Material Contracts. Section 3.10 of the Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”): (a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000; (b) collective bargaining agreements and any other contracts with any labor unions; (c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year; (d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person; (e) the Leases; (f) Contracts with Material Suppliers; (g) Contracts with Material Customers; (h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person; (i) Contracts that contain or provide for “most favored nations” terms; (j) Contracts with any Governmental Authority; (k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business); (l) Contracts providing for the settlement of any material Proceeding; (m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person. (n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and (o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 4 contracts
Sources: Merger Agreement (Revelyst, Inc.), Merger Agreement (Outdoor Products Spinco Inc.), Agreement and Plan of Merger (Outdoor Products Spinco Inc.)
Material Contracts. Section 3.10 of the (a) Company Disclosure Schedule contains a list 4.13(a) sets forth, by reference to the applicable subsection of this Section 4.13(a), all of the following types of Contracts (and each amendment or modification thereto) to which any Target the Company is a party, party or by which such Target Company it or its assets or properties or assets are boundbound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and any current or former officer, director, member or Affiliate of the Company;
(ii) Contracts with Material Customers, any labor union or association representing any Employee of the Company;
(iii) Contracts pursuant to which for the sale of any Target of the assets of the Company (i) made payments other than in the Ordinary Course of Business or for the grant to any third party Person of any preferential rights to purchase any of its assets;
(iv) Contracts for joint ventures, strategic alliances, partnerships, or sharing of profits or proprietary information;
(v) Contracts containing covenants of the Company not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any Person with respect to employment or covenants of any other Person not to compete with the twelve Company in any line of business or in any geographical area or not to solicit or hire any Person with respect to employment;
(12vi) month period prior Contracts relating to the date hereofacquisition (by merger, purchase of stock or assets or otherwise) by the Company of any operating business or material assets or the capital stock of any other Person;
(vii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of the Company, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(viii) each purchase Contract giving rise to Liabilities of the Company in excess of $500,000; 25,000;
(ix) each Contract providing for payments by or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, Company in excess of $500,00025,000 in any fiscal year or $50,000 in the aggregate during the term thereof;
(bx) collective bargaining agreements and any other contracts with any labor unionsall Contracts obligating the Company to provide or obtain products or services for a period of one year or more or requiring the Company to purchase or sell a stated portion of its requirements or outputs;
(cxi) Contracts under which the Company has made advances or loans to any other Person, except advances to Employees of the Company in the Ordinary Course of Business;
(xii) Contracts providing for severance, retention, change in control or other than Benefit Planssimilar payments;
(xiii) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide providing annual cash compensation in excess of $150,000 per year50,000;
(dxiv) management Contracts evidencing Indebtedness of the Target Companies and Contracts with independent contractors or consultants (or similar arrangements) in excess of $50,000, including any loan 50,000 that are not cancelable without penalty or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Personfurther payment and without more than thirty (30) days’ notice;
(exv) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by the LeasesCompany;
(fxvi) Contracts with Material Suppliers(or group of related contracts) which involve the expenditure of more than $25,000 annually or $100,000 in the aggregate or require performance by any party more than one year from the date hereof unless in the Ordinary Course of Business;
(gxvii) all Intellectual Property Licenses, royalty Contracts with Material Customersand other Contracts relating to any Intellectual Property (except licenses pertaining to “off-the-shelf” commercially available Software used pursuant to shrink-wrap or click-through license grants on reasonable terms for a license fee of no more than $1,000);
(hxviii) Contracts containing any covenant of a Target Company that restricts a Target Company incentives, grants or any of its Affiliates other agreements from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(kxix) Contracts entered into in connection with any mergerfor services from lawyers, consolidation or other business combinationaccountants, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith financial advisors and consultants (other than sales of assets in the ordinary course of business“Professional Service Providers”);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(oxx) Contracts related that are otherwise material to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aCompany.
(b) Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against the applicable Target Company and, to binding obligation of the Company’s Knowledge, and of the other parties thereto thereto, enforceable against each of them in accordance with their termsits terms and, upon consummation of the transactions contemplated by this Agreement, shall, except to the extent enforcement may be affected by Enforceability Exceptionsas otherwise stated in Company Disclosure Schedule 4.13(b), continue in full force and effect without penalty or other adverse consequence. Each Target The Company that is a party to a Material Contract is not in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such default under any Material Contract. Neither the Company , nor, to the Knowledge of the Company’s Knowledge, is any other party thereto, is to any Material Contract in breach of or default under (thereunder, and, to the Knowledge of the Company, no event has occurred that with the lapse of time or is alleged to be in the giving of notice or both would constitute a material breach or default under)by the Company or any other party thereunder. Notwithstanding the generality of the foregoing, the Company is not in material default under the MOSA nor, to the Knowledge of the Company, is any other party to the MOSA in breach of or default thereunder, and, to the Knowledge of the Company, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default by the Company or any other party thereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto, and no such party has given notice of any significant dispute with respect to any Material Contract. The Company has, and will transfer to Purchaser at the Closing, good and valid title to the Material Contracts, free and clear of all Liens other than Permitted Exceptions. The Company has neither provided nor received delivered to Purchaser true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto. The Company is not and at Closing shall not be, obligated to make any notice payments to Professional Service Providers related to the Transaction, the wind down and liquidation of the Business or otherwise other than as set forth on Company Disclosure Schedule 4.13(a)(xix) or as approved by Newco.
(c) Company Disclosure Schedule 4.13(c) sets forth a complete and accurate list of all consents, waivers, approvals or authorizations of any intention Person required to terminate any transfer the Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderContracts.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Western Iowa Energy, L.L.C.), Asset Purchase Agreement (Central Iowa Energy, LLC), Asset Purchase Agreement (Central Iowa Energy, LLC)
Material Contracts. Section 3.10 (a) Part 2.9(a) of the Company Disclosure Schedule contains a list lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the following types of Contracts (Company Disclosure Schedule) that is in effect, and each amendment that has not expired or modification thereto) to which any Target Company is a party, or by which such Target Company or been terminated in accordance with its properties or assets are boundterms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such ContractsContracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made any Contract (or group of related Contracts), other than a Company Plan, that requires future payments to any third party in the twelve (12) month period prior by or to the date hereof, Company in excess of $500,000; 100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect Contract relating to the acquisition or disposition by the Company of any business, operating business or assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply (other than pursuant to non-disclosure agreements exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in connection therewith the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than sales of assets immaterial advances to employees and consultants in the ordinary course Ordinary Course of businessBusiness) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(lv) Contracts providing for the settlement of any material Proceedingcollective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(mvi) limited liability company agreementsany offer letter, partnership agreementsemployment agreement, Tax Sharing Agreements independent contractor agreement or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company other Contract with any other Person.
