, options or other derivative Contract;
(o) any Contract with a customer of the Company or any of its Subsidiaries that deviates (other than with respect to prices, payment amounts or delivery schedules) in any material respect from the Company’s standard form of customer Contract Made Available to Parent;
(p) any Contract under which the Company or any of its Subsidiaries has agreed not to bring legal action against any third party for any reason or any Contract otherwise settling any Proceeding involving the Company or its Subsidiaries;
(q) any Contract that grants or obtains, or for a line under which the Company or any of credit.its Subsidiaries agrees to grant or obtain, rights to use or register IP or IP Rights, excluding ordinary-course licenses to off-the-shelf Software;
(r) any Contract under which the Company is restricted from carrying on any business or other services or competing with any Person anywhere in the world, or restricted from soliciting or hiring any Person with respect to employment, or which would so restrict the Company or any of its Subsidiaries, Parent or any successor in interest thereof after the Closing Date;
(s) any Contract that (i) contains any “most favored nation” or similar provision (including the provision of exclusive, first or concurrent access to certain product features), (ii) grants any Person an exclusive license, supply rights, distribution rights, or other rights in connection with any Company Product (including underlying Software and/or technology), (iii) Except as set forth on Company contains minimum purchase requirements, or (iv) grants any Person rights of first refusal, rights of first negotiation, or similar rights; or
(t) any other Contract to the extent not otherwise disclosed in Section 4.11 of the Disclosure Schedule 3.1(p)(iii)that is material to the Company or its Subsidiaries. Each Material Contract is in full force and effect, neither and is the legal, valid and binding obligation of the Company or any of its Subsidiaries which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, except as enforceability may be affected by the Enforceability Exceptions. Neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto andnor, to the Knowledge knowledge of the Company, the counterparties thereto, and any other party thereto is in full force and effect and is enforceable against the Company or the applicable Company Subsidiaryviolation, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice under the terms of any material default or breach (or any event of the Material Contracts and no condition exists that, with notice or lapse of time or both, would constitute such a material default or breach)violation, under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in except for breaches that have not be and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. The consummation of the transactions contemplated by this Agreement will not give rise to any material respect, default or breach of such a Material Contract. The Company No party to any of the Material Contracts has made available exercised any termination rights with respect thereto, and no party has given notice of any significant dispute with respect to any of the Material Contracts. True, complete and correct copies of each of the Material Contracts have been Made Available to Parent prior to the date hereof hereof, together with all amendments, modifications or supplements thereto. With respect to each Material Contract set forth on Section 4.11(p) of the Disclosure Schedule, there is no fact or circumstance that would reasonably be expected to give rise to a true and correct copy of each claim against the Company by any counterparty to such Material Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ooma Inc)
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains a list All of all Material the following Contracts (as defined in Section 3.1(p)(ii) below) to which the any Group Company or any of the Company Subsidiaries is a party or by which the any Group Company or its assets is bound is a “Material Contract” for all purposes hereunder, in each case determined solely by reference to the “Materiality Threshold” applicable thereto, if any, and without regard to any “Scheduling Threshold”:
(i) all Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of the Company Subsidiaries is otherwise bound. A true, correct and complete copy capital stock or other equity interests of each Material Contract has been furnished or made available to Parent or its representatives.any Group Company;
(ii) Material all Contracts relating to capital expenditures or purchases of assets or properties (other than purchase orders for such items in the ordinary course of business) in each case requiring aggregate payments by any of the Company Group Companies in excess of a Materiality Threshold of $1,000,000 (or, solely for purposes of Schedule 3.8, a Scheduling Threshold of $5,000,000) during their remaining term following the Closing Date;
(iii) all Contracts involving indebtedness of any of the Group Companies in excess of a Materiality Threshold of $1,000,000 (or, solely for purposes of Schedule 3.8, a Scheduling Threshold of $5,000,000) individually that would, if remaining outstanding on the Closing Date, be Closing Indebtedness hereunder;
(iv) any management, service, consulting, financial advisory or any other similar type of Contract and any Contracts with any investment or commercial bank, in each case involving aggregate payments or obligations by any of the Company Subsidiaries (“Material Contracts”) shall include:
Group Companies in excess of (A) any Contracts with third parties which would be reasonably expected to involve payments to a Materiality Threshold of either (x) $750,000 annually that are not cancelable without penalty or from further payment and without more than ninety (90) days notice, or (y) $1,000,000 during their remaining term following the Company Closing Date or (B) solely for purposes of Schedule 3.8, a Company Subsidiary Scheduling Threshold of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom2,000,000;
(Bv) all Contracts involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which has not been fully performed, satisfied and discharged, in each case providing for aggregate payments under each such Contract by or to any Group Company in excess of $750,000 during their remaining term following the Closing Date, other than any such Contracts concerning the routine collection of debts entered into in the ordinary course of business;
(vi) all guarantees of third party obligations by any Group Company;
(vii) any Contracts for the construction lease of gathering personal property to or other pipeline systems or processingfrom any person providing for lease payments in excess of a Materiality Threshold of $1,000,000 per annum or, compressionsolely for purposes of Schedule 3.8, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments a Scheduling Threshold of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty2,000,000 per annum;
(Cviii) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penaltyall Employee Agreements;
(Dix) any all Contracts under which not yet performed as of the Company date hereof providing for a merger or any Company Subsidiary assumed consolidation or guaranteed any outstanding Debt acquisition of, or sale of all or a third party material (including any Company Member Interest Holder or Affiliate thereof);
(Eto the Group Companies, taken as a whole) any outstanding futuresportion of the assets of, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons extraordinary transaction in respect of, any Group Company with or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(Hx) each Contract all Contracts in respect of joint ventures, strategic alliances, partnerships, limited liability companies, agreements among equity holders, voting arrangements or other similar co-ownership or joint management agreements involving a sharing of profits, losses, costs or liabilities by any Group Company with any directorPerson (other than another Group Company) or relating to the ownership or equity interest of any Group Company in any other Person (other than another Group Company);
(xi) all Contracts pursuant to which any Group Company has an obligation to make an investment in or loan to any Person, officerin each case, member, employee or Affiliate other than in the ordinary course of the Company origination or any loan servicing businesses of the Company Subsidiaries; andGroup Companies;
(Ixii) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment all Contracts that provide for the borrowing indemnification of moneyany Person by any Group Company, or except for Contracts entered into in the ordinary course of business that would not reasonably be expected to involve indemnification claims in an amount material to the business of the Group Companies, taken as a line of credit.whole;
(iiixiii) Except as set forth on all Contracts entered into outside the ordinary course of business not disclosed pursuant to any other clause of this Section 3.8, involving any payments or obligations for the remaining term of such Contracts from and after the Closing in excess of $5,000,000 by any Group Company Disclosure Schedule 3.1(p)(iii), neither which have a remaining stated term in excess of one (1) year or are not terminable by the applicable Group Company nor any of its Subsidiaries is a party to:without penalty or premium within one (1) year from the date hereof;
(Axiv) any Contract containing covenants that in any way purport to restrict or prohibit, limits in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit respect the freedom of the any Group Company or any of the Company Subsidiaries thereof to engage compete in any line of business or to compete with any PersonPerson or in any area or which would otherwise materially limit the freedom of any Group Company after the Closing Date;
(xv) Servicing Agreements;
(xvi) all Contracts between any Group Company, on the one hand, and the Seller, any Affiliate of the Seller (other than the Group Companies), or any of their respective officers, directors or employees or any record or beneficial owners of five percent (5%) or more of the voting securities of Seller or any Affiliate of Seller (other than the Group Companies), on the other hand;
(xvii) all Contracts between any Insurance Subsidiary and American Modern Home Insurance Company, American Bankers Insurance Company of Florida and its Affiliates, and/or Foremost Insurance Company Grand Rapids;
(xviii) any Contract relating to any Intellectual Property Rights material to the operation of the Group Companies’ business, taken as a whole, excluding agreements between Group Companies; or
(Bxix) any outstanding written commitment to enter into any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any type described in subsections (i) through (xviii) of this Section 3.8(a). Schedule 3.8(a) sets forth a true and complete list of each Material Contract that grants to a third party a power of attorney as of the Company or any Company Subsidiarydate hereof, except that, solely for purposes of determining those Material Contracts to list on Schedule 3.8(a) each express “Materiality Threshold” set forth in this Section 3.8(a) shall be disregarded and each express “Scheduling Threshold” shall be applied in its place.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(ivEach Material Contract (other than any Material Contract described in subsection (xv) or (xvii) of Section 3.8(a), each Material or any written commitment to enter into a Contract of the type described in those subsections, that is not material to the loan servicing business or the insurance business, as the case may be, of the Group Companies) is a valid and binding agreement of the Company or the Company Subsidiaryapplicable Group Company, as the case may be, party thereto andand (assuming in each case, to the Knowledge applicable Material Contract has been duly authorized, executed and delivered by each of the Company, the counterparties other parties thereto, and ) is in full force and effect effect, constitutes a legal, valid and is enforceable against the Company or binding obligation of the applicable Group Company Subsidiary, and, to the Knowledge knowledge of the Company, constitutes a legal, valid and binding obligation of the other party or parties thereto, as the case may be, enforceable against such Group Company and each other party thereto in accordance with its terms, except in each case, in all material respects, in each case, other than with respect to the extent that expiration or termination of any Material Contract in accordance with its terms following the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating date of this Agreement and prior to creditors’ rights generally and (B) general principles the Closing. None of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respectGroup Companies are, or has have received written notice of any that it is alleged to be, in material breach or material default and, to the knowledge of the Company, no other party to any of the Material Contracts is in material breach or breach material default (or any and no event that, has occurred which with notice or the lapse of time or both, both would constitute a material default or breachmaterial violation). As of the date hereof, under to the terms of any such Material Contract. To the Knowledge knowledge of the Company, there are no counterparty ongoing renegotiations with respect to any Material Contract is in default or breachContracts, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Walter Investment Management Corp)
Material Contracts. (ia) Section 4.14 of the Company Disclosure Schedule 3.1(p)(i) contains a complete and correct list as of all Material the date hereof of each of the following Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company its Subsidiaries is a party or which bind or affect their respective properties or assets:
(i) Contract between the Company or any of its Subsidiaries and any of the 10 largest licensees customers of the Company and its Subsidiaries (determined on the basis of aggregate ▇▇▇▇▇▇▇▇ by the Company and its Subsidiaries over the four (4) consecutive fiscal quarter periods ended December 28, 2008) (“Major Customers”);
(ii) Contract between the Company or any of its Subsidiaries and any of the 50 largest licensors of Intellectual Property or other suppliers to the Company (determined on the basis of aggregate payments by the Company and its Subsidiaries over the four (4) consecutive fiscal quarter period ended December 28, 2008), for which Contracts for the 20 largest (and not the top 50) and a list of names of the counter party of all 50 are set forth in Section 4.14(a)(ii) of the Company Disclosure Schedule (“Major Suppliers”);
(iii) Contract that contains any provisions restricting the Company or any of its Affiliates or their successors from competing or engaging in any material respect (A) in any line of business or with any Person or in any area or (B) pursuant to which any benefit or right is required to be given or lost as a result of so competing or engaging, or which would have any such effect after the Closing Date;
(iv) Contract that (A) grants any exclusive license or supply or distribution agreement or other exclusive rights, (B) grants any rights of first refusal, rights of first negotiation or similar rights with respect to any product, service or Company IP, (C) contains any provision that requires the purchase of all or a given portion of the Company’s or any of its Subsidiaries’ requirements from a given third party, or any other similar provision, or (D) grants “most favored nation” rights;
(v) lease or sublease (whether of real or personal property) of at least 50,000 square feet to which the Company or any of the Company its Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.party as lessor;
(iivi) Material Contracts Contract relating to indebtedness for borrowed money or the deferred purchase price of property outside of the Company and the Company Subsidiaries ordinary course of business (“Material Contracts”) shall include:in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $1,000,000;
(Avii) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, Contract pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice;
(viii) Contract under which the Company or any of its Subsidiaries has, directly or indirectly, any obligations or potential obligations to make a capital contribution to:, or other investment in, any Person (other than the Company or any of its Subsidiaries and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business);
(ix) Contract under which the Company or any of its Subsidiaries has any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) for consideration in excess of $1,000,000;
(x) any Contract (i) (A) between the Company or any of its Subsidiaries and any Governmental Authority, or (B) between the Company or any of its Subsidiaries, as a subcontractor and any prime contractor to any Governmental Authority, or (ii) to the Knowledge of the Company, financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurement;
(xi) joint venture or other similar Contract containing covenants that in any way purport or arrangement material to restrict or prohibitthe Company and its Subsidiaries, in any material respect, taken as a whole;
(xii) Contract for the business activity development for the benefit of the Company or any of its Subsidiaries by any party other than the Company or its Subsidiaries, of Intellectual Property that is material to the Company and its Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice;
(xiii) employee collective bargaining agreement or other Contract with any labor union;
(xiv) Contract entered into in the last three (3) years in connection with the settlement or other resolution of any Proceeding that has any continuing material obligations, liabilities or restrictions;
(xv) Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the Company, any of its Subsidiaries or materially limit the freedom any predecessor Person other than indemnification obligations of the Company or any of its Subsidiaries pursuant to the provisions of a Contract entered into by the Company or any of its Subsidiaries thereof in the ordinary course of business consistent with past practice or that would not reasonably be expected to engage have a Company Material Adverse Effect;
(xvi) Contract containing (i) any provisions having the effect of providing that the consummation of the Merger or the other transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement will conflict with, result in any line violation or breach of, or constitute a default (with or without notice or lapse of business time or both) under, such Contract (if such Contract is material to the Company and its Subsidiaries, taken as a whole), or give rise under such Contract to any right of, or result in, a termination, right of first refusal, amendment, revocation, cancellation or acceleration, or a loss of a benefit or the creation of any Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to compete any increased, guaranteed, accelerated or additional rights or entitlements of any person, except to the extent such termination, amendment, revocation, cancellation, acceleration, loss, Lien or entitlements are not material to the Company and its Subsidiaries, taken as a whole, or are required by Applicable Law, (ii) any restriction on the ability of any of the Company and its Subsidiaries to assign all or any portion of its rights, interests or obligations thereunder (if such Contract is material to the Company and its Subsidiaries, taken as a whole), unless such restriction expressly excludes any assignment to Parent and any of its Subsidiaries that holds assets substantially equivalent to the assigning entity in connection with or following the consummation of the Merger and the other transactions contemplated by this Agreement or (iii) any standstill or similar provision purporting to limit the authority of any party to such agreement to acquire any Equity Interest in the Company or any other Person; or
(Bxvii) any except for the Contracts disclosed above, each Contract that grants required to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of be filed by the Company pursuant to Item 601 of Regulation S-K under the Securities Act, or any that is otherwise material to Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiaryand its Subsidiaries, taken as whole.