(n) outstanding powers-of-attorney granted by current Company Service Provider pursuant to which the Company for any purpose whatsoever; and
is or reasonably could be obligated to pay compensation (oexcluding variable compensation) Contracts related to capital projects and capital expenditures in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or $250,000 in the aggregate. Other ; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Intellectual Property Licenses that Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not required in violation of any provision of, or taken or failed to disclose on Section 3.17(a) take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of, any Material Contract, and, to the Knowledge of the Disclosure ScheduleCompany, no other party to such Material Contract is in violation of any provision, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Purchaser Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material , but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 3 contracts
Sources: Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Rafael Holdings, Inc.)
Material Contracts. Section 3.10 of (a) Schedule 6.12(a) sets forth a true, correct and complete list of, and the Disclosure Schedule contains a list of the following types of Contracts (Company has made available to HUDA, true, correct and complete copies of, each amendment or modification thereto) Contract to which any Target Company is a party, party or by which such any Target Company Company, or any of its properties or assets are bound, as of the date of this Agreement bound (such Contracts, together with the Intellectual Property Licenses, eacheach Contract required to be set forth on Schedule 6.12(a), a “Company Material Contract”):) that:
(ai) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which contains covenants that limit in any material respect the ability of any Target Company (iA) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging compete in any line of business or with any Person or in any geographic region with area or to sell, or provide any service or product or solicit any Person, other than in respect of customary non-disclosure agreements entered into by any Target Company in the ordinary course of business or (iiB) soliciting any customers, suppliers, employees to purchase or contractors of acquire an interest in any other Person, or (iii) competing with any Person;
(iii) Contracts that contain relates to the formation, creation, operation, management or provide for “most favored nations” termscontrol of any joint venture, profit-sharing, partnership, limited liability company or other similar agreement or arrangement;
(jiii) Contracts with evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any Governmental Authorityasset) of any Target Company having an outstanding principal amount in excess of $1,000,000, other than those incurred in the ordinary course of business of the Target Companies on behalf of a customers or any ordinary course transactions that are settled on a daily basis;
(kiv) Contracts entered into involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in connection excess of $1,000,000 (other than in the ordinary course of business consistent with past practice) or shares or other equity interests of any Target Company or another Person;
(v) relates to any merger, consolidation or other business combination, combination with any other Person or with respect to the acquisition or disposition of any business, other entity or its business or material assets or securitiesthe sale of any Target Company, its business or material assets;
(vi) by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Target Companies under such Contract or Contracts of at least $1,000,000 per year or $2,000,000 in the aggregate;
(vii) is with any equity Top Customer or debt investment Top Vendor;
(viii) obligates any Target Company to provide continuing indemnification or a guarantee of obligations of a third party after the Signing Date in excess of $1,000,000;
(ix) is between any (A) Target Company and (B) any directors, managers, officers or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith employees of a Target Company (other than sales at-will employment, assignment of assets Intellectual Property or confidentiality arrangements entered into in the ordinary course of business) or any other Related Person, including all non-competition, severance and indemnification agreements;
(x) obligates any Target Company to make any capital commitment or expenditure in excess of $1,000,000 (including pursuant to any joint venture);
(lxi) Contracts providing for the relates to a material settlement of any material Proceeding;
Action entered into in the within two (m2) limited liability company agreements, partnership agreements, Tax Sharing Agreements years prior to the Signing Date or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by under which any Target Company has outstanding obligations (other than customary confidentiality or non-disparagement obligations); or
(xii) that will be required to be filed with any other Personthe Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(nb) outstanding powers-of-attorney granted by Except as disclosed in Schedule 6.12(b), with respect to each Company Material Contract: (i) such Company Material Contract is valid and binding and enforceable in all respects against the Target Company for any purpose whatsoever; party thereto and
(o) Contracts related , to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) Knowledge of the Disclosure ScheduleCompany, the Company has made available to Purchaser true each other party thereto, and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and(except, to the Company’s Knowledgein each case, the other parties thereto in accordance with their terms, except to the extent as such enforcement may be affected limited by the Enforceability Exceptions. Each ), in each case, except as would not be reasonably expected to be, individually or in the aggregate, material to the Target Companies, taken as a whole; (ii) the consummation of the Transactions will not affect the validity or enforceability of any Company Material Contract; (iii) no Target Company that is a in breach or default in any material respect; (iv) to the Knowledge of the Company, no other party to a such Company Material Contract is in compliance breach or default in all any material respects with the terms and requirements of such Material Contract andrespect; (v) no Target Company has received written or, to the Knowledge of the Company’s Knowledge, each other Person that is oral notice of an intention by any party to any such Company Material Contract is in compliance in all material respects with the terms and requirements of to terminate such Company Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under ; and (or is alleged to be in breach or default under). The vi) no Target Company has neither provided nor received waived any notice of material rights under any intention to terminate any such Company Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 3 contracts
Sources: Business Combination Agreement (Hudson Acquisition I Corp.), Business Combination Agreement (Hudson Acquisition I Corp.), Business Combination Agreement (Hudson Acquisition I Corp.)