(ivb) Except as set forth on Each Contract to which the Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a party (unless it has terminated or expired (in each case according to its terms)) is in full force and effect and is a legal, valid and binding agreement of the Company or the Company its Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, of each other party thereto, enforceable against the other parties theretoCompany or such Subsidiary, as the case may be, and, to the Knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms, terms except to the extent that the enforcement thereof as such enforceability may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or moratorium and other similar laws now or hereafter in effect relating to Applicable Law affecting creditors’ rights generally and (B) by general principles of equity (regardless of whether enforceability is considered in equity, except as would not reasonably be expected to have a proceeding at law or in equity)Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any notice to terminate, in whole or part, materially amend or not renew any executory obligation of a counterparty to any contract that has not terminated or expired (in each case according to its terms) prior to the date of this Agreement (nor has there been anything that a reasonable person would consider an indication that any such notice of termination will be served on or after the date of this Agreement on the Company Subsidiary by any counterparty to a contract) except as would not reasonably be expected to have a Company Material Adverse Effect. None of the Company, any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto is in default or breach in any material respect, or has received written notice respect under the terms of any material default contract, except as would not reasonably be expected to have a Company Material Adverse Effect and, to the Knowledge of the Company, no event or breach (or any event circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default thereunder, except as would not reasonably be expected to have a material default or breach), under the terms Company Material Adverse Effect.
(c) Complete and correct copies of any such Material Contract. To the Knowledge each Contract disclosed in Section 4.14(a) of the CompanyCompany Disclosure Schedule, no counterparty to any Material Contract is in default or breachas amended and supplemented, in any material respect, of such Material Contract. The Company has have been made available by the Company to Parent prior Parent, or otherwise made available in the Company SEC Documents, by the Company to the date hereof a true and correct copy of each Material ContractParent.
Appears in 1 contract
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (Except for this Agreement, as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any date of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii)this Agreement, neither the Company nor any of its Subsidiaries is a party toto or bound by:
(Ai) any Contract containing covenants that would be required to be filed by the Company as a “material contract” under Item 601(b)(10) of regulation S-K under the Securities Act;
(ii) any Contract (other than solely among direct or indirect wholly owned Subsidiaries of the Company) relating to Indebtedness in a principal amount that exceeds of $750,000;
(iii) any way purport Company Labor Agreement;
(iv) any Contract with a Governmental Entity that is a settlement, conciliation, or similar agreement or that imposes any material monetary or other material obligation upon the Company or its Subsidiaries after the date of this Agreement;
(v) any Contract with a Material Customer or Material Supplier that (A) purports to restrict or prohibit, limit in any material respectrespect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (B) could require the disposition of any material assets or line of business activity of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries, (C) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries or (D) prohibits or limits the rights of the Company or any of its Subsidiaries to make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets;
(vi) any Contract that materially affects the use or enforcement by the Company or its Subsidiaries of any material Intellectual Property Rights owned by the Company or materially limit its Subsidiaries (including such settlement agreements, covenants not to assert, and consents to use), excluding any Contracts that are non-exclusive to the freedom Company and entered into in the Ordinary Course;
(vii) any Contract with any Material Customer or Material Supplier;
(viii) any Contract that obligates the Company or any of its Subsidiaries to make any future capital commitment or capital expenditures in excess of $2,000,000;
(ix) any Contract to which any of the Company’s or its Subsidiaries’ directors or officers are a party (other than Company Benefit Plans);
(x) any Contract that relates to the formation, creation, governance or control of, or the economic rights or obligations of the Company or any of the Company its Subsidiaries thereof to engage in in, any line of business joint venture, limited liability company, partnership or to compete with any Person; orother similar arrangement;
(Bxi) any Contract entered into in the last three (3) years that grants relates to a third Person a right the acquisition or disposition of first refusalany business, optionassets or properties (whether by merger, preferential right sale of stock, sale of assets or similar right otherwise) (a) pursuant to acquire properties which any earn-out or deferred or contingent payment obligations remain outstanding, (b) relating to the disposition or acquisition of assets of by the Company or any of its Subsidiaries with a value greater than $5,000,000 other than the disposition of assets in the Ordinary Course, (c) pursuant to which the Company Subsidiary or any of its Subsidiaries acquired or will acquire any material ownership interest in any other Person or other business enterprise other than any Subsidiary of the Company, or (d) pursuant to which a claim for indemnification may still be made against the Company or any of its Subsidiaries;
(xii) any Contract with a Governmental Entity under which the Company or any of its Subsidiaries received payments in excess of $2,000,000 during the 12-month period ending March 30, 2020, other than non-exclusive licenses to customers in the Ordinary Course;
(xiii) any Contract outside the Ordinary Course that would reasonably be expected to involve payments by or to the Company or any of its Subsidiaries of $2,000,000 or more per any twelve month period not otherwise covered by the other clauses of this Section 5.17(a);
(xiv) any Contract under which it is a licensee of or is otherwise granted by a third party any rights to use any Intellectual Property Rights (other than non-exclusive end user licenses of commercially-available Software used solely for the Company’s internal use) that involves payments by the Company or any of its Subsidiaries of $250,000 or more per any twelve month period;
(xv) any Contract under which it is a licensor or otherwise grants to a third party any rights to use any Intellectual Property Rights (other than Intellectual Property Rights licensed to customers on a power non-exclusive basis in the Ordinary Course); and
(xvi) any other Contract or group of attorney related Contracts that, individually or in the aggregate, if terminated or subject to a default by any party thereto, would have or would reasonably be expected to have a Material Adverse Effect (each Contract constituting any of the Company or any Company Subsidiaryforegoing types of Contract described in clauses (i)–(xv), and including all amendments, exhibits and schedules to each such Contract from time to time, a “Material Contract”).
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)A copy of each Material Contract has been made available to Parent. Unless otherwise disclosed, each Material Contract is a valid and binding agreement of on the Company or the Company Subsidiaryits Subsidiaries, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiaryapplicable, and, to the Knowledge of the Company, the each other parties party thereto, and is in full force and effect, except as would not, individually or in the case may beaggregate, reasonably be expected to have a Material Adverse Effect. There is no material default under any such Material Contracts by the Company or its Subsidiaries, or, to the Knowledge of the Company, any other party thereto, and no material event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or its Subsidiaries, or, to the Knowledge of the Company, any other party thereto, in accordance with its termseach case, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcyas would not, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law individually or in equity)the aggregate, reasonably be expected to have a Material Adverse Effect. Neither Since January 1, 2017, the Company nor has not received any Company Subsidiary written notice that it or any of its Subsidiaries is in default or breach in any material respect, or has received written notice of any material default “non-solicitation” or breach (“no-hire” or similar provision that restricts the Company or any event thatof its Subsidiaries from soliciting, with notice hiring, engaging or lapse of time employing any Person’s current or both, would constitute a material default or breach), under the terms of any such Material Contractformer employees. To the Knowledge of the Company, no counterparty to neither the Company nor any Material Contract is in default of its Subsidiaries has received any notice challenging the validity or breach, in enforceability of any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Majesco)
Material Contracts. (a) Section 4.10(a) of the Parent Disclosure Schedules lists each of the following Contracts that are currently in effect and binding on Parent or its Subsidiaries or any of their respective assets or properties (together with all Parent Leases listed on Section 4.12(c) of the Parent Disclosure Schedules, collectively, the “Parent Material Contracts”):
(i) Company Disclosure Schedule 3.1(p)(i) contains a list any Contract involving aggregate consideration in excess of all Material Contracts (as defined $250,000 per year or in Section 3.1(p)(ii) below) to which excess of $500,000 over the Company or any remaining term of the Company Subsidiaries is a party or Contract, which cannot be cancelled by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.the applicable Parent Subsidiary without penalty or without more than 90 days’ notice;
(ii) Material Contracts any Contract that relates to the sale of any of Parent’s or any of its Subsidiaries’ assets, other than inventory in the Company Ordinary Course of Business, for consideration in excess of $100,000;
(iii) any Contract that relates to the acquisition or divestiture of any business, a material amount of stock or other Equity Interests of any other Person, or a material amount of assets of any other Person (excluding purchases of inventory in the Ordinary Course of Business) or any real property (whether by merger, sale of stock, sale of assets or otherwise), and the Company Subsidiaries all partnership or joint venture agreements;
(“Material Contracts”iv) shall include:
any Contract pursuant to which (A) any Contracts with third parties which would be reasonably expected Intellectual Property that is material to involve payments to Parent and its Subsidiaries or from the Company or a Company Subsidiary involves consideration in excess of $1,000,000 250,000 is licensed to Parent or more in any twelve of its Subsidiaries (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require license agreements for unmodified “off-the-shelf” software on generally standard terms and conditions involving aggregate payments consideration of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A50,000) or (B) aboveParent or any of its Subsidiaries has granted or received an exclusive right in or to Intellectual Property;
(v) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts except for agreements relating to the sale of obsolete or excess assets not required for the Company’s operations trade receivables in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty Business, all mortgages, indentures, notes, bonds, letters of credit, guaranties (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereofexcluding vendor related guarantees);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale swaps or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (Indebtedness incurred or provided by merger, purchase of stock Parent or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:or providing for the creation of or granting any Lien upon any of the assets or property of Parent or its Subsidiaries;
(Avi) all collective bargaining agreements or agreements or understandings or Contracts with any Contract containing covenants that in labor organization, union, works council, association or other similar organization;
(vii) except for Contracts with vendors pursuant to which the vendor imposes restrictions and requirements on Parent or its Affiliates with respect to the use by Parent or such Affiliates of such vendor’s products, all Contracts restricting Parent or any way purport to restrict or prohibit, of its Affiliates from freely engaging in any material respectline of business, including any Contract that limits, or purports to limit, the business activity ability of the Company Parent or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof its Affiliates to engage compete in any line of business or to compete with any Person or in any geographic area or during any period of time, or that restricts the right of Parent or any of its Affiliates to sell or purchase from any Person or to hire any Person; or, or that grants the other party or any third Person “most favored nation” status, any type of special discount rights or exclusivity;
(Bviii) any Contract providing for capital expenditures by Parent or any of its Subsidiaries with an outstanding amount of unpaid obligations and commitments in excess of $100,000;
(ix) any employment or consulting Contract involving annualized consideration in excess of $180,000;
(x) any Contract with any Governmental Entity (excluding Permits);
(xi) any Contract with a Related Party of Parent (other than any employment or consulting contracts (other than those covered in Section 4.10(a)(ix)), offer letters, confidentiality agreements, assignment of rights agreements and non-solicitation agreements entered into in the Ordinary Course of Business);
(xii) any Contract relating to settlement of any Legal Proceeding within the past three years or any settlement with ongoing obligations involving aggregate consideration in excess of $100,000;
(xiii) any Contract that grants provides for non-monetary obligations on the part of Parent or any of its Subsidiaries, the non-performance of which obligations would reasonably be expected to have a third Person Material Adverse Effect on Parent and its Subsidiaries, taken as a right of first refusal, option, preferential right or similar right whole;
(xiv) any written agreement to acquire properties or assets enter into any of the Company foregoing; and
(xv) any other Contract, whether or any Company Subsidiary not made in the Ordinary Course of Business, that is material to Parent and its Subsidiaries or any Contract that grants to a third party a power the assets, liabilities, condition (financial or otherwise) or results of attorney operations of the Company or any Company SubsidiaryParent and its Subsidiaries.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Each Parent Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and (assuming the due authorization, execution and delivery by the relevant counter-party) constitutes the legal, valid and binding agreement of Parent or the applicable Parent Subsidiary, and is enforceable against the Company Parent or the applicable Company Subsidiary, Parent Subsidiary and, to the Knowledge of the CompanyParent, the of each other parties party thereto, as the case may be, in accordance with its terms, except subject to the extent that the enforcement thereof may be limited by (A) any applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or other similar laws now or hereafter in effect Laws relating to creditors’ rights generally and (B) or to general principles of equity (regardless equity. Except as set forth on Section 4.10(b) of whether enforceability is considered the Parent Disclosure Schedules, Parent or the applicable Parent Subsidiary and, to the Knowledge of Parent, each of the other parties thereto, have performed in a proceeding at law all material respects all obligations required to be performed by them under, and are not in breach of, or in equity). Neither the Company nor any Company Subsidiary is in default or breach under, in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Parent Material Contract. To the Knowledge of the CompanyParent, no counterparty event has occurred that (with or without notice or lapse of time) would reasonably be expected to result in a breach of or violation of, or a default under, the terms of any Material Contract is in default or breach, in any material respect, of such Parent Material Contract. The Company A true and complete copy of each Parent Material Contract, including any amendments thereto, has been made available to the Company. No party to any Parent prior Material Contract has exercised any termination or cancellation rights with respect thereto and neither Parent nor any of its Subsidiaries have received (or given) any written notice of the intention of any party to any Parent Material Contract to terminate, cancel, breach, amend the date hereof a true and correct copy terms of each or accelerate the maturity or performance of any Parent Material Contract or alleging invalidity or unenforceability of such Parent Material Contract. No party to any Parent Material Contract has claimed in event of “force majeure” or similar concept under any Parent Material Contract.
Appears in 1 contract
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains 3.24 sets forth a list of all Material Contracts (as defined written or oral) currently in Section 3.1(p)(ii) below) effect other than Plans, including all amendments, modifications and supplements thereto, to which the Company or any Subsidiary of the Company Subsidiaries is a party party, or by which the Company or any Subsidiary of the Company Subsidiaries is otherwise bound. A true, correct meeting any of the descriptions set forth below:
(a) (i) all Contracts or group of related Contracts with the same party for the purchase of products or services, under which the Company or any Subsidiary of the Company reasonably may be expected to purchase $100,000 or more of products or services during the period ending twelve (12) months after the date hereof, (ii) all Contracts which cannot be terminated on less than 61 days’ notice, and complete copy (iii) all Contracts which cannot be terminated at a cost of each Material Contract less than $250,000 without other penalty;
(b) all Contracts that require the Company or any Subsidiary of the Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(c) all Contracts that provide for the guarantee by the Company or any Subsidiary of the Company of the liabilities of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(d) all Contracts that limit or purport to limit the ability of the Company or any Subsidiary of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(e) all employment Contracts (other than at-will offer letters), payments to employees, executives or Persons controlled by executives pursuant to employment agreements or otherwise, contracts with independent contractors and any other Contracts with any Company Employee or any other Person containing severance, noncompetition, change of control payments or proprietary rights provisions (other than offer letters), including any Contracts that require the payment of any amounts or the granting of any rights as a result of entering into this Agreement and/or consummating the transactions contemplated hereby;
(f) all leases for the Leased Real Property;
(g) all Contracts that include or constitute a power of attorney (excluding power of attorney in connection with customs forms entered into in the Ordinary Course of Business);
(h) all capital leases or personal property leases;
(i) excluding Off-the-Shelf Software, all Contracts related to Intellectual Property, including all licenses and agreements pursuant to which the Company or any Subsidiary of the Company uses Intellectual Property or licenses Intellectual Property to third parties;
(j) all Contracts (or group of related Contracts) under which the Company or any Subsidiary of the Company has been furnished created, incurred, assumed, or made available guaranteed any Indebtedness;
(k) all Contracts (or group of Contracts) under which the Company or any Subsidiary of the Company contracts for any material agency, representation, distribution, or brokerage services for the sale of its products;
(l) all Contracts (or group of Contracts) under which the Company or any Subsidiary of the Company contracts for transportation or freight services;
(m) all Contracts (or group of Contracts) under which the Company or any Subsidiary of the Company contracts for the advertisement, display or promotion of any products involving payments of more than $25,000 annually; or
(n) all Contracts (or group° f Contracts) under which the Company or any Subsidiary of the Company provides rebates to Parent or its representativesany third-parties (excluding coupons).
(iio) Material all Contracts (or group of Contracts) that require capital expenditures in excess of $250,000 in the aggregate on or after the Closing Date;
(p) all Contracts (or group of Contracts) that deal with the provision of goods or services by or on behalf of the Company and or any Subsidiary of the Company Subsidiaries (“Material Contracts”) shall include:on a co-manufacturing basis;
(Aq) any all Contracts with third parties which would be reasonably expected to involve payments to any former director, former officer, former employee, former independent contactor, former consultant or from former member of the Company or a Company any Subsidiary of the Company for compensation in excess of $1,000,000 or more 25,000 in any twelve (12) month period;
(r) all Contracts (or group of Contracts) concerning a franchising, partnership, joint venture or similar arrangement;
(s) all Contracts containing confidentiality or non-disclosure obligations of the Company or any Subsidiary of the Company pursuant to which the Company or such Subsidiary of the Company has received or expects to receive confidential information of a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefromthird party;
(Bt) all Contracts relating to the purchase or sale of a business for a period of two years prior to the date of this Agreement of the Company or any Subsidiary of the Company or under which indemnification obligations remain outstanding;
(u) all Contracts containing covenants of the Company or any Subsidiary of the Company to indemnify or hold harmless another Person or group of Persons (except for product warranty obligations in Contracts for the construction sale of gathering or goods and other pipeline systems or processing, compression, treating or storage facilities other than Contracts entered into in the Ordinary Course of Business);
(v) any such Contracts that are reasonably expected Contract pursuant to require aggregate payments of less than $2,500,000 or are terminable by which the Company or applicable any Subsidiary of the Company Subsidiary on sixty is required to purchase goods or services after the Closing Date outside the Ordinary Course of Business;
(60w) days’ notice any other Contract (or less group of Contracts) that has an aggregate future obligation to any person in excess of $100,000 during the twelve (12) months after the Closing Date and is not terminable, without payment cost, by the Company or any Company Subsidiary of any penaltythe Company by notice of not-more than 60 days;
(Cx) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than all Contracts relating to the sale of obsolete merger, consolidation, reorganization or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company any similar transaction involving or a Company Subsidiary on sixty (60) days’ notice or less without payment by with respect to the Company or any Company Subsidiary of any penaltythe Company;
(Dy) any all Contracts under which relating to the collection, processing, protections, sharing, disclosure or disposal of User Data or Personal Data;
(z) all Contracts containing an exclusivity provision between the Company or any Company Subsidiary assumed or guaranteed of the Company, on the one hand, and any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof)Person, on the other hand;
(Eaa) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale all Contracts containing consignment or other derivative Contracts involving hydrocarbons or other commoditiesguaranteed sales provisions;
(Fbb) all hedge, future or forward Contracts;
(cc) all Contracts: (i) granting exclusive rights to license, market, sell or deliver any Contracts relating to of the acquisition (by merger, purchase of stock products or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations services of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or of users of any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venturemarketplace, partnership computer software, web site, or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate service of the Company or any Subsidiary of the Company; (ii) otherwise contemplating an exclusive or preferred relationship between the Company Subsidiariesor any Subsidiary of the Company, on the one hand, and any other Person, on the other hand, including but not limited to Contracts regarding supplier arrangements, distribution, production or advertising; (iii) containing any non-competition, non-solicitation or other similar provisions; or (iv) granting any “most favored nation”, right of first offer or similar preferential rights to any Person; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(Add) any other Contract containing covenants (or group of Contracts) that in any way purport is material to restrict or prohibit, in any material respect, the business activity of the Company or any Subsidiary of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof and not previously disclosed pursuant to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each this Section 3.24. Each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, in accordance with its terms and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity)effect. Neither the Company nor or any Subsidiary of the Company Subsidiary nor, to the Company’s Knowledge, any other party to any Material Contract is in default or material breach in any material respectof, or in default under, any Material Contract, nor has the Company or any Subsidiary of the Company received written any notice of any material default intention to terminate any Material Contract. No event or breach (or any event circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a material default termination thereof or breach), under would cause or permit the terms acceleration or other changes of any such right or obligation or the loss of any benefit thereunder. Complete, correct and fully executed copies of each Material ContractContract (including all amendments, modifications and supplements thereto and waivers thereunder) have been made available or delivered to the Buyer. To Neither the Knowledge Company or any Subsidiary of the Company nor, to the Company’s Knowledge, any other party thereto is in breach of any obligation under any purchase order, which breach would, individually or in the aggregate, be material to the Company or any Subsidiary of the Company, no counterparty to . Neither the Company nor any Material Contract is in default or breach, in any material respect, Subsidiary of such Material Contract. The the Company has made available to Parent prior to the date hereof a true and correct copy affirmatively waived any of each its respective material rights under any Material Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bespoke Capital Acquisition Corp)
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains a list Except for this Agreement, as of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the date hereof neither the Company or nor any Subsidiary of the Company Subsidiaries is a party to any contract, arrangement, commitment or understanding currently in effect or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound (i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company Subsidiaries is otherwise bound. A trueExchange Act), correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts that is a Contract with a customer of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, Company’s laundry facilities management business pursuant to which the Company and its Subsidiaries (A) received revenues in excess of $350,000 for the 2012 fiscal year or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts are expected to receive revenues in excess of $350,000 for the construction of gathering or other pipeline systems or processing2013 fiscal year (collectively, compressionthe “Material Customer Contracts”), treating or storage facilities other than any such Contracts (iii) that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by obligates the Company or any Company Subsidiary of its Subsidiaries to make any penalty;
(C) any Contracts (not described future capital commitment or capital expenditure in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary excess of $1,000,000 or more in any twelve 500,000 (12) month period, other than Contracts relating to laundry equipment purchases in the sale ordinary course of obsolete or excess assets not required for business), (iv) containing a covenant limiting the ability of the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company , any Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by person that controls, or is under common control with, the Company to compete or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person in any geographic area, or that prevents the Company or any of its Subsidiaries from entering any territory, market or field or freely engaging in business anywhere in the world, (v) with any Third Party containing any “non-solicitation”, “no-hire” or similar provision which restricts the Company or any of its Subsidiaries from soliciting, hiring, engaging, retaining, or employing any Person; or
’s current or former employees in any material respect, (vi) relating to or evidencing Indebtedness or any guarantee of Indebtedness by the Company or any Subsidiary of the Company in excess of $1,000,000, (vii) that is a license to, or otherwise contemplates the development, use, assertion, enforcement, assignment, sale or purchase of, any Company Intellectual Property Assets, including any licenses granted by or to the Company or any of its Subsidiaries (other than (A) licenses for unmodified commercially available off-the-shelf software with a total replacement cost and/or license fee of less than $50,000, or (B) arrangements with employees entered into in the ordinary course of business) or that contemplates the restriction of any Contract of the foregoing, (viii) to which any of the Company’s or its Subsidiaries’ directors or officers is a party (other than Company Employee Plans, including any award agreements thereunder), (ix) that grants relates to a third Person a right of first refusalthe formation, optioncreation, preferential right governance or similar right to acquire properties control of, or assets the economic rights or obligations of the Company or any of its Subsidiaries in, any joint venture, limited liability company, partnership or other similar arrangement, (x) that relates to the acquisition or disposition of any business, assets or properties (whether by merger, sale of stock, sale of assets or otherwise) that was entered into after January 1, 2010 and (a) pursuant to which any earn-out or deferred or contingent payment obligations remain outstanding or (b) pursuant to which a claim for indemnification may still be made against the Company Subsidiary or any Contract of its Subsidiaries for breaches of general representations and warranties within the general survival period set forth therein (excluding claims based on willful misconduct, intentional misrepresentation or fraud) or (xi) that grants would reasonably be expected to involve payments by or to the Company or any of its Subsidiaries of $2,000,000 or more per any twelve-month period and is not otherwise covered by the above. Each contract, arrangement, commitment or understanding of the type described above in this Section 4.14, whether or not set forth in Section 4.14 of the Company Disclosure Schedule is referred to herein as a third party a power of attorney “Material Contract.” None of the Company or any of its Subsidiaries grant a right of exclusivity, or provides a “most favored nation” benefit, to any other Person in any Material Customer Contract. Since January 1, 2011 the Company Subsidiary.
(iv) Except as set forth on has not received any written notice that it or its Subsidiaries is in default or breach of any “non-solicitation”, “no-hire” or similar Contract provision which restricts the Company Disclosure Schedule 3.1(p)(iv)or any of its Subsidiaries from soliciting, each hiring, engaging, retaining, or employing any Person’s current or former employees. All of the Material Contract is a Contracts are valid and binding agreement of on the Company or any Subsidiary of the Company SubsidiaryCompany, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the each other parties party thereto, as the case may beapplicable, and in accordance with its termsfull force and effect, except to the extent that the enforcement thereof as may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or moratorium and other similar laws now or hereafter in effect relating to Applicable Law affecting creditors’ rights generally and (B) by general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Subsidiary of the Company Subsidiary is in default or breach has, and to the Knowledge of the Company, none of the other parties thereto have, violated in any material respectrespect any provision of, or committed or failed to perform any act, and to the Knowledge of the Company no event or condition exists, which would constitute a material default under the provisions of any Material Contract, except in each case, those violations and defaults which, individually or in the aggregate, would not reasonably be expected to be material to the Company and its Subsidiaries taken together as a whole and neither the Company nor any Subsidiary of the Company has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contractforegoing. To the Knowledge of the Company, no counterparty to Person is challenging the validity or enforceability of any Material Contract is Contract, except in default each case for those challenges which, individually or breachin the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect and neither the Company nor any material respect, Subsidiary of such Material Contract. The the Company has made available to Parent prior to received written notice of any of the date hereof a true and correct copy of each Material Contractforegoing.
Appears in 1 contract
Sources: Merger Agreement (Mac-Gray Corp)
Material Contracts. (ia) The Company Disclosure Schedule 3.1(p)(ihas filed as exhibits to, or incorporated by reference in, the Company’s Annual Report on Form 10-K for its fiscal year ended December 31, 2005, and subsequent Form 10-Qs each “material contract” required to be filed pursuant to Item 601(b)(10)(ii) of Regulation S-K promulgated by the SEC.