Material Contracts. (a) Subsections (i) through (xii) of Section 3.10 4.18(a) of the Disclosure Schedule contains a list of Letter lists the following types of Contracts (contracts and each amendment or modification thereto) agreements to which the Company or any Target Company Subsidiary is a party, or by which party (such Target Company or its properties or assets contracts and agreements as are bound, as required to be set forth in Section 4.18(a) of the date of this Agreement (such Contracts, together with Disclosure Letter being the Intellectual Property Licenses, each, a “Material ContractContracts”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) each “material contract” (as such term is defined in Item 610(b)(10) of Regulation S-K of the SEC) with respect to the Company and its Subsidiaries;
(ii) each contract and agreement, whether or not made payments in the ordinary course of business, that contemplates an exchange of consideration with a value of more than $500,000, in the aggregate, over the term of such contract or agreement;
(iii) all contracts and agreements evidencing indebtedness for borrowed money;
(iv) all joint venture, partnership, and business acquisition or divestiture agreements
(v) all agreements relating to issuances of securities of the Company or any Subsidiary, other than agreements relating to the issuance of awards under the Company Stock Plans;
(vi) all contracts and agreements that obligate the Company or any Subsidiary to indemnify any third party in the twelve (12) month period prior for amounts that could be material to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000Company;
(bvii) collective bargaining all exclusive distribution contracts to which the Company or any Subsidiary is a party;
(viii) all Licenses (other than (1) nondisclosure agreements entered into in the ordinary course of business, (2) licenses of commercially available, off-the-shelf or shrink-wrap computer software having a value less than $500,000, and (3) agreements entered into with the Company’s customers or prospective customers that do not materially differ from Company’s standard form agreements attached to Section 4.14(b) of the Disclosure Letter);
(ix) 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 Subsidiary is a party and any other contracts with contract that compensates any labor unionsperson based on any sales by the Company or a Subsidiary;
(cx) Contracts all management contracts and contracts with other consultants (other than Benefit Plans) excluding contracts for the employment or engagement service), including any contracts involving the payment of any officer, employee royalties or other Person on amounts calculated based upon the revenues or income of the Company or any Subsidiary or income or revenues related to any product of the Company or any Subsidiary to which the Company or any Subsidiary is a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearparty;
(dxi) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including all contracts and agreements with any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant Governmental Authority to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any Subsidiary is a party; and
(xii) all contracts and agreements that limit, or purport to limit, the ability of its Affiliates from (i) engaging the Company or any Subsidiary to compete in any line of business or geographic region with any Person, (ii) soliciting person or entity or in any customers, suppliers, employees geographic area or contractors during any period of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Persontime.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 3 contracts
Sources: Merger Agreement (Stmicroelectronics Nv), Merger Agreement (Genesis Microchip Inc /De), Merger Agreement (Genesis Microchip Inc /De)
Material Contracts. (a) Section 3.10 4.21 of the Company Disclosure Schedule contains sets forth a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement of each of the following Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound (each such ContractsContract listed or required to be so listed, together with and each of the Intellectual Property Licenses, eachfollowing Contracts to which the Company or any of its Subsidiaries becomes a party or by which it becomes bound after the date of this Agreement, a “Company Material Contract”):
(ai) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts any Contract pursuant to which the Company or any Target Company (i) made of its Subsidiaries incurred aggregate payment obligations or received aggregate payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or 6,500,000 during the twelve-month period ended June 30, 2024;
(ii) received payments from any third party Contract that (A) limits or purports to limit, in any material respect, the twelve freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the freedom of Parent, the Surviving Corporation or any of their respective Affiliates after the Closing or (12B) month prior contains any material exclusivity or material “most favored nation” obligations, material rights of first refusal, material rights of first offer, material put or call rights or other restrictions or similar provisions that are binding on the Company or any of its Subsidiaries (or, after the Effective Time, that would be binding on Parent, the Surviving Corporation or any of their respective Affiliates);
(iii) promissory notes, loan agreements, indentures, evidences of indebtedness or other Contracts providing for or relating to the date hereof, lending of money in excess of $500,000;
(biv) collective bargaining agreements and any other contracts with any labor unionsmaterial joint venture, profit-sharing, partnership, stockholders, investors rights, registration rights or similar Contract;
(cv) any Contracts (other than Benefit Plans) for the employment or engagement series of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) related Contracts entered into in connection with any mergersince May 16, consolidation or other business combination2022, or with respect relating to the acquisition or disposition of any the business, assets or securitiessecurities of any Person or any business for a price in excess of $10,000,000 (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(vi) any Contracts or other transactions with any (A) executive officer or director of the Company, (B) record or, to the knowledge of the Company, beneficial owner of five percent (5%) or more of the voting securities of the Company (excluding Parent or any of its Subsidiaries), or (C) affiliates or “associates” (or members of any equity of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the 1934 Act) of any such executive officer, director or debt investment in beneficial owner;
(vii) any material Contract pursuant to which the Company or any loan of its Subsidiaries (A) grants any license, right or covenant not to sue with respect to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith Company Intellectual Property (other than sales of assets non-exclusive licenses granted in the ordinary course of business) or (B) obtains any license, right or covenant not to sue with respect to any Intellectual Property owned by any other Person (other than non-exclusive licenses to commercial off-the-shelf software which are generally available on non-discriminatory pricing terms);
(lviii) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverMaterial Lease; and
(oix) Contracts related any other Contract required to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that be filed by the Company is not required pursuant to disclose on Section 3.17(aItem 601(b)(10) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.Regulation S-K.
Appears in 3 contracts
Sources: Merger Agreement (Aspen Technology, Inc.), Merger Agreement (Emerson Electric Co), Merger Agreement (Aspen Technology, Inc.)
Material Contracts. Section 3.10 of the (a) Company Disclosure Schedule contains a list 4.14(a) sets forth, by reference to the applicable subsection of this Section 4.14(a), all of the following types of Contracts (and each amendment or modification thereto) to which any Target the Company is a party, party or by which such Target Company it or its assets or properties or assets are boundbound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and any current or former officer, manager, member or Affiliate of the Company;
(ii) Contracts with Material Customers, any labor union or association representing any Employee of the Company;
(iii) Contracts pursuant to which for the sale of any Target of the Company (i) made payments Assets other than in the Ordinary Course of Business or for the grant to any third party Person of any preferential rights to purchase any of its assets;
(iv) Contracts for joint ventures, strategic alliances, partnerships, or sharing of profits or proprietary information;
(v) Contracts containing covenants of the Company not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any Person with respect to employment or covenants of any other Person not to compete with the twelve Company in any line of business or in any geographical area or not to solicit or hire any Person with respect to employment;
(12vi) month period prior Contracts relating to the date hereofacquisition (by merger, purchase of stock or assets or otherwise) by the Company of any operating business or material assets or the capital stock of any other Person;
(vii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of the Company, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(viii) each purchase Contract giving rise to Liabilities of the Company in excess of $500,000; 25,000;
(ix) each Contract providing for payments by or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, Company in excess of $500,00025,000 in any fiscal year or $50,000 in the aggregate during the term thereof;
(bx) collective bargaining agreements and any other contracts with any labor unionsall Contracts obligating the Company to provide or obtain products or services for a period of one year or more or requiring the Company to purchase or sell a stated portion of its requirements or outputs;
(cxi) Contracts under which the Company has made advances or loans to any other Person, except advances to Employees of the Company in the Ordinary Course of Business;
(xii) Contracts providing for severance, retention, change in control or other than Benefit Planssimilar payments;
(xiii) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide providing annual cash compensation in excess of $150,000 per year50,000;
(dxiv) management Contracts evidencing Indebtedness of the Target Companies and Contracts with independent contractors or consultants (or similar arrangements) in excess of $50,000, including any loan 50,000 that are not cancelable without penalty or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Personfurther payment and without more than thirty (30) days’ notice;
(exv) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by the LeasesCompany;
(fxvi) Contracts with Material Suppliers(or group of related contracts) which involve the expenditure of more than $25,000 annually or $100,000 in the aggregate or require performance by any party more than one year from the date hereof unless in the Ordinary Course of Business;
(gxvii) all Intellectual Property Licenses, royalty Contracts with Material Customersand other Contracts relating to any Intellectual Property (except licenses pertaining to “off-the-shelf” commercially available Software used pursuant to shrink-wrap or click-through license grants on reasonable terms for a license fee of no more than $1,000);
(hxviii) Contracts containing any covenant of a Target Company that restricts a Target Company incentives, grants or any of its Affiliates other agreements from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(kxix) Contracts entered into in connection with any mergerfor services from lawyers, consolidation or other business combinationaccountants, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith financial advisors and consultants (other than sales of assets in the ordinary course of business“Professional Service Providers”);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(oxx) Contracts related that are otherwise material to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aCompany.
(b) Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against the applicable Target Company and, to binding obligation of the Company’s Knowledge, and of the other parties thereto thereto, enforceable against each of them in accordance with their termsits terms and, upon consummation of the transactions contemplated by this Agreement, shall, except to the extent enforcement may be affected by Enforceability Exceptionsas otherwise stated in Company Disclosure Schedule 4.14(b), continue in full force and effect without penalty or other adverse consequence. Each Target The Company that is a party to a Material Contract is not in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such default under any Material Contract. Neither the Company , nor, to the Knowledge of the Company’s Knowledge, is any other party thereto, is to any Material Contract in breach of or default under (thereunder, and, to the Knowledge of the Company, no event has occurred that with the lapse of time or is alleged to be in the giving of notice or both would constitute a material breach or default underby the Company or any other party thereunder. Notwithstanding the generality of the foregoing, the Company is not in material default under the Management and Operational Services Agreement dated May 9, 2008 by and between the Company, REG Services Group, LLC, a Subsidiary of REG, and REG Marketing & Logistics Group, LLC, a Subsidiary of REG (the “MOSA”), and, to the Knowledge of the Company, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default by the Company thereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto, and no such party has given notice of any significant dispute with respect to any Material Contract. The Company has, and will have at the Closing, good and valid title to the Material Contracts, free and clear of all Liens other than Permitted Exceptions. The Company has neither provided nor received delivered to MergerLLC true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto. The Company is not and at Closing shall not be, obligated to make any notice payments to Professional Service Providers related to the Merger other than as set forth on Company Disclosure Schedule 4.14(a)(xix) or as approved by Parent.
(c) Company Disclosure Schedule 4.14(c) sets forth a complete and accurate list of all consents, waivers, approvals or authorizations of any intention Person required to terminate any transfer the Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderContracts.
Appears in 3 contracts
Sources: Merger Agreement (Blackhawk Biofuels, LLC), Agreement and Plan of Merger (Blackhawk Biofuels, LLC), Agreement and Plan of Merger (Blackhawk Biofuels, LLC)
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains a list 4.13(a) sets forth all of the following types of Contracts (and each amendment or modification thereto) to which any Target the Company is a party, party or by which such Target Company its material assets or its properties or assets are boundbound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and any Selling Member or Affiliate thereof or any current or former officer, member or Affiliate of the Company;
(ii) Contracts with Material Customers, any labor union or association representing any employee of the Company;
(iii) Contracts pursuant to which for the sale of any Target of the assets of the Company (i) made payments other than in the Ordinary Course of Business or for the grant to any third party Person of any preferential rights to purchase any of its assets;
(iv) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information;
(v) Contracts containing covenants of the Company not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment or covenants of any other Person not to compete with the twelve Company in any line of business or in any geographical area or not to solicit or hire any person with respect to employment;
(12vi) month period prior Contracts relating to the date hereofacquisition (by merger, purchase of stock or assets or otherwise) by the Company of any operating business or material assets or the capital stock of any other Person;
(vii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of the Company, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(viii) purchase Contracts giving rise to Liabilities of the Company in excess of $500,000; 50,000;
(ix) all Contracts providing for payments by or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, Company in excess of $500,00050,000 during the term thereof;
(bx) collective bargaining agreements and any other contracts with any labor unionsall Contracts obligating the Company to provide or obtain products or services for a period of one year or more or requiring the Company to purchase or sell a stated portion of its requirements or outputs that are not cancelable without penalty or further payment on 30 or less days’ notice;
(cxi) Contracts under which the Company has made advances or loans to any other Person;
(xii) Contracts providing for severance, retention, change in control or other than Benefit Planssimilar payments;
(xiii) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor part- time or consulting or other basis that provide annual cash compensation in excess of $150,000 per yearbasis;
(dxiv) material management Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan and Contracts with independent contractors or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, consultants (or similar letters of credit, arrangements) that are not cancelable without penalty or pursuant to which any Target Company has guaranteed any liabilities further payment on 30 or obligations of any of Personless days’ notice;
(exv) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by the LeasesCompany;
(fxvi) Contracts with Material Suppliers;
(gor group of related Contracts) Contracts with Material Customers;
(h) Contracts containing any covenant which involve the expenditure of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other more than sales of assets $50,000 in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements aggregate or joint venture agreements that involve a sharing of profits, losses, costs or liabilities require performance by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by party more than one year from the Company for any purpose whatsoeverdate hereof; and
(oxvii) Contracts related that are otherwise material to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aCompany.
(b) Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against binding obligation of the applicable Target Company andwhich is a party thereto, to the Company’s Knowledge, and of the other parties thereto thereto, and to the Knowledge of the executive officers of the Company, enforceable against each of the other parties in accordance with their its terms, and upon consummation of the transactions contemplated by this Agreement, shall, except to as otherwise stated in Schedule 4.13(b), continue without penalty or other adverse consequence in full force and effect immediately following the extent enforcement may be affected by Enforceability ExceptionsClosing Date. Each Target Except as set forth in Schedule 4.13(b), the Company that is a party to a Material Contract is not in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such default under any Material Contract. Neither the Company , nor, to the Company’s KnowledgeKnowledge of the Company or the Selling Members, is any other party thereto, is to any Material Contract in breach of or default under (or is alleged thereunder. Except as set forth in Schedule 4.13(b), to be in breach or default under)the Knowledge of the Company and the Selling Members, no party to any of the Material Contracts has exercised any termination rights with respect thereto and no party has given notice of any significant dispute with respect to any Material Contract. The Company has neither provided nor received any notice delivered or made available to Purchaser true, correct and complete copies of any intention to terminate any all of the Material Contract. To the Company’s KnowledgeContracts, no Occurrence has occurred together with all amendments, modifications or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereundersupplements thereto.