(b) Section 3.11(b) of the Company Letter contains a list complete and accurate list, as of the date hereof, of all Material Contracts (as defined in Section 3.1(p)(ii) below) of the following contracts to which the Company or any of the Company its Subsidiaries is a party or by which the Company or any of them is bound (collectively, the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”): (i) shall include:
(A) any Contracts with third parties which would be reasonably expected each material contract relating to involve payments to distribution, sale, supply, licensing, co-promotion or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary manufacturing of any penalty;
(C) any Contracts (not described in clause (A) products or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate services of the Company or any of its Subsidiaries; (ii) each material contract relating to distribution, sale, supply, licensing, co-promotion or manufacturing of any products or services of a Person to the Company or any of its Subsidiaries; and
(Iiii) material contracts for the Loan Agreements sale of any of the assets of the Company and each its Subsidiaries, taken as a whole, other indenturethan in the ordinary course of business, mortgageor for the grant to any Person of any preferential rights to purchase any assets of the Company and its Subsidiaries, taken as a whole, other than in the ordinary course of business; (iv) contracts the effect of which is that the Company or any of its Subsidiaries may not compete in any way whatsoever with any Person or otherwise having an adverse effect on the right of the Company and its Subsidiaries to manufacture, sell or distribute any products or services or to purchase or otherwise obtain any components or parts; (v) contracts with any current or, if still in effect, former officer or director of the Company; (vi) indentures, credit agreements, mortgages, promissory note or notes, and other agreement or commitment for contracts relating to the borrowing of money, ; and (vii) each “material contract” required to be filed pursuant to Item 601(b)(10)(ii) of Regulation S-K promulgated by the SEC as an exhibit to a registration statement on Form S-1 under the Securities Act or for a line an annual report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the SEC on the date of creditthis Agreement.
(iiic) Except as set forth on Each Material Contract is a legal, valid and binding agreement of the Company Disclosure Schedule 3.1(p)(iii), or its Subsidiaries; neither the Company nor any of its Subsidiaries is a in default under any Material Contract and none of such Material Contracts has been cancelled by the other party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each thereto. Each Material Contract is a valid and binding agreement of enforceable by the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its termseffect, except to the extent that any such contract has expired in accordance with its terms. To the enforcement thereof may be limited by (A) applicable bankruptcyknowledge of the Company, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor no party has repudiated any Company Subsidiary is in default or breach in any material respect, or has received written notice provision of any material default or breach (or any Material Contract and no event thathas occurred which, with notice or lapse the passage of time or the giving of notice or both, would constitute a material default, event of default or breach), under other breach by the terms Company or any of any its Subsidiaries party thereto which would entitle the other party to such Material Contract. To Contract to terminate the Knowledge of the Company, no counterparty to any Material Contract is in same or declare a default or breach, in any material respect, event of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contractdefault thereunder.
Appears in 1 contract
Material Contracts. (ia) Section 3.13(a) of the Company Disclosure Schedule 3.1(p)(i) contains Letter sets forth a list of all Material Contracts (other than this Agreement and each Contract filed as defined in Section 3.1(p)(iian exhibit to the Company SEC Documents at least two (2) belowBusiness Days prior to the date hereof) as of the date of this Agreement. For purposes of this Agreement, “Material Contract” means any Contract to which the Company or any of the Company its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound or subject (other than this Agreement and the Company Subsidiaries is otherwise bound. A true, correct and complete copy Benefit Plans) that:
(i) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of each Material Contract has been furnished or made available to Parent or its representatives.Regulation S-K;
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require involves aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary its Subsidiaries of more than $1,000,000 or more 3,000,000 in any twelve (12) month fiscal year period or $10,000,000 over a three year period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts excluding any such Contract that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment may be terminated by the Company or any of its Subsidiaries, without any material penalty or other material liability (except for payment obligations in respect of services provided prior to the applicable date of termination) to the Company Subsidiary or any of its Subsidiaries, upon notice of 180 days or less or (B) involves, or is reasonably expected in the future to involve, revenues of $10,000,000 or more in any penaltyfiscal year period or $30,000,000 or more in the aggregate over the term of such Contract;
(Diii) is material to the formation, creation, governance or control of any Contracts joint venture, partnership or other similar arrangement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iv) provides for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $5,000,000, other than Indebtedness solely between or among any of the Company and any of its wholly-owned Subsidiaries;
(v) provides for the grant, creation or assumption of any Lien (other than any Permitted Lien) on any asset, right or property that is material to the business of the Company and its Subsidiaries, taken as a whole;
(vi) limits or restricts the ability of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area during any time period in any material respect;
(vii) contains a “most favored nation” provision that materially restricts the business of the Company and its Subsidiaries, taken as a whole;
(viii) is a Contract under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of its Subsidiaries licenses Intellectual Property (other than Contracts containing a license incidental to the purpose thereof) from a third party in an amount in excess of $300,000 for any fiscal year period (excluding any licenses for generally available commercial software or “clickwrap,” “shrink-wrap” or freely downloadable software (including any Company Member Interest Holder or Affiliate thereofopen source));
(Eix) any outstanding futuresexcept for transactions between or among the Company and its wholly-owned Subsidiaries, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating relates to the acquisition or disposition (whether by merger, consolidation, stock purchase, asset purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of its Subsidiaries of any operating business or (A) equity interests or (B) assets (other than equity interests) for aggregate consideration in excess of any other Person which contain continuing obligations $5,000,000, in each case, that (1) was entered into after January 1, 2017 or (2) contains an outstanding obligation of the Company or its Subsidiaries to make any Company Subsidiary and deferred or contingent payment in an aggregate amount in excess of $5,000,000 or to indemnify any Person against any liabilities or obligations in an aggregate amount in excess of $5,000,000;
(x) is a hotel management agreement under which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunderof its Subsidiaries manages any real property owned or leased by a third party;
(Gxi) each joint venture(A) is a concession granted by any Governmental Entity relating to any property that is material to the business of the Company and its Subsidiaries or (B) is a Contract that is otherwise material to the business of the Company and its Subsidiaries and to which Contract any Governmental Entity is a party;
(xii) involves a related party transaction that would be required to be disclosed by the Company pursuant to Item 404 of Regulation S-K;
(xiii) is a nondisclosure agreement, partnership confidentiality agreement or similar Contract entered into since January 1, 2017 that imposes “standstill” or similar restrictions on any Person with respect to the Company Shares (other Contract involving than any such agreement entered into in connection with the sale process conducted by the Company in connection with this Agreement); or
(xiv) other than pursuant to any Applicable Law, grants a sharing right of profits first refusal, right of first offer or losses similar right to a third party in respect of any assets or equity interests owned by the Company or any of its Subsidiaries that are material to the Company Subsidiaries with any other Person;and its Subsidiaries, taken as a whole.
(Hb) The Company has made available to Parent true and correct copies of each Contract with any directorMaterial Contract, officer, member, employee or Affiliate as amended to date. All of the Material Contracts are valid and binding on the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is (to the extent a party to:
(Athereto) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties each other party thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its termseffect, except where the failure to the extent that the enforcement thereof may be limited by (A) applicable bankruptcyin full force and effect, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law individually or in equity)the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company has not been notified in writing that any Person is challenging the validity or enforceability of any Material Contract, except such challenges which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company Subsidiary is in default or breach in any material respectof the other parties thereto, has violated any provision of, or committed or failed to perform any act which would constitute a default (whether after the giving of notice, with lapse of time, or otherwise) under any provision of, and neither the Company nor any of its Subsidiaries has received written notice of that it has violated or defaulted under, any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To , except for those violations and defaults which, individually or in the Knowledge of the Companyaggregate, no counterparty have not had and would not reasonably be expected to any have a Company Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Belmond Ltd.)
Material Contracts. (ia) Company Section 2.13 of the Migami Disclosure Schedule 3.1(p)(i) contains Schedules sets forth a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) of, and Migami has made available to BBV, true, correct and complete copies of, each written contract, agreement, commitment, arrangement, lease, license, permit or plan and each other instrument to which the Company Migami or any of the Company Subsidiaries Subsidiary is a party or by which the Company Migami or any Subsidiary is bound as of the Company Subsidiaries date hereof (each, a “Migami Material Contract”) that:
(i) is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.described in the Migami Financials;
(ii) Material Contracts contains covenants that materially limit the ability of Migami or any Subsidiary (or which, following the consummation of the Company and Merger, could materially restrict the Company ability of BBV, Migami Sub, the Subsidiaries or any of their Affiliates): (A) to compete in any line of business or with any Person (as defined herein) or in any geographic area or to sell, supply, price, develop or distribute any service, product or asset, including any non-competition covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or (B) to purchase or acquire an interest in any other entity, except, in each case, for any such contract that may be canceled without any penalty or other liability to Migami or any Subsidiary upon notice of sixty (60) days or less;
(iii) involves any joint venture, partnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of Migami or its Subsidiaries, taken as a whole;
(iv) relates to any obligation, contingent or otherwise (whether incurred, assumed, guaranteed or secured by any asset) (“Material ContractsIndebtedness”“) shall include:having an outstanding principal amount in excess of $50,000 with respect to any Indebtedness;
(v) was entered into by Migami or any Subsidiary and has not yet been consummated, and involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of a substantial amount of the assets or capital stock or other equity interests of another Person, other than the acquisition or disposition of assets in the ordinary course of business consistent with past practices;
(vi) by its terms calls for aggregate payments by or to Migami or its Subsidiaries under such contract of more than $50,000 with respect to any payments;
(vii) with respect to any material agreement for the acquisition or disposition, directly or indirectly (by merger or otherwise), of a substantial amount of the assets or capital stock or other equity interests of another Person, pursuant to which Migami Sub or its Subsidiaries have: (A) any Contracts with third parties which would be reasonably expected to involve payments to continuing indemnification obligations or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering “earn-out” or other pipeline systems contingent payment obligations;
(viii) involves any managers, directors, executive officers or processing, compression, treating key employees of Migami Sub or storage facilities other than any such Contracts its Subsidiaries that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on cannot be cancelled within sixty (60) days’ notice without liability, penalty or less without payment by the Company or any Company Subsidiary of any penaltypremium;
(Cix) any Contracts (not described in clause (A) obligates Migami Sub or (B) above) which would be reasonably expected its Subsidiaries to involve payments to or from the Company provide indemnification or a Company Subsidiary guarantee in excess of $1,000,000 50,000 with respect to any obligation;
(x) obligates Migami Sub or more its Subsidiaries to make any capital commitment or capital expenditure (including pursuant to any joint venture) in excess of $50,000 with respect to such obligation;
(xi) relates to the development, ownership, licensing or use of any twelve Intellectual Property (12as defined herein) month periodmaterial to the business of Migami Sub or its Subsidiaries, other than Contracts relating “shrink-wrap,” “click-wrap,” and “off-the-shelf” software agreements and other agreements for software commercially available on reasonable terms to the sale public generally, with license, maintenance, support and other fees of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty less than $50,000 per year (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;collectively, “Off-the-Shelf Software Agreements”); or
(Dxii) provides for any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of creditstandstill arrangements.
(iiib) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity Section 2.13 of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof Migami Disclosure Schedules, with respect to engage in any line of business or to compete with any Person; or
each Migami Material Contract: (Bi) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Migami Material Contract is a valid legal, valid, binding and binding agreement of the Company enforceable in all material respects against Migami or the Company SubsidiarySubsidiaries, as the case may be, and the other party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, (except as the case may be, in accordance with its terms, except to the extent that the such enforcement thereof may be limited by the Enforceability Exceptions); (Aii) applicable bankruptcythe consummation of the transactions contemplated by this Agreement will not affect the terms, insolvency, reorganization, moratorium, fraudulent conveyance validity or enforceability of such Migami Material Contract against Migami or its Subsidiaries and the other similar laws now or hereafter in effect relating to creditors’ rights generally and party thereto; (Biii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company neither Migami nor any Company Subsidiary its Subsidiaries is in default breach or breach in any material respectdefault, or and no event has received written notice of any material default or breach (or any event thatoccurred which, with notice or lapse the passage of time or giving of notice or both, would constitute such a material breach or default by Migami or breach)its Subsidiaries, or permit termination or acceleration by the other party, under the terms of any such Migami Material Contract. To the Knowledge of the Company; (iv) to Migami and each Subsidiary’s Knowledge, no counterparty other party to any Migami Material Contract is in breach or default, and no event has occurred which, with the passage of time or giving of notice or both, would constitute such a breach or default by such other party, or breachpermit termination or acceleration by Migami or its Subsidiaries, in any material respect, of under such Migami Material Contract. The Company has made available , and (v) the consummation of the transactions contemplated by this Agreement will not obligate Migami or its Subsidiaries to Parent prior to the date hereof a true and correct copy of each Material Contractmake any payments thereunder.
Appears in 1 contract
Sources: Merger Agreement (BBV Vietnam S.E.A. Acquisition Corp.)