Appears in 3 contracts
Sources: Purchase Agreement (Banctec Inc), Purchase Agreement (Banctec Inc), Purchase Agreement (Banctec Inc)
Material Contracts. Section 3.10 of (a) Schedule 6.12(a) sets forth a true, correct and complete list of, and the Disclosure Schedule contains a list of the following types of Contracts (Company has made available to CAC, true, correct and complete copies of, each amendment or modification thereto) Contract to which any Target Company is a party, party or by which such any Target Company Company, or any of its properties or assets are bound, as of the date of this Agreement bound (such Contracts, together with the Intellectual Property Licenses, eacheach Contract required to be set forth on Schedule 6.12(a), a “Company Material Contract”):) that:
(ai) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which contains covenants that limit in any material respect the ability of any Target Company (iA) made payments to compete in any third party line of business or with any Person or in any geographic area or to sell, or provide any service or product or solicit any Person, other than in respect of customary non-disclosure agreements entered into by any Target Company in the twelve ordinary course of business or (12B) month period prior to purchase or acquire an interest in any other Person;
(ii) relates to the date hereofformation, creation, operation, management or control of any joint venture, profit-sharing, partnership, limited liability company or other similar agreement or arrangement;
(iii) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of any Target Company having an outstanding principal amount in excess of $500,000; , other than those incurred in the ordinary course of business of the Target Companies on behalf of a customers or any ordinary course transactions that are settled on a daily basis;
(iiiv) received involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $500,000 (other than in the ordinary course of business consistent with past practice) or shares or other equity interests of any Target Company or another Person;
(v) relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of any Target Company, its business or material assets;
(vi) by its terms, individually or with all related Contracts, calls for aggregate payments from or receipts by the Target Companies under such Contract or Contracts of at least $500,000 per year or $750,000 in the aggregate;
(vii) is with any Top Customer or Top Vendor;
(viii) obligates any Target Company to provide continuing indemnification or a guarantee of obligations of a third party in after the twelve (12) month prior to the date hereof, Signing Date in excess of $500,000;
(bix) collective bargaining agreements and is between any other contracts with any labor unions;
(cA) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed and (B) any liabilities directors, managers, officers or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant employees of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales at-will employment, assignment of assets Intellectual Property or confidentiality arrangements entered into in the ordinary course of business) or any other Related Person, including all non-competition, severance and indemnification agreements;
(x) obligates any Target Company to make any capital commitment or expenditure in excess of $500,000 (including pursuant to any joint venture);
(lxi) Contracts providing for the relates to a material settlement of any material Proceeding;
Action entered into in the within two (m2) limited liability company agreements, partnership agreements, Tax Sharing Agreements years prior to the Signing Date or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by under which any Target Company has outstanding obligations (other than customary confidentiality or non-disparagement obligations); or
(xii) that will be required to be filed with any other Personthe Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(nb) outstanding powers-of-attorney granted by Except as disclosed in Schedule 6.12(b), with respect to each Company Material Contract: (i) such Company Material Contract is valid and binding and enforceable in all respects against the Target Company for any purpose whatsoever; party thereto and
(o) Contracts related , to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) Knowledge of the Disclosure ScheduleCompany, the Company has made available to Purchaser true each other party thereto, and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and(except, to the Company’s Knowledgein each case, the other parties thereto in accordance with their terms, except to the extent as such enforcement may be affected limited by the Enforceability Exceptions. Each ), in each case, except as would not be reasonably expected to be, individually or in the aggregate, material to the Target Companies, taken as a whole; (ii) the consummation of the Transactions will not affect the validity or enforceability of any Company Material Contract; (iii) no Target Company that is a in breach or default in any material respect; (iv) to the Knowledge of the Company, no other party to a such Company Material Contract is in compliance breach or default in all any material respects with the terms and requirements of such Material Contract andrespect; (v) no Target Company has received written or, to the Knowledge of the Company’s Knowledge, each other Person that is oral notice of an intention by any party to any such Company Material Contract is in compliance in all material respects with the terms and requirements of to terminate such Company Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under ; and (or is alleged to be in breach or default under). The vi) no Target Company has neither provided nor received waived any notice of material rights under any intention to terminate any such Company Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 3 contracts
Sources: Business Combination Agreement (SEALSQ Corp), Business Combination Agreement (Wisekey International Holding S.A.), Business Combination Agreement (Columbus Acquisition Corp/Cayman Islands)
Material Contracts. Section 3.10 (a) Except for the Contracts disclosed in Schedule 3.12 attached hereto, with respect to the System, the System Operations or any Purchased Assets, Seller is not a party to or bound by:
(i) any lease (whether of real or personal property) providing for annual rentals of $25,000 or more;
(ii) any agreement for the Disclosure Schedule contains a list purchase of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments by Seller of $25,000 or more or (B) aggregate payments by Seller of $50,000 or more;
(iii) any sales, distribution or other similar agreement providing for the following types sale by Seller of Contracts materials, supplies, goods, services, equipment or other assets that provides for either (A) annual payments to Seller of $25,000 or more or (B) aggregate payments to Seller of $50,000 or more;
(iv) any partnership, joint venture or other similar agreement or arrangement (other than the agreement of limited partnership of Seller);
(v) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (A) with an aggregate outstanding principal amount not exceeding $25,000 and each amendment or modification theretowhich may be prepaid on not more than 30 days notice without the payment of any penalty and (B) entered into subsequent to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date as permitted by Section 306 hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(bvi) collective bargaining agreements and any other contracts with any labor unionsoption, license, franchise or similar agreement;
(cvii) Contracts (other than Benefit Plans) for the employment or engagement of any officeragency, employee dealer, sales representative, marketing or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearsimilar agreement;
(dviii) Contracts evidencing Indebtedness any agreement that limits the freedom of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant Seller to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging compete in any line of business or geographic region with any PersonPerson or in any area or to own, (ii) soliciting operate, sell, transfer, pledge or otherwise dispose of or encumber any customers, suppliers, employees Purchased Asset or contractors which would so limit the freedom of any other Person, or (iii) competing with any PersonBuyer after the Closing Date;
(iix) Contracts that contain any agreement with or provide for “most favored nations” terms;the benefit of any Affiliate of Seller; or
(jx) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any mergerother agreement, consolidation commitment, arrangement or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall plan not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets made in the ordinary course of business);
(l) Contracts providing for business which is material to the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements System or joint venture agreements that involve the Purchased Assets taken as a sharing of profits, losses, costs or liabilities by any Target Company with any other Personwhole.