Material Contracts. (ia) Except for this Agreement or as set forth in Section 3.17 of the Company Disclosure Schedule 3.1(p)(i) contains a list Letter, none of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party to or bound by (each a “Company Material Contract”):
(i) any 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 promulgated by the SEC, other than those agreements and arrangements described in Item 601(b)(10)(iii);
(ii) any Contract with a related person (as defined in Item 404 of Regulation S-K of the Securities Act) that would be required to be disclosed in the Company SEC Reports but has not been disclosed;
(iii) any Contract that relates to the formation, creation, governance, economics or control of any material joint venture, partnership or other similar arrangement;
(iv) any Contract for the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case (a) entered into since January 1, 2019 and involving amounts in excess of $10,000,000 or (b) pursuant to which the Company or any Company Subsidiary has material continuing obligations;
(v) any Contract relating to the borrowing or lending of Indebtedness in a principal amount in excess of $2,000,000, except for agreements relating to trade receivables or payables, loans to or from the Company Subsidiaries in the ordinary course of business and extensions of credit to customers or from vendors in the ordinary course of business;
(vi) any Contract (excluding purchase orders) that is one of the top 10 Contracts with a customer or strategic partner, measured by aggregate payments received by the Company or the Company Subsidiaries during the fiscal year ended December 31, 2020;
(vii) any Contract (excluding purchase orders) that (A) is one of the top 10 Contracts for the purchase of materials, supplies, goods, services, equipment or other assets, measured by aggregate payments made by the Company or the Company Subsidiaries during the fiscal year ended December 31, 2020 or (B) relates to the purchase of materials, supplies, goods, services, equipment or other assets relating to the Company’s Verigene platform (provided, clause (B) shall only include Contracts that are material, individually or in the aggregate, to the Company’s Verigene platform);
(viii) any Contract that is with a Governmental Authority involving aggregate payments made or received by the Company and the Company Subsidiaries in excess of $1,000,000 during the fiscal year ended December 31, 2020;
(ix) any Contract that contains (A) any covenant that purports to materially limit or otherwise materially restrict the ability of the Company or the Company Subsidiaries to compete in any business or geographic area, (B) a “most favored nation” clause or other term providing preferential pricing or treatment to a third party or (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of the Company Subsidiaries is to sell, transfer, pledge or otherwise bound. A true, correct and complete copy dispose of each Material Contract has been furnished assets or made available to Parent or its representatives.any business;
(iix) Material Contracts any Contract that contains a license to any material Intellectual Property Rights, except for shrink wrap or click wrap licenses for off the shelf computer software; or
(xi) any Contract relating to the settlement of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
any Legal Proceeding (A) any Contracts with third parties which would involving amounts to be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses paid by the Company or any of the Company Subsidiaries with any other Person;
in excess of $2,000,000 or (HB) each Contract with any director, officer, member, employee involving material injunctive or Affiliate equitable relief or imposing restrictions on the business activities of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and , in each other indenture, mortgage, promissory note or other agreement or commitment case for the borrowing of moneywhich there are ongoing material continuing obligations of, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii)restrictions on, neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(ivb) The Company has made available to Parent true and correct copies of each Company Material Contract in effect as of the Agreement Date (it being understood that, for the purposes of this sentence, any document that is publicly available in a Company SEC Report shall be deemed to have been “made available” to Parent). Except as set forth on would not, individually or in the aggregate, reasonably be expected to have a Company Disclosure Schedule 3.1(p)(iv)Material Adverse Effect, each of the Company Material Contract Contracts is in full force and effect, and represents a valid and binding agreement obligation of the Company or a Company Subsidiary, enforceable in accordance with its terms against the Company or the Company Subsidiary, Subsidiary (as the case may be, party thereto ) and, to the Knowledge of the Company, the counterparties each other party thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, except as the case may be, in accordance with its terms, except to the extent that the enforcement thereof such enforceability may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or other similar laws now or hereafter in effect relating to Laws affecting the enforcement of creditors’ rights generally generally, and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law in Law or in equity). Neither the Company nor any Company Subsidiary is in breach of or default or breach in any material respect(or, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To to the Knowledge of the Company, no counterparty to has received notice of an alleged breach or default) under any Material Contract is in default or breach, in any material respect, of such Company Material Contract. The Company has made available to Parent prior , nor, to the date hereof a true and correct copy of each Company’s Knowledge, is any other party to such Company Material Contract, excluding, however, any breaches or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Luminex Corp)
Material Contracts. (ia) Company Section 3.09(a) of the Disclosure Schedule 3.1(p)(iSchedules lists as of the date hereof each of the following Contracts of each ACFP Company, excluding, in each case, any Benefit Plan, as of the date hereof (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including brokerage contracts) contains a list of all Material Contracts (as defined listed or otherwise disclosed in Section 3.1(p)(ii3.10(b) below) to which the Company or any of the Disclosure Schedules and all Company Subsidiaries is a party or by which the Company or any IP Agreements set forth in Section 3.12(b) of the Company Subsidiaries is otherwise bound. A trueDisclosure Schedules, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (being “Material Contracts”) shall include:):
(Ai) each Contract of any Contracts with third parties which would be reasonably expected to involve payments to or from the ACFP Company or a Company Subsidiary involving aggregate consideration in excess of $1,000,000 or more 100,000 and which, in any twelve (12) month periodeach case, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable cannot be cancelled by the Company without penalty or applicable Company Subsidiary on without more than sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penaltynotice;
(Cii) any all Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating with food suppliers material to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or ACFP Companies (taken as a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereofwhole);
(Eiii) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale all Contracts related to the lease of restaurant locations or other derivative Contracts involving hydrocarbons or other commoditiesreal property;
(Fiv) all Contracts that require any ACFP Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(v) all Contracts relating that provide for the assumption of any Tax, environmental or other Liability of any Person;
(vi) all Contracts that relate to the acquisition (by mergeror disposition of any business, purchase a material amount of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment real property (whether by merger, sale of monies by the Company stock, sale of assets or any Company Subsidiary to the applicable sellers thereunderotherwise);
(Gvii) each joint ventureall Contracts for the employment, partnership engagement or services of any other Contract involving employees, independent contractors or consultants with an annual base salary (or annual base wages or fees) in excess of $100,000 to which any ACFP Company is a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Personparty;
(Hviii) each Contract except for Contracts relating to trade payables, all Contracts relating to indebtedness (including guarantees) of any ACFP Company;
(ix) all Contracts with any director, officer, member, employee or Affiliate of the Governmental Authority to which any ACFP Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:(“Government Contracts”);
(Ax) any Contract containing covenants all Contracts that in any way limit or purport to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom ability of the any ACFP Company or any of the Company Subsidiaries thereof to engage compete in any line of business or to compete with any Person; orPerson or in any geographic area or during any period of time;
(Bxi) any Contract Contracts to which any ACFP Company is a party that grants to a third Person a right of first refusalprovide for any joint venture, option, preferential right partnership or similar right to acquire properties arrangement by the Company;
(xii) all Contracts between or assets of among any ACFP Company on the Company one hand and Seller or any Affiliate of Seller (other than the Company) on the other hand; and
(xiii) all collective bargaining agreements or Contracts with any Union to which any ACFP Company Subsidiary or any Contract that grants to is a third party a power of attorney of the Company or any Company Subsidiaryparty.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Each Material Contract is a valid and binding agreement of the Company or the Company Subsidiaryon an ACFP Company, as the case may beapplicable, party thereto and, to the Knowledge of the Company, the counterparties thereto, in accordance with its terms and is in full force and effect and effect, in each case subject to the Enforceability Exceptions. None of the ACFP Companies or, to Seller’s Knowledge, any other party thereto is enforceable against the in breach of or default in any material respect under any Material Contract. No ACFP Company or the applicable Company Subsidiary, andhas received any written or, to the Knowledge Seller’s Knowledge, oral notice from a party to a Material Contract of the Company, the other parties thereto, as the case may be, in accordance with its terms, except an intention to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance terminate any Material Contract. No event or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or circumstance has received written notice of any material default or breach (or any event occurred that, with notice or lapse of time or both, would constitute a material an event of default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is or result in default a termination thereof or breach, in would cause or permit the acceleration or the loss of any material respectbenefit thereunder. Complete and correct copies of each Material Contract (including all modifications, of such Material Contract. The Company has amendments and supplements thereto and waivers thereunder) have been made available to Parent prior to the date hereof a true and correct copy of each Material ContractBuyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (BurgerFi International, Inc.)
Material Contracts. (ia) Except for this Agreement and agreements filed with or incorporated by reference in the Company SEC Reports, Section 4.24(a) of the Company Disclosure Schedule 3.1(p)(i) contains a list Letter sets forth each of all Material the following Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company its Subsidiaries is a party to or by which the Company or any of its Subsidiaries or their respective properties or assets are bound:
(i) any Contract that would be required to be filed by the Company Subsidiaries is otherwise bound. A true, correct and complete copy as a “material contract” pursuant to Item 601(b)(10) of each Material Contract has been furnished or made available to Parent or its representatives.Regulation S-K under the Securities Act;
(ii) Material Contracts any Contract containing covenants binding upon the Company or any Subsidiary thereof that (A) materially restricts the ability of the Company and or any Subsidiary thereof (or which, following the consummation of the Merger, would materially restrict the ability of the Surviving Corporation) to compete (1) in any business that is material to the Company and its Subsidiaries, taken as a whole, as of the date of this Agreement, (2) with any Person or (3) in any geographic area or (B) materially restricts the right of the Company or any of its Subsidiaries to conduct its business as it is presently conducted or which could require the disposition of any material assets or line of business of the Company or any of its Subsidiaries;
(“Material Contracts”iii) shall include:any Contract with respect to a material joint venture or material partnership;
(iv) any Contract that involves the acquisition from another Person or disposition to another Person, directly or indirectly (by merger or otherwise), of any material asset, a business, division or Subsidiary that (A) any Contracts with third parties which would be reasonably expected to involve payments to was entered into since December 31, 2009 and was for aggregate consideration under such Contract (or from the Company or a Company Subsidiary series of related Contracts) in excess of $1,000,000 3,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering contains obligations (including indemnification, “earn-out” or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts contingent obligations) that are reasonably expected to require aggregate still in effect and could result in material payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penaltyits Subsidiaries;
(Cv) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from Contract that evidences Indebtedness of the Company or any of its Subsidiaries or Contract or instrument pursuant to which Indebtedness may be incurred or is guaranteed by the Company or any of its Subsidiaries, in each case, in excess of $1,000,000;
(vi) any Contract that is a financial derivatives master agreement or confirmation, futures account agreement, or any collar, option, forward purchasing, swap or derivative, or similar Contract or instrument, evidencing financial hedging or similar trading activities;
(vii) any Contract that is a mortgage, pledge, security agreement or other Contract granting a Lien (other than a Permitted Lien) on any material property or asset of the Company or its Subsidiaries;
(viii) any Contract that prohibits or requires the payment of dividends or distributions in respect of the capital stock or equity interests of the Company or any of its wholly owned Subsidiaries, prohibits the pledging of the capital stock or equity interests of the Company or any of its wholly owned Subsidiaries, or prohibits the issuance of guarantees by any wholly owned Subsidiary of the Company;
(ix) any Contract that is reasonably likely to involve the payment, in one transaction or a series of related transactions, to or by the Company or any of its Subsidiaries of more than $1,000,000 or more in any twelve (12) month period, other than Contracts relating (1) payments pursuant to the sale Contracts listed in Section 4.18(a) of obsolete or excess assets not required for the Company Disclosure Letter, (2) interest payments under the Company’s operations outstanding Indebtedness pursuant to Contracts and instruments set forth in Section 4.24(a)(v) of the Ordinary Course of Business and Contracts that are terminable by Company Disclosure Letter, (3) intercompany payments between or among the Company or a its Subsidiaries, (4) payments under all management and investment management agreements between Proprietary Funds and Clients, on the one hand, and the Company Subsidiary and its Subsidiaries, on sixty the other hand, (605) days’ payments and distributions under all limited partner interest letters, employment agreements and Company Benefit Plans and (6) payments under all Contracts that cannot be terminated without less than 60 days notice or less without payment by penalty;
(x) any Contract that is with any Governmental Entity, other than Investment Management Agreements entered into in the ordinary course of business;
(xi) any Contract that purports to subject the Company or any Company Subsidiary of any penaltyits Subsidiaries to a “standstill” or similar restriction;
(Dxii) any Contracts under Contract that is a voting agreement or registration rights agreement;
(xiii) any Contract that is a side letter or similar agreement entered into between the Company or any of its Subsidiaries, on the one hand, and any Client, on the other hand, including those that grant any “right of first refusal” or “most favored nations” rights or provide for indemnification or “claw-back” or similar undertakings requiring the rebate, reimbursement or refund of any fees in any such case, that is material to the Company and its Subsidiaries taken as a whole;
(xiv) any Contract for the distribution or sale of shares or units of a Proprietary Fund, other than those entered into in the ordinary course of business;
(xv) any Contract for custody, transfer agent, administration, prime broker, accounting or other similar services, other than those entered into in the ordinary course of business;
(xvi) any Contract that constitutes a collective bargaining agreement or other arrangement with any labor union, labor organization, workers’ association, works council or other collective group of employees; and
(xvii) any Contract for capital expenditures or the acquisition or construction of fixed assets which requires future payments in excess of $1,000,000;
(xviii) any Contract pursuant to which the Company or any Company Subsidiary assumed thereof (A) is granted or guaranteed obtains any outstanding Debt of a third party right to use any material Intellectual Property Rights (including other than Contracts granting rights to use readily available commercial off-the-shelf Software), (B) grants any Company Member Interest Holder right to use any material Intellectual Property Rights, (C) is restricted in its right to use or Affiliate thereof);
(E) register any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) material Intellectual Property Rights owned by the Company or any Company Subsidiary of any operating business its Subsidiaries, or equity interests of (D) permits any other Person which contain continuing obligations of the Company to enforce or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibit, in register any material respectIntellectual Property Rights, the business activity of the Company or including any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof license agreements, coexistence agreements, and covenants not to engage in any line of business or to compete with any Person▇▇▇; or
(Bxix) any Contract that grants for the employment of any individual on a full-time, part-time or consulting or other basis providing annual compensation in excess of $600,000, or having a term of three (3) years or more. Each such Contract described in clauses (i) through (xix) is referred to herein as a third Person “Company Material Contract.”