(nb) outstanding powers-of-attorney granted by the Company for Each Contract disclosed in any purpose whatsoever; and
(o) Contracts related schedule to capital projects and capital expenditures in excess of $100,000 individually this Agreement or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on be disclosed pursuant to this Section 3.17(a) 3.12 is a valid and binding agreement of the Disclosure Schedule, the Company has made available to Purchaser true Seller and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect effect, and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company neither Seller nor, to the Company’s Knowledgeknowledge of Seller, any other party thereto, thereto is in default or breach of or default in any material respect under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice the terms of any intention such Contract, nor, to terminate the knowledge of Seller, has any Material Contract. To the Company’s Knowledge, no Occurrence has event or circumstance occurred or exists whichthat, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an any event of default under any Material Contract thereunder. No waiver, indulgence or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss postponement of any material benefit thereunderobligations under any lease has been granted by Seller or, to the knowledge of Seller, by any other Person. Seller has been and presently is in peaceable possession under all such leases since acquiring its interest in the leasehold. True and complete copies of each such written Contract have been delivered to Buyer.
Appears in 3 contracts
Sources: Asset Purchase Agreement (American Cellular Corp /De/), Asset Purchase Agreement (American Cellular Corp /De/), Asset Purchase Agreement (American Cellular Corp /De/)
Material Contracts. Section 3.10 of the Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target No Group Company is a party, party to or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):obligated under:
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to any contract which obligates the Group for any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party 250,000 RMB, in the twelve aggregate, and which is not terminable by any Group without additional payment or penalty within ninety (1290) month prior to the date hereof, in excess days of $500,000delivery of notice of such termination;
(b) collective bargaining agreements and any other contracts contract which restricts any Group Company from engaging in any line of business or competing with any labor unionsPerson in any geographic region;
(c) Contracts any partnership, 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 which is not wholly-owned by one or more Group Companies;
(d) any contract (other than Benefit Plansamong the Group Companies) under which Indebtedness in excess of 250,000 RMB is outstanding or pursuant to which any property or asset of the one or more Group Companies having a book value of more than 250,000 RMB is mortgaged, pledged or otherwise subject to an Encumbrance or any contract restricting the incurrence of Indebtedness or the incurrence of Encumbrances or restricting the payment of dividends;
(e) any contract entered into within three (3) years prior to the date hereof for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of 250,000 RMB and any term sheets or letters of intent in effect and not expired as of the date hereof, whether or not binding, relating to any of the foregoing in this clause (e);
(f) other than contracts for ordinary repair and maintenance, any contract relating to the development or construction of, or additions or expansions to, the Leased Real Properties, under which the Group Companies have, or expect to incur, in the aggregate one or more obligations in excess of 250,000 RMB in the aggregate that have not been satisfied as of the date hereof;
(g) any contract to which any Group Company has continuing indemnification obligations or potential liability under any purchase price adjustment that, in each case, could reasonably be expected to result in future payments by the Group Companies in the aggregate, of more than 250,000 RMB or any contract relating to the settlement or proposed settlement of any Legal Action, which involves the issuance of equity securities or payment of an amount, in any such case, having a value of more than 250,000 RMB;
(h) any contract for the employment of, or engagement receipt of any officerservices from, employee any director, officer or other Person employee on a full-time, part-time, consulting, independent contractor consulting or other basis that provide providing annual cash case compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of from the Target Group Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) 250,000 RMB in the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Personaggregate;
(i) Contracts that contain or provide for “most favored nations” termsany contract which relates to any Intellectual Property;
(j) Contracts with any Governmental Authoritycontract (other than contracts referenced in clause (a) through (i) of this Section 4.15) which by its terms call for payments by one or more of the Group Companies in excess of 250,000 RMB in the aggregate;
(k) Contracts entered into in connection any contract with any merger, consolidation current officer or other business combination, or with respect to the acquisition or disposition director of any business, assets or securities, Group Company or any equity or debt investment in or Affiliates of any loan to Group Company, including any PersonJZH Holder; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);or
(l) Contracts providing for any contract that requires a consent to or otherwise contains a provision relating to a “change of control’, or any contract that would prohibit or delay the settlement consummation of the transactions contemplated by this Agreement, or that would trigger, give rise to, accelerate or augment any liabilities or terminate or modify any rights of any material Proceeding;
Group Company as a result of the consummation of the transactions contemplated hereby (mthe contracts described in clause (a) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture through (k) of this Section 4.15 and those agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures set forth in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aSchedule 4.12(a) of the Disclosure ScheduleSchedules together with all exhibits and schedules thereto collectively, the Company has made available to Purchaser true and complete copies of each “Material Contract (including all modifications, amendments and supplements thereto and waivers thereunderContracts”). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 2 contracts
Sources: Share Exchange Agreement (SolarMax Technology, Inc.), Share Exchange Agreement (SolarMax Technology, Inc.)
Material Contracts. Section 3.10 (a) Schedules 2.16(a)(i) through (xxiv) of the Company Disclosure Schedule contains Letter set forth a list of each of the following types of Contracts (and each amendment or modification thereto) to which any Target Group Company is a party, or by which such Target Company or its properties or assets party that are bound, as of in effect on the date of this Agreement Date (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant any Contract providing for payments by or to any Group Company (or under which any Target Group Company (ihas made or received such payments) made payments to any third party in the twelve (12) month period prior to the date hereof, since such Group Company’s inception in excess an aggregate amount of $500,000; 25,000 or more;
(ii) received payments from any third party in dealer, distributor, referral or similar agreement, or any Contract providing for the twelve (12) month prior grant of rights to reproduce, license, market, refer or sell its products or services to any other Person or relating to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment advertising or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness promotion of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, Business or pursuant to which any Target third parties advertise on any websites operated by any Group Company;
(iii) other than “shrink wrap” and similar generally available commercial end-user licenses to software that have an individual acquisition cost of $25,000 or less, all licenses, sublicenses and other Contracts to which any Group Company is a party and pursuant to which the Company acquired or is authorized to use any Third-Party Intellectual Property Rights used in the development, marketing or licensing of the Company Products;
(iv) any license, sublicense or other Contract to which any Group Company is a party and pursuant to which any Person is authorized to use any Company Intellectual Property Rights;
(v) any license, sublicense or other Contract pursuant to which any Group Company has guaranteed agreed to any liabilities or obligations restriction on the right of any Group Company to use or enforce any Company Intellectual Property Rights or pursuant to which any Group Company agrees to encumber, transfer or sell rights in or with respect to any Company Intellectual Property Rights;
(vi) any Contract providing for the development of any software, technology or Intellectual Property Rights, independently or jointly, either by or for any Group Company (other than employee invention assignment agreements and consulting agreements with Authors on the Company’s standard form of agreement, copies of which have been provided to Purchaser);
(vii) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into by any Group Company in the ordinary course of business consistent with past practice;
(viii) any Contract to license or authorize any third party to manufacture or reproduce any of the Company Products or Company Intellectual Property;
(ix) any Contract with any Governmental Entity, any Company Authorization, or any Contract with a government prime contractor, or higher-tier government subcontractor, including any indefinite delivery/indefinite quantity contract, firm-fixed-price contract, schedule contract, blanket purchase agreement, or task or delivery order (each a “Government Contract”).