(b) The Company has made available to Parent, through the Company’s electronic data room or otherwise, a right true, correct and complete copy of first refusal, option, preferential right or similar right to acquire properties or assets each Company Material Contract. Each of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract Contracts is a valid and binding agreement of on the Company or the Company Subsidiary, as the case may be, and each of its Subsidiaries party thereto and, to the Knowledge of the Company, the counterparties each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect and is enforceable against that would not have or be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company or the applicable Company Subsidiarynor any of its Subsidiaries, andnor, to the Knowledge of the Company, the other parties theretoany counterparty to any Company Material Contract, as the case may beis in breach of, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor default under, any Company Subsidiary is in default or breach in any material respectMaterial Contract, or and no event has received written notice of any material default or breach (or any event that, occurred that with notice or the lapse of time or both, the giving of notice or both would constitute a material default or breach)thereunder, under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breachexcept, in any material respecteach case, of for such breaches or defaults as have not had and would not reasonably be expected to have a Company Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 1 contract
Material Contracts. (i) Except (i) for any Benefit Plan, (ii) as filed as exhibits to a Company Report, (iii) for this Agreement and the other agreements entered into between the Company and Parent in connection with the transactions contemplated hereby and (iv) as set forth in Section 5.1(j)(i) of the Company Disclosure Schedule 3.1(p)(i) Schedule, which contains a true, correct and complete list as of the date hereof of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company its Subsidiaries is otherwise a party or is bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts as of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary date of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii)this Agreement, neither the Company nor any of its Subsidiaries is party to or bound by any Contract (a party to:Contract described by clauses (A) through (T) of this Section 5.1(j)(i), including Contracts and all amendments and modifications thereto filed as exhibits to the Company Reports, being hereinafter referred to as a “Material Contract”):
(A) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(B) that contains any Contract containing covenants non-compete or exclusivity provision that in any way purport to restrict or prohibit, in any material respect, restricts the business activity ability of the Company or any of its Subsidiaries to compete with respect to any geographic area (or would so restrict, on its face, following the consummation of the Merger, the Surviving Corporation or any of its Affiliates);
(C) that provides for the Company Subsidiaries or materially limit any of its Affiliates to obtain a service, product, product line, operations or line of business from any Person (including any of the freedom Top Suppliers) that involved annual payments or consideration in the fiscal year ended January 1, 2022 (“Fiscal Year 2021”) (or which is expected to involve annual payments or consideration in the fiscal years ending December 31, 2022 (“Fiscal Year 2022”) or December 30, 2023 (“Fiscal Year 2023”)) in excess of $10,000,000, or that contains any minimum purchase commitments in excess of $10,000,000 annually;
(D) with a third-party manufacturer or supplier for the manufacture and/or supply of materials or products in the supply chain for the Company Products that involves annual payments or consideration in Fiscal Year 2021 (or which is expected to involve annual payments or consideration in Fiscal Year 2022 or Fiscal Year 2023) in excess of $10,000,000;
(E) with a third-party retailer or distributor for the sale of the Company Products (including any of the Top Distributors) that involves annual payments or consideration in Fiscal Year 2021 (or which is expected to involve annual payments or consideration in Fiscal Year 2022 or Fiscal Year 2023) in excess of $15,000,000;
(F) that contains covenants expressly limiting in any material respect the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of any material assets (including any restrictions on the Company Subsidiaries thereof to engage in transfer of any line of business Intellectual Property Rights) or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets businesses of the Company or any of its Subsidiaries;
(G) that contains any standstill, “most favored nation” or most favored customer provision or rights of first or last offer, negotiation or refusal, in each case, to which the Company Subsidiary or any of its Affiliates is subject (or that would so subject the Surviving Corporation or any of its Affiliates following the consummation of the Merger);
(H) that provides for or relates to a partnership, joint venture, collaboration or similar material arrangement (in each case, other than with respect to wholly owned Subsidiaries of the Company);
(I) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or guaranteeing indebtedness of any Person in excess of $3,000,000 (other than surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practice in each case to the extent not drawn upon), except for any Contract solely among or between the Company and any of its wholly owned Subsidiaries;
(J) that includes an uncapped indemnification obligation (other than indemnification obligations for ordinary course products liabilities or confidentiality obligations), a guarantee of the performance or payment of a third party, or any “earnout” or other contingent or deferred obligation payable, in each case by the Company or any of its Subsidiaries;
(K) that is a Material Real Property Lease;
(L) (1) pursuant to which a third party has granted to the Company or any of its Subsidiaries a license, covenant not to ▇▇▇ or other right to any Intellectual Property Rights (other than any (a) non-exclusive retail shrink-wrap or click-wrap license for off-the-shelf software that is generally available on a commercial basis, (b) Open Source Licenses, (c) agreements where any non-exclusive license of any Intellectual Property Rights is incidental to such agreement, such as non-exclusive licenses to use feedback and suggestions and non-exclusive licenses authorizing the use of brand materials for marketing purposes, (d) employee or contractor agreements entered into in the ordinary course of business pursuant to the Company’s or its Subsidiaries’ standard form of such agreement, and (e) nondisclosure agreements entered into in the ordinary course of business), including any Intellectual Property Rights included or embodied in any Company Product or any Contract that grants providing for the payment of royalties to any third party, (2) pursuant to which the Company or any of its Subsidiaries has granted a third party a power license, covenant not to ▇▇▇, or other right to any Owned Intellectual Property (other than any (a) non-exclusive licenses granted pursuant to end-user customer agreements and contractors agreements entered into in the ordinary course of attorney business, (b) agreements where any non-exclusive license of any Intellectual Property Rights is incidental to such agreement, such as non-exclusive licenses to use feedback and suggestions and non-exclusive licenses authorizing the use of brand materials for marketing purposes, and (c) nondisclosure agreements entered into in the ordinary course of business), (3) pursuant to which any Intellectual Property Right is or has been developed by or for the Company or any of its Subsidiaries, assigned to the Company or any of its Subsidiaries by any other Person, or assigned by the Company or and of its Subsidiaries to any other Person (other than any agreements signed by employees and contractors assigning to the Company or any of its Subsidiaries any Intellectual Property Rights made by such employee, in each case entered into in the ordinary course of business) or (4) which grants or conveys (or purports to grant or convey) any right with respect to Intellectual Property Rights of Parent or any of its Affiliates (other than Company or any of its Subsidiaries), in each of cases (1)–(4), including any Contract under which the rights granted are exclusive or sublicensable ((1), (2), (3) and (4) collectively, “Company IP Agreements”);
(M) with a Governmental Authority (other than Company Permits);
(N) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $1,000,000 (other than the Stock Plans or agreements entered pursuant thereto);
(O) that is a pricing protection plan or that would (or would purport to) restrict or impose conditions on third-party pricing;
(P) that relates to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of its Subsidiaries of assets or businesses with a fair market value in excess of $500,000;
(Q) that relates to sale promotion, market research, marketing, or advertising Contracts and involves expenditures in excess of $3,000,000 per annum;
(R) that relates to interest rate, currency, or commodity derivatives or hedging transactions;
(S) that relate to Contracts, transactions, indebtedness or other arrangements between the Company or any Subsidiary, on the one hand, and any of the directors or officers of the Company and Subsidiaries, on the other hand (other than compensation payable to officers and directors and employee expense reimbursement obligations and except to the extent not required to be disclosed pursuant to Item 404 of Regulation S-K promulgated under the Securities Act); or
(T) that is not covered by clauses (A) through (S) and involved in Fiscal Year 2021 or is expected to involve in Fiscal Year 2022 or Fiscal Year 2023 the payment by or to the Company or any of its Subsidiaries of more than $15,000,000 in the aggregate.
(ivii) The Company has made available to Parent prior to the date of this Agreement, accurate and complete copies of all Material Contracts required to be identified in Section 5.1(j)(i) of the Company Disclosure Schedule, including all amendments thereto, as in effect as of the date of this Agreement.
(iii) Except for expirations of Material Contracts in the ordinary course of business and except as set forth on Company Disclosure Schedule 3.1(p)(iv)has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, any of its Subsidiaries party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiaryany of its Subsidiaries in accordance with its terms, except that such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and, to the Knowledge of the Company, the each other parties party thereto, as and is in full force and effect, subject to rules of Law governing specific performance, injunctive relief and other equitable remedies, and the case may be, in accordance with Company or any of its terms, except Subsidiaries (to the extent that it is a party thereto or bound thereby) and, to the enforcement thereof may Knowledge of the Company, each other party thereto has performed in all material respects all obligations required to be limited performed by (A) applicable bankruptcyit under each Material Contract. Except as has not had, insolvencyand would not reasonably be expected to have, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law individually or in equity). Neither the aggregate, a Material Adverse Effect, neither the Company nor any Company Subsidiary of its Subsidiaries, and, to the Knowledge of the Company, no other party thereto, is (or, with or without notice or lapse of time or both would be) in default or breach in any material respect, or has received written notice respect under the terms of any material default such Material Contract and, to the Knowledge of the Company, no event has occurred that (with or breach (or any event that, with without notice or lapse of time or both) will, or would reasonably be expected to, (A) constitute such a material default violation or breach), under (B) give any Person the terms right to accelerate the maturity or performance of any such Material Contract or (C) give any Person the right to cancel, terminate or modify in a manner adverse to the Company or its Subsidiaries any Material Contract. To .
(iv) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, since January 2, 2021 through the date of this Agreement, neither the Company nor any of its Subsidiaries has received in writing (or, to the Knowledge of the Company, no counterparty by oral communication) any notice of any violation or breach of, default under or intention to cancel, terminate, adversely modify or not renew, any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Irobot Corp)
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any As of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A truedate hereof, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except except as set forth on Schedule 4.18 of the Company Disclosure Schedule 3.1(p)(iii)or disclosed in the Recent Company SEC Documents, neither the Company nor any of its Subsidiaries is a party toto or bound by:
(Ai) any Contract containing covenants that which contains restrictions with respect to payment of dividends or any other distribution in any way purport to restrict respect of the capital stock or prohibit, in any material respect, the business activity other equity interests of the Company or any of its Subsidiaries;
(ii) any Contract relating to development, construction, capital expenditures or purchases of material, supplies, equipment or other assets or properties (other than purchase orders for such items in the ordinary course of business) in each case requiring aggregate payments by the Company or any of its Subsidiaries or materially limit in excess of $2,000,000 during their remaining term following the freedom Closing Date;
(iii) any Contract relating to (A) Indebtedness of the Company or any of the Company its Subsidiaries thereof to engage in any line excess of business or to compete with any Person; or
$1,500,000, (B) any guarantee or assumption of other obligations or reimbursement of any maker of a letter of credit except for agreements entered into in the ordinary course consistent with past practice which agreements relate to obligations which do not exceed $1,500,000 in the aggregate for all such agreements;
(iv) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets limiting in any material respect the ability of the Company or any of its Subsidiaries to engage in the Business or to compete in such Business with any Person;
(v) any confidentiality agreements entered into by the Company Subsidiary with a Third Party since January 1, 2004 relating to any actual or potential business combination, merger, sale of the Company, a sale or other divestiture in a single or series of related transactions of more than 25% of the Company’s capital stock, assets or operations, or any other transaction that would reasonably be expected to result in a change of control of the Company (each a “Third Party Confidentiality Agreement”);
(vi) any hedging agreement or other financial agreement or arrangement designed to protect the Company or its Subsidiaries against fluctuations in commodities prices or exchange rates;
(vii) any Contract that grants or executed binding letter of intent involving the future disposition or acquisition of assets or Properties, or any merger, consolidation or similar business combination transaction;
(viii) any Contract involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement (other than Contracts with respect to a third party a power of attorney of Indebtedness), in each case involving aggregate payments or obligations by the Company or any of its Subsidiaries in excess of $500,000;
(ix) any Contract involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which has not been fully performed, other than, in each case, any such Contracts concerning the routine collection of debts entered into in the ordinary course of business and other than, in each case, providing for payments under any such Contract by the Company Subsidiaryor any of its Subsidiaries in an amount less than $75,000;
(x) other than the Articles of Incorporation, the By-Laws or applicable insurance policies, any Contract providing for continuing indemnification of any of the Company’s directors, officers or employees (except, in each case, for reimbursement of employment related costs or expenses in the ordinary course);
(xi) any management agreement to which the Company or any of its Subsidiaries is a party as manager;
(xii) any guarantee of third party obligations by the Company or any of its Subsidiaries;
(xiii) any lease for real property in which the amount of payments which the Company is required to make on an annual basis exceeds $100,000;
(xiv) any Contract with an accounting firm, consultant or advisor related to compliance with any Legal Requirements of the Securities and Exchange Commission or other jurisdictional equivalents thereto;
(xv) any Contract entered into outside of the ordinary course of business (including any lease or sublease to which the Company or any of its Subsidiaries is party as lessor or tenant outside of the ordinary course of business) not disclosed pursuant to any other clause of this Section 4.18 or involving payments or obligations in excess of $200,000 by the Company or any of its Subsidiaries which are not terminable by the Company or its Subsidiaries without penalty or premium on sixty days prior notice; The foregoing Contracts to which the Company or any of its Subsidiaries is a party or are bound are collectively referred to herein as the “Company Material Contracts.” Notwithstanding anything above, in the case of clauses (ii), (iii), (vi), (vii), (viii), (xi), and (xii), Company Material Contracts shall not include any Contract that (1) is terminable upon less than 60-days notice without penalty or premium, (2) will be fully satisfied at or prior to the Closing or (3) provides for aggregate payments by the Company or any of its Subsidiaries of less than $200,000 during the remaining term of such Contract following the Closing Date.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any of its Subsidiaries are in breach or default and, to the Company’s Knowledge, no other party to any of the Company Subsidiary Material Contracts is in breach or default or breach in any material respect, or (and no event has received written notice of any material default or breach (or any event that, occurred which with notice or the lapse of time or both, both would constitute a material default or breach), violation) under the terms of any such Material Contract. To the Knowledge of the CompanyCompany Material Contracts, no counterparty except for such defaults which, individually or in the aggregate, would not be reasonably expected to any have a Company Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 1 contract
Material Contracts. (iSet forth on Section 4.18(a) Company of the Sellers’ Disclosure Schedule 3.1(p)(i) contains is a list of all Material of the material Contracts (as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of is bound, including the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
following Contracts (ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall includetrue and complete copies of which (including all amendments, waivers and other modifications thereto) have been delivered to Buyer by Sellers:
(Ai) any Contracts with third parties which would be reasonably expected to involve payments to Applicable Contract that involves performance of services or from the Company delivery of goods or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable materials by the Company of an amount or applicable Company Subsidiary value in excess of the Contract Threshold Amount and that is not terminable on notice of sixty (60) days’ notice days or less without payment by the Company or any Company Subsidiary of any penaltyless;
(Cii) any Contracts (not described Applicable Contract of an amount or value in excess of the Contract Threshold Amount for the purchase of any materials, supplies, equipment, merchandise or services that contains an escalation clause (A) or (B) above) which would be reasonably expected to involve payments to or from that obligates the Company to purchase all or substantially all of its requirements of a Company Subsidiary particular product or service from a supplier or to make periodic minimum purchases of $1,000,000 a particular product or more service from a supplier;
(iii) any Applicable Contract of an amount or value in any twelve (12) month period, other than Contracts relating to excess of the Contract Threshold Amount for the sale of obsolete any of the assets or excess assets not required for properties other than the Company’s operations sale of Inventory in the Ordinary Course of Business and Contracts that are terminable by or for the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or grant to any Company Subsidiary Person of any penaltyoption, right of first refusal or preferential or similar right to purchase any such assets or properties;
(Div) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts Applicable Contract relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or the equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunderPerson;
(Gv) each any Applicable Contract of an amount or value in excess of the Contract Threshold Amount with customers or suppliers that contains provisions for rebates, credits, discounts or the sharing of fees (but excluding Applicable Contracts containing such provisions relating only to prompt payment of amounts due thereunder);
(vi) any Applicable Contract obligating the Company containing a “most favored nation” pricing clause;
(vii) any lease, rental or occupancy agreement, license, installment and conditional sale agreement, or other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except leases and installment and conditional sales agreements having a value per item or aggregate payments of less than the Contract Threshold Amount);
(viii) any licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, and any Applicable Contract involving the assignment, transfer pledge or encumbrance of any of the Intellectual Property Assets;
(ix) any employment contract binding on the Company which requires the Company to make annual payments in excess of the Contract Threshold Amount;
(x) any collective bargaining agreement or other Applicable Contract with any labor union or other employee representative of a group of employees;
(xi) any joint venture, partnership partnership, or any other Applicable Contract (however named) involving a sharing of profits profits, losses, costs or losses Liabilities by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(Axii) any Applicable Contract containing covenants that in any way purport to restrict or prohibit, in any material respect, the business activity of the Company or any Affiliate of the Company Subsidiaries or materially limit the freedom of the Company or any Affiliate of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; orPerson or in any geographic area;
(Bxiii) any Applicable Contract relating to the borrowing of money from the Company excluding employee advances which in the aggregate are less than $20,000;
(xiv) any Applicable Contract requiring the payment to any Person of a brokerage or sale commission or a finder’s or referral fee (other than arrangements to pay commissions or fees to employees, agents or recruiters in the Ordinary Course of Business);
(xv) any Applicable Contract relating to or evidencing the Scheduled Debt;
(xvi) any Applicable Contract pursuant to which the Company has any Liability or could have any Liability in excess of the Contract Threshold Amount;
(xvii) any performance, bid or completion bonds, surety or stand-alone indemnification agreements and other similar credit support obligations or arrangements, securing obligations in excess of the Threshold Amount;
(xviii) any Contract that grants to a third Person a right not entered into in the Ordinary Course of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or Business; and
(xix) any Contract that grants to under which the consequences of a third party a power of attorney of the Company or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv)breach, each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, termination could have or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute could reasonably be expected to have a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractAdverse Effect.