(x) (A) any joint venture Contract, (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons and (C) any Contract that involves the payment of royalties to any other Person;
(exi) any separation agreement or severance agreement with any current or former employees under which the Leasesany Group Company has any actual or potential Liability;
(fxii) Contracts any Contract for or relating to the employment or service of any director, officer, employee, consultant or beneficial owner of more than 5% of the total shares of Company Capital Stock or any other type of Contract with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from officers, employees, consultants or beneficial owners of more than 5% of the total shares of Company Capital Stock, as the case may be, excluding (iA) engaging in any line of business or geographic region with any Personat-will employment offer letters, (iiB) soliciting any customersconsulting agreements that can be terminated by the Company on not more than 30 days’ notice, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(iC) Contracts that contain providing for the grant or provide for “most favored nations” terms;
issuance of equity (jincluding all associated financing agreements) Contracts with any Governmental Authority;
and (kD) form Contracts entered into in connection with employment or service, such as invention and assignment agreements;
(xiii) any mergerContract (A) pursuant to which any other party is granted exclusive rights or “most favored party” rights of any type or scope with respect to any of the Company Products or Company Intellectual Property, consolidation (B) containing any non-competition covenants or other business combinationrestrictions relating to the Company Products or Company Intellectual Property, (C) that limits or would limit the freedom of the Company or any of its successors or assigns or their respective Affiliates to (I) engage or participate, or compete with any other Person, in any line of business, market or geographic area with respect to the acquisition Company Products or disposition the Company Intellectual Property, or to make use of any businessCompany Intellectual Property, assets including any grants by any Group Company of exclusive rights or securitieslicenses or (II) sell, distribute or manufacture any equity products or debt investment in services or to purchase or otherwise obtain any loan to software, components, parts or services or (D) containing any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business)“take or pay,” minimum commitments or similar provisions;
(lxiv) Contracts providing for any standstill or similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of the settlement Company or assets of any material Group Company or otherwise seeking to influence or exercise control over any Group Company;
(xv) any Contracts relating to the membership of, or participation by, any Group Company in, or the affiliation of any Group Company with, any industry standards group or association;
(xvi) any settlement agreement with respect to any Legal Proceeding;
(mxvii) limited liability company agreementsany Contract pursuant to which rights of any third party are triggered or become exercisable, partnership agreementsor under which any other consequence, Tax Sharing Agreements result or joint venture agreements that involve effect arises, in connection with or as a sharing result of profitsthe execution of this Agreement or the consummation of the Stock Purchase or the other Transactions, losseseither alone or in combination with any other event;
(xviii) any Contract or plan (including any stock option, costs share scheme, merger and/or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or liabilities redemption of any shares of Company Capital Stock or any other securities of any Group Company or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor;
(xix) any Contract with any trade union, works council, labor union or any collective bargaining agreement or similar contract with its employees;
(xx) any trust indenture, mortgage, promissory note, loan agreement or other Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(xxi) any Contract of guarantee, surety, support, assumption or endorsement of, or any similar commitment with respect to, the Liabilities or indebtedness of any other Person;
(xxii) any Contract for capital expenditures in excess of $50,000 in the aggregate;
(xxiii) any Contract pursuant to which any Group Company is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving expenditures in excess of $25,000 per annum; and
(xxiv) any Contract pursuant to which any Group Company has acquired a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any Target Company with Contract pursuant to which it has any ownership interest in any other Person.
(nb) outstanding powers-of-attorney granted All Material Contracts are in written form. Each Group Company has performed all of the obligations required to be performed by the Company for any purpose whatsoever; and
(o) Contracts related it and is entitled to capital projects all benefits under, and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required alleged to disclose on Section 3.17(a) be in default in respect of, any Material Contract to which it is a party. Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is valid and enforceable against the applicable Target Company andeffect, subject only to the effect, if any, of applicable bankruptcy and other similar Applicable Law affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies. There exists no default or event of default or event, occurrence, condition or act, with respect to any Group Company or to the knowledge of the Company’s Knowledge, with respect to any other contracting party, that, with the giving of notice, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or boththe happening of any other event or condition, may give rise to, serve as would reasonably be expected to (i) become a basis for, default or would constitute an event of default under any Material Contract or result (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in a termination thereof delivery schedule under any Material Contract, (C) the right to accelerate the maturity or would cause performance of any obligation of any Group Company under any Material Contract or permit (D) the acceleration right to cancel, terminate or modify any Material Contract. No Group Company has received any notice or other changes communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Contract. No Group Company has any Liability for renegotiation of any right or obligation or Government Contracts. True, correct and complete copies of all Material Contracts have been provided to Purchaser at least three Business Days prior to the loss of any material benefit thereunderAgreement Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Grail, Inc.), Stock Purchase Agreement (Grail, Inc.)