Appears in 1 contract
Material Contracts. (i) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (Except as defined in Section 3.1(p)(ii) below) to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating filed as exhibits to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating Buyer SEC Reports filed prior to the acquisition (by merger, purchase date of stock this Agreement or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company in Section 3.15 of the Buyer Disclosure Schedule 3.1(p)(iii)Schedule, and except for this Agreement and the Buyer Stockholder Voting Agreements, neither the Company Buyer nor any of its Subsidiaries is a party to:
to or is bound by any contract, arrangement, commitment or understanding (Ai) with respect to the employment of any Contract containing covenants directors or executive officers, (ii) with any consultants that are natural persons, individually involving the payment of $100,000 or more per annum, (iii) which is a “material contract” (as such terms is defined in any way purport to restrict or prohibit, in any material respect, the business activity Item 601(b)(10) of Regulation S-K of the Company SEC), (iv) which by its terms limits the ability of the Buyer or any of the Company its Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage compete in any line of business, in any geographic area or with any person, or which requires referrals of business or requires the Buyer or any of its affiliates to compete sell or market any third party’s products or services of, or make available investment opportunities to, any person on a priority, equal or exclusive basis, and in each case which limitation or requirement would reasonably be expected to be material to the Buyer on a consolidated basis, (v) with or to a labor union or guild (including any collective bargaining agreement), (vi) in the case of a Buyer Benefit Plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the other Transaction Documents, 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, (vii) which would reasonably be expected to prohibit or materially delay the consummation of the Merger or (viii) with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company Buyer’s customers among the ten customers generating the highest revenues during the four fiscal quarters prior to the date hereof under which services remain to be performed by the Buyer or any Company Subsidiary its Subsidiaries (excluding statements of work). The Buyer has previously made available to the Seller complete and accurate copies of each contract, arrangement, commitment or any Contract that grants to a third party a power of attorney understanding of the Company or any Company Subsidiary.
type described in this Section 3.15 (iv) Except collectively referred to herein as set forth on Company Disclosure Schedule 3.1(p)(ivthe “Buyer Contracts”), each Material Contract is a subject to reasonable procedures established by the Buyer to keep such information confidential. All of the Buyer Contracts are valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its termseffect, except to the extent that they have expired in accordance with their terms or if the enforcement thereof may failure to be limited by (A) applicable bankruptcyin full force and effect, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law individually or in equity)the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Buyer. Neither the Company Buyer nor any Company Subsidiary is in default or breach in of its Subsidiaries has, and to the knowledge of the Buyer, none of the other parties thereto have, violated any material respectprovision of, or has received written notice of committed or failed to perform any material default act, and no event or breach (condition exists, which with or any event thatwithout notice, with notice or lapse of time or both, both would constitute a material default or breach), under the terms of provisions of, any such Buyer Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Material Contract. To Adverse Effect on the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material ContractBuyer.
Appears in 1 contract
Sources: Merger Agreement (Digitas Inc)
Material Contracts. (ia) Company Disclosure Schedule 3.1(p)(i) contains a list of all Material Contracts (as defined in Section 3.1(p)(ii) below) to which Except for this Agreement, the Company or any Benefit Plans, agreements with customers for the provision of drilling and related services, agreements filed as exhibits to the Company Subsidiaries is a party SEC Documents or by which the Company or any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.
(ii) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts with third parties which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable by the Company or a Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(D) any Contracts under which the Company or any Company Subsidiary assumed or guaranteed any outstanding Debt of a third party (including any Company Member Interest Holder or Affiliate thereof);
(E) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses by the Company or any of the Company Subsidiaries with any other Person;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on the applicable subsection of Section 3.19(a) of the Company Disclosure Schedule 3.1(p)(iii)Schedule, as of the date hereof, neither the Company nor any of its Subsidiaries is a party toto or bound by:
(Ai) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) any Contract containing covenants that in (A) imposes any way purport to restrict restriction on the right or prohibit, in any material respect, the business activity ability of the Company or any of its Subsidiaries to compete with any other person or acquire or dispose of the Company Subsidiaries securities of another person (other than any agreement related to a potential Takeover Proposal) or materially limit (B) contains an exclusivity or “most favored nation” clause that restricts the freedom business of the Company or any of its Subsidiaries in a material manner;
(iii) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries thereof to engage in any line of business or to compete with any Person; oramong the Company’s Subsidiaries;
(Biv) any Contract that grants to a third Person a right of first refusal, option, preferential right expressly limiting or similar right to acquire properties or assets restricting the ability of the Company or any Company Subsidiary of its Subsidiaries to make distributions or any Contract that grants to a third party a power declare or pay dividends in respect of attorney of the Company their capital stock, partnership interests, membership interests or any Company Subsidiary.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiaryother equity interests, as the case may be, party thereto and, ;
(v) any Contract that by its terms calls for aggregate payments by or to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or any of its Subsidiaries of more than $50.0 million in the applicable Company Subsidiary, and, to aggregate over the Knowledge remaining term of the Company, the other parties thereto, as the case may be, in accordance with its termssuch Contract, except to the extent that the enforcement thereof may be limited by for (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally Contracts with a customer and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither any such Contract that may be cancelled by the Company nor or any of its Subsidiaries with a penalty or other liability of less than $10.0 million to the Company Subsidiary is in default or breach in any material respectof its Subsidiaries, upon notice of 60 days or less; and
(vi) any Contract that contains “earn out” or other contingent payment obligations, or has received written notice of any material default remaining indemnity or breach (or any event thatsimilar obligations, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty that could reasonably be expected to any Material Contract is result in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to payments after the date hereof a true and correct copy by the Company or any of each Material Contractits Subsidiaries in excess of $50.0 million.
Appears in 1 contract
Material Contracts. (ia) Except for this Agreement, Section 3.20 of the Company Disclosure Schedule 3.1(p)(i) Letter contains a list complete and correct list, as of all Material Contracts (as defined the date of this Agreement, of each Contract described below in this Section 3.1(p)(ii3.20(a) below) to under which the Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is subject, in each case as of the date of this Agreement (all Contracts of the type described in this Section 3.20(a) being referred to herein as the “Company Subsidiaries is a party or by which Material Contracts”):
(i) each Contract that limits in any material respect the freedom of the Company or any of its affiliates to compete in any line of business, therapeutic area or geographic region, or with any Person, including any Contract that requires the Company Subsidiaries is otherwise bound. A trueand its affiliates to work exclusively with any Person in any therapeutic area or geographic region, correct or which by its terms would so limit the freedom of Parent and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.affiliates after the Effective Time;
(ii) Material Contracts of any partnership, joint venture, strategic alliance, collaboration, co-promotion or research and development project Contract which is material to the Company and the Company Subsidiaries its Subsidiaries, taken as a whole;
(“Material Contracts”iii) shall include:
each Contract not otherwise described in any other subsection of this Section 3.20(a) that (A) any Contracts with third parties which would be is reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(B) any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment future expenditures by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described more than $25,000,000 in clause (A) or the one-year period following the date hereof and (B) above) which would cannot be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month period, other than Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts that are terminable terminated by the Company or a such Company Subsidiary on less than sixty (60) days’ notice without material payment or less without penalty, other than ordinary course product or active ingredient purchase contracts;
(iv) each acquisition or divestiture Contract or material licensing agreement that contains representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $25,000,000 in the twelve (12) month period following the date hereof;
(v) each Contract relating to outstanding Indebtedness of the Company or its Subsidiaries for borrowed money or any financial guaranty thereof (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $15,000,000 other than (A) Contracts solely among the Company and any wholly owned Company Subsidiary, (B) financial guarantees entered into in the ordinary course of business consistent with past practice not exceeding $1,000,000, individually or in the aggregate (other than surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practice in each case to the extent not drawn upon), and (C) any Contracts relating to Indebtedness explicitly included in the consolidated financial statements in the Company SEC Documents;
(vi) each Contract between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate (other than a wholly owned Company Subsidiary) of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any penaltyContract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member, but not including any Company Benefit Plans;
(Dvii) any Contract (excluding (A) licenses for commercial off the shelf computer software that are generally available on nondiscriminatory pricing terms and (B) service Contracts related to pre-clinical or clinical development of any medicine to the extent the licenses contained therein are incidental to such Contracts, immaterial, non-exclusive and granted in the ordinary course of business) under which the Company or any Company Subsidiary assumed is granted any license, option or guaranteed other right or immunity (including a covenant not to be sued or right to enforce or prosecute any outstanding Debt patents) with respect to any Intellectual Property of a third party (including any party, which Contract is material to the Company Member Interest Holder or Affiliate thereof)and the Company Subsidiaries, taken as a whole;
(Eviii) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale Contract (excluding licenses contained in service Contracts related to pre-clinical or other derivative Contracts involving hydrocarbons or other commodities;
(F) clinical development of any Contracts relating medicine to the acquisition (by mergerextent the licenses contained therein are incidental to such Contract, purchase immaterial, non-exclusive and granted in the ordinary course of stock or assets or otherwisebusiness) by under which the Company or any Company Subsidiary of has granted to a third party any operating business license, option or equity interests of other right or immunity (including a covenant not to be sued or right to enforce or prosecute any other Person patents) with respect to any Intellectual Property, which contain continuing obligations of Contract is material to the Company and the Company Subsidiaries, taken as a whole;
(ix) any stockholders, investors rights, registration rights or similar agreement or arrangement;
(x) any Contract (A) pursuant to which a third party supplies the Company or the Company Subsidiaries with active ingredients for any Company Subsidiary Key Product, and which could reasonably require Contract is material to the payment of monies by Company and the Parent Subsidiaries, taken as a whole or (B) requiring the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership purchase a minimum quantity of goods relating to any product or any other Contract involving a sharing of profits or losses product candidate that is reasonably expected to involve future expenditures by the Company or any of the Company Subsidiaries with any other Personof more than $25,000,000 in the one-year period following the date hereof;
(H) each Contract with any director, officer, member, employee or Affiliate of the Company or any of the Company Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for a line of credit.
(iii) Except as set forth on Company Disclosure Schedule 3.1(p)(iii), neither the Company nor any of its Subsidiaries is a party to:
(Axi) any Contract containing covenants that in any way purport pursuant to restrict or prohibit, in any material respect, the business activity of the Company or any of the Company Subsidiaries or materially limit the freedom of the Company or any of the Company Subsidiaries thereof to engage in any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of which the Company or any Company Subsidiary has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones, or (B) payment of royalties or other amounts calculated based upon any Contract that grants to a third party a power of attorney revenues or income of the Company or any Company Subsidiary, in each case (x) which payments after the date hereof would reasonably be expected to be more than $25,000,000 in the twelve (12) month period following the date hereof and (y) that cannot be terminated by the Company or such Company Subsidiary without penalty without more than sixty (60) days’ notice without material payment or penalty;
(xii) any Contract that relates to any swap, forward, futures, or other similar derivative transaction with a notional value in excess of $5,000,000;
(xiii) any material collective bargaining agreement or other material Contract with any labor union;
(xiv) any Contract involving the settlement of any action or threatened action (or series of related actions) (A) which will (x) involve payments after the date hereof of consideration in excess of $15,000,000 or (y) impose monitoring or reporting obligations to any other Person outside the ordinary course of business or (B) with respect to which material conditions precedent to the settlement have not been satisfied;
(xv) any Contract with any Governmental Entity, excluding settlement agreements described in the Company SEC Documents, sales or supply agreements entered into in the ordinary course of business and tolling agreements entered into in connection with investigations by Governmental Entities; and
(xvi) any Contract not otherwise described in any other subsection of this Section 3.20(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company.
(ivb) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in breach of or default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material ContractAdverse Effect. To the Knowledge knowledge of the Company, as of the date hereof, no counterparty other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or breachdefault would reasonably be expected to have, individually or in any material respectthe aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is a valid and binding obligation of the Company or the Company Subsidiary which is party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect, except that (i) such Material Contract. The Company has made available enforcement may be subject to Parent prior applicable bankruptcy, insolvency, examinership, 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 date hereof a true and correct copy discretion of each Material Contractthe court before which any proceeding therefor may be brought.
Appears in 1 contract
Material Contracts. (a) For purposes of this Agreement, a “Material Contract” shall mean all of the following Contracts to and by which the Company or any of its Subsidiaries is a party or is bound and has continuing material obligations:
(i) any requirements, minimum-purchase, “take or pay,” or other firm-commitment Contract for the purchase of raw materials, components, parts or subassemblies (including, without limitation, polysilicon, ingots, wafers, solar cells, solar panels and system components), other than any such Contracts that (x) may be cancelled without material liability to the Company or its Subsidiaries upon notice of ninety (90) days or less or (y) are not, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole;
(ii) any Contract for a third Person subcontractor which manufactures or assembles for the Company or any Subsidiary solar cells, panels, power systems or other products in each case excluding any supplier of raw materials or components (including inverters), other than any such Contract pursuant to which the Company is not reasonably likely to make payments in excess of $5,000,000 per year in 2011 or any calendar year thereafter;
(iii) any Contract containing any covenant (A) limiting the right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any material technology owned by the Company or any of its Subsidiaries or Company Intellectual Property or to compete with any Person in any line of business, in each case other than any Contracts identified on Section 3.13(a)(xvi) of the Company Disclosure Schedule 3.1(p)(iSchedule; (B) contains prohibiting or limiting the right of the Company or any of its Subsidiaries to engage in business with any Person to (x) distribute or offer any products or services (including, any solar cells, panels and power systems) or (y) purchase or otherwise obtain any raw materials, components, parts or subassemblies (including, polysilicon, ingots, wafers, solar cells, solar panels and system components); or (C) granting any exclusive rights to a list third party, in each case other than any such Contracts that (x) may be cancelled without material liability to the Company or any of all Material Contracts its Subsidiaries upon notice of no more than ninety (90) days or (y) are not material to the Company and its Subsidiaries, taken as defined a whole;
(iv) any Contract (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a material amount of assets other than in Section 3.1(p)(iithe ordinary course of business or (B) below) pursuant to which the Company or any of its Subsidiaries will acquire any material ownership interest in any other Person or other business enterprise other than the Company Company’s Subsidiaries is a party or by which the Company or and any of the Company Subsidiaries is otherwise bound. A true, correct and complete copy of each Material Contract has been furnished or made available to Parent or its representatives.Solar SPEs;
(iiv) Material Contracts of the Company and the Company Subsidiaries (“Material Contracts”) shall include:
(A) any Contracts for the distribution of Company products with third parties which would be reasonably expected to involve payments to or the top two components distributors in effect as of the date of this Agreement, (B) that are form agreements for the resale of Company products with dealers in the US, Italy and Germany, (C) with the top five (5) commercial direct customers with contracts booked and pending completion, in each case excluding quotes and purchase orders with such distributors, resellers, and customers and (D) with the top five (5) utility power plant customers measured by revenue in 2010 (cumulative revenue from the Company or a Company Subsidiary of $1,000,000 or more such customer in any twelve (12) month period, pursuant to which the Company or a Company Subsidiary gathers, processes, treats, transports, stores, sells or purchases hydrocarbons or the products therefromEPC and development);
(Bvi) any Contracts Contract containing any obligation to provide support or maintenance for the construction Company Products outside of gathering or other pipeline systems or processing, compression, treating or storage facilities other than any such Contracts that are reasonably expected to require aggregate payments the ordinary course of less than $2,500,000 or are terminable by the Company or applicable Company Subsidiary on sixty (60) days’ notice or less without payment by the Company or any Company Subsidiary of any penalty;
(C) any Contracts (not described in clause (A) or (B) above) which would be reasonably expected to involve payments to or from the Company or a Company Subsidiary of $1,000,000 or more in any twelve (12) month periodbusiness consistent with past practice, other than those Contracts relating to the sale of obsolete or excess assets not required for the Company’s operations in the Ordinary Course of Business and Contracts obligations that are terminable by the Company or any of its Subsidiaries on no more than ninety (90) days notice without liability or financial obligation to the Company or its Subsidiaries;
(vii) any mortgages, indentures, guarantees, Loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case in excess of $5,000,000, other than accounts receivables and payables in the ordinary course of business consistent with past practice;
(viii) any Contract related to the settlement of any Legal Proceeding that contains a material restriction on the business or operations of the Company Subsidiary on sixty or any of its Subsidiaries;
(60ix) days’ notice any Contract which grants any right of first refusal, right of first offer or less without similar right to acquire any material asset, right or property of the Company or any of its Subsidiaries, other than conditional sales contracts with respect to Solar SPEs entered into in the ordinary course of business;
(x) any Contract which limits the payment of dividends by the Company or any Company Subsidiary of any penaltyits Subsidiaries;
(Dxi) any Contracts Contract (i) which governs the rights or obligations of the parties to any Joint Venture identified or required to be identified on Section 3.5(a)(ii) of the Company Disclosure Schedule or (ii) requiring the sharing of revenues that is material to the Company, other than with respect to Solar SPEs;
(xii) any Contract which relates to an acquisition, divestiture, merger or similar transaction and which contains any material obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, other than with respect to sales of Solar SPEs in the ordinary course of business;
(xiii) any Contract with a union, trade union, works council, group of employees or independent contractors, or any other labor-relations body or entity, for collective bargaining with respect to the respective employees or independent contractors of the Company or any of its Subsidiaries, except for any such Contract that is required by Law (“Collective Bargaining Agreements”);
(xiv) any Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any product or service to any third party on a most favored nation (MFN) basis or similar pricing basis;
(xv) any Contract pursuant to which the Company or any Subsidiary has agreed to perform any obligation of a third party under any Environmental Law or has agreed to indemnify or defend any third party from any Loss or Liability arising under any Environmental Law or with respect to any Hazardous Substance, other than in the ordinary course of business consistent with past practice;
(xvi) any Contract that is material to the business of the Company and its Subsidiaries, taken as a whole, (i) under which the Company or any Company Subsidiary assumed of its Subsidiaries is granted the right to use or guaranteed any outstanding Debt a license with respect to Intellectual Property Rights of a third party Person, other than (including A) non-exclusive trademark licenses or (B) licenses or services Contracts for commercially available software in binary form or available on an application service provider, “software as a service” or similar basis or (C) licenses for any Open Source Materials, or (ii) under which the Company Member Interest Holder or Affiliate thereofany of its Subsidiaries has licensed to others the right to use or agreed to transfer to others any of the Company Intellectual Property or rights with respect thereto, other than pursuant to Contracts with (A) any customer, dealer, sales representative, reseller or distributor or (B) any commercial partner for the evaluation, certification or testing of Company Products (“Out-Licenses,” and together with the Contracts excluded pursuant to (ii)(A) or (ii)(B) above, “Outbound IP Contracts”);
(Exvii) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving hydrocarbons or other commodities;
(F) any Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Company Subsidiary of any operating business or equity interests of any other Person which contain continuing obligations of the Company or any Company Subsidiary and which could reasonably require the payment of monies by the Company or any Company Subsidiary to the applicable sellers thereunder;
(G) each joint venture, partnership or any other Contract involving a sharing of profits or losses that provides by its terms for payment obligations by the Company or any of its Subsidiaries of $10,000,000 or more in any current or future individual fiscal year that is not terminable by the Company or its Subsidiaries with any other Personupon notice of ninety (90) days or less without material liability to the Company or its Subsidiary and is not disclosed pursuant to clauses (i) through (xvi) above;
(Hxviii) any Contract, or group of Contracts with a Person (or group of affiliated Persons), the termination or breach of which would have or would be reasonably expected to have a Material Adverse Effect and is not disclosed pursuant to clauses (i) through (xvii) above; and
(xix) any other Contract that is not disclosed pursuant to clauses (i) through (xviii) above that would be a “material contract” (as such term is defined in Item 601(b)(10) (other than Item 601(b)(10)(iii) of Regulation S-K of the SEC) with respect to the Company and its Subsidiaries.
(b) Section 3.13 of the Company Disclosure Schedule contains a complete and accurate list, as of the date hereof, of all Material Contracts.
(c) Except for any Material Contract which expires in accordance with its terms, each Material Contract set forth or required to be set forth in Section 3.13 of the Company Disclosure Schedule is valid and binding on the Company (and/or each such Subsidiary of the Company party thereto) and is in full force and effect, except for such failures to be in full force and effect that would not, individually or in the aggregate, be material to the Company and its Subsidiaries taken as a whole. Neither the Company nor any of its Subsidiaries party thereto, nor, to the Knowledge of the Company, any other party thereto, is in breach of, or default under, any Material Contract, and no event has occurred that with any director, officer, member, employee notice or Affiliate lapse of time or both would constitute such a breach or default thereunder by the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any other party thereto, except for such breaches and defaults that would not, individually or in the aggregate, be material to the Company and its Subsidiaries; and
(I) the Loan Agreements and each other indenture, mortgage, promissory note or other agreement or commitment for the borrowing of money, or for taken as a line of creditwhole.
(iiid) Except With respect to each Contract pursuant to which the Company or any of its Subsidiaries is bound, or has committed, to provide, whether as set forth on a prime contractor or subcontractor, any product or service to any Governmental Authority (each, a “Government Contract”): (i) there is no pending audit or investigation by any Governmental Authority of the Company, its Subsidiaries or any current director, officer or employee or, to the Knowledge of the Company, any former director, officer or employee of the Company Disclosure Schedule 3.1(p)(iii)or its Subsidiaries, with respect to any alleged bribes, directly or indirectly, irregularity, misstatement or omission arising under or relating to a Government Contract; and (ii) there is no pending, and neither the Company nor any of its Subsidiaries is a party to:
(A) any Contract containing covenants that in any way purport to restrict or prohibithas, in the past five (5) years, received written notice of any material respect, the business activity claim by a Governmental Authority of competent jurisdiction against the Company or any of its Subsidiaries, for any of the Company Subsidiaries following: (1) defective pricing, (2) noncompliance, (3) fraud, (4) false claims or materially limit false statements, (5) unallowable costs, including those that may be included in indirect cost claims for prior years that have not yet been finally agreed to by the freedom of Governmental Authority or (6) the performance or administration by the Company or any of the Company its Subsidiaries thereof to engage in of material Contracts or subcontracts for any line of business or to compete with any Person; or
(B) any Contract that grants to a third Person a right of first refusal, option, preferential right or similar right to acquire properties or assets of the Company or any Company Subsidiary or any Contract that grants to a third party a power of attorney of the Company or any Company SubsidiaryGovernmental Authority.
(iv) Except as set forth on Company Disclosure Schedule 3.1(p)(iv), each Material Contract is a valid and binding agreement of the Company or the Company Subsidiary, as the case may be, party thereto and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect and is enforceable against the Company or the applicable Company Subsidiary, and, to the Knowledge of the Company, the other parties thereto, as the case may be, in accordance with its terms, except to the extent that the enforcement thereof may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither the Company nor any Company Subsidiary is in default or breach in any material respect, or has received written notice of any material default or breach (or any event that, with notice or lapse of time or both, would constitute a material default or breach), under the terms of any such Material Contract. To the Knowledge of the Company, no counterparty to any Material Contract is in default or breach, in any material respect, of such Material Contract. The Company has made available to Parent prior to the date hereof a true and correct copy of each Material Contract.
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