Material Contracts. Section 3.10 of (a) Schedule 5.12(a) sets forth a true, correct and complete list of, and the Disclosure Schedule contains a list of the following types of Contracts (Company has made available to SPAC true, correct and complete copies of, each amendment or modification thereto) Contract to which any Target Company is a party, party or by which such any Target Company Company, or any of its properties or assets are bound, as of the date of this Agreement bound or affected (such Contracts, together with the Intellectual Property Licenses, eacheach Contract required to be set forth on Schedule 5.12(a), a “Company Material Contract”):) that:
(ai) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which contains covenants that limit the ability of any Target Company (iA) made payments to compete in any line of business or with any Person or in any geographic area or to sell, or provide any service or product or solicit any Person, including any non-competition covenants, employee and customer non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or (B) to purchase or acquire an interest in any other Person;
(ii) involves any joint venture, profit-sharing, partnership, limited liability company or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture (other than the Company Operating Agreement);
(iii) involves any exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(iv) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of any Target Company having an outstanding principal amount in excess of $200,000;
(v) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $200,000 (other than in the ordinary course of business consistent with past practice) or shares or other equity interests of any Target Company or another Person;
(vi) relates to any third party in merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of any Target Company, its business or material assets;
(vii) by its terms, individually or with all related Contracts, resulted, during the twelve (12) month 12)-month period prior to the date hereof, in aggregate payments or receipts to or by the Target Companies under such Contract or Contracts of at least $100,000 or $200,000 in the aggregate;
(viii) is with any Top Customer or Top Supplier;
(ix) obligates the Target Companies to provide continuing indemnification or a guarantee of obligations of a third party after the date hereof in excess of $500,000; 200,000;
(x) is between any Target Company and any directors, officers or employees of a Target Company (ii) received payments from any third party other than at-will employment arrangements with employees entered into in the twelve ordinary course of business consistent with past practice), including all non-competition, severance and indemnification agreements, or any Related Person;
(12xi) month obligates the Target Companies to make any capital commitment or expenditure in excess of $200,000 (including pursuant to any joint venture);
(xii) relates to a material settlement entered into within three (3) years prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment this Agreement or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to under which any Target Company has guaranteed any liabilities or outstanding obligations of any of Person(other than customary confidentiality obligations);
(exiii) the Leases;
provides another Person (f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a other than another Target Company or any manager, director or officer of its Affiliates any Target Company) with a power of attorney;
(xiv) relates to the development, ownership, licensing or use of any material Intellectual Property by, to or from any Target Company, other than Off-the-Shelf Software;
(xv) that will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant; or
(xvi) is otherwise material to the Target Companies taken as a whole and not described in clauses (i) engaging in any line of business or geographic region through (xv) above.
(b) Except as disclosed on Schedule 5.12(b), with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
respect to each Company Material Contract: (i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into such Company Material Contract is valid and binding and enforceable in connection with any mergerall material respects against the Target Company party thereto and, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) Knowledge of the Disclosure ScheduleCompany, the Company has made available to Purchaser true each other party thereto, and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and(except, to the Company’s Knowledgein each case, the other parties thereto in accordance with their terms, except to the extent as such enforcement may be affected limited by the Enforceability Exceptions. Each ), (ii) the consummation of the transactions contemplated by this Agreement will not affect the validity or enforceability of any Company Material Contract in any material respect, (iii) no Target Company is in breach or default in any material respect, and no event has occurred that is with the passage of time or giving of notice or both would constitute a material breach or default by any Target Company, or permit termination or acceleration by the other party thereto, under such Company Material Contract; (iv) to the Knowledge of the Company, no other party to a such Company Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received in any notice of any intention to terminate any Material Contract. To the Company’s Knowledgematerial respect, and no Occurrence event has occurred or exists which, that with notice or lapse the passage of time or both, may give rise to, serve as giving of notice or both would constitute such a basis formaterial breach or default by such other party, or would constitute permit termination or acceleration by any Target Company, under such Company Material Contract; (v) no Target Company has received written notice of an event of default under intention by any party to any such Company Material Contract that provides for a continuing obligation by any party thereto to terminate such Company Material Contract or result amend the terms thereof, other than modifications in a termination thereof or would cause or permit the acceleration or other changes ordinary course of business that do not adversely affect any right or obligation or the loss of Target Company in any material benefit thereunderrespect; and (vi) no Target Company has waived any material rights under any such Company Material Contract.
Appears in 2 contracts
Sources: Business Combination Agreement (Copley Acquisition Corp), Business Combination Agreement (Aditxt, Inc.)
Material Contracts. Section 3.10 (a) Schedule 4.12(a) sets forth a true, correct and complete list of, and the Company has made available to SPAC (including written summaries of the Disclosure Schedule contains a list of the following types of Contracts (oral Contracts), true, correct and complete copies of, each amendment or modification thereto) Contract to which any Target Company is a party, party or by which such any Target Company Company, or any of its properties or assets are bound, as of the date of this Agreement bound (such Contracts, together with the Intellectual Property Licenses, eacheach Contract required to be set forth on Schedule 4.12(a), a “Company Material Contract”):) that:
(ai) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which contains covenants that limit the ability of any Target Company (iA) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging compete in any line of business or with any Person or in any geographic region with area or to sell, or provide any service or product or solicit any Person, including any non-competition covenants, customer non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or (iiB) soliciting any customers, suppliers, employees to purchase or contractors of acquire an interest in any other Person, or (iii) competing with any Person;
(iii) Contracts that contain involves any joint venture, profit-sharing, partnership, limited liability company or provide for “most favored nations” termsother similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture;
(jiii) Contracts with involves any Governmental Authorityexchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(kiv) Contracts entered into evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of any Target Company having an outstanding principal amount in connection with any merger, consolidation or other business combination, or with respect to excess of $200,000;
(v) involves the acquisition or disposition disposition, directly or indirectly (by merger or otherwise), of any business, assets or securities, or any equity or debt investment with an aggregate value in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith excess of $200,000 (other than sales of assets in the ordinary course of business);
(lvi) Contracts providing for the settlement any Contract with any Person under which any Target Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to lease or any other similar rights with respect to any material ProceedingCompany Owned IP;
(mvii) limited liability company agreements, partnership agreements, Tax Sharing Agreements shares or joint venture agreements that involve a sharing other equity interests of profits, losses, costs or liabilities by any Target Company or another Person;
(viii) relates to any merger, consolidation or other business combination with any other Person.Person or the acquisition or disposition of any other entity or its business or material assets or the sale of any Target Company, its business or material assets;
(nix) outstanding powers-of-attorney granted by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Company for any purpose whatsoever; andTarget Companies under such Contract or Contracts of at least $500,000 per year or $1,000,000 in the aggregate, other than at-will employment arrangements with employees entered into in the ordinary course of business;
(ox) Contracts related is with any Top Customer or Top Supplier;
(xi) obligates the Target Companies to capital projects and capital expenditures provide continuing indemnification (outside of indemnification obligations in agreements with third parties entered into in the ordinary course of business consistent with past practice) or a guarantee of obligations or Liabilities of a third party in the aggregate in excess of $100,000 individually 200,000;
(xii) is between any Target Company and any directors, officers or $250,000 employees of a Target Company (other than at-will employment arrangements with employees entered into in the aggregate. Other ordinary course of business), including all non-competition, severance and indemnification agreements, or any Related Person;
(xiii) obligates the Target Companies to make any capital commitment or expenditure in excess of $200,000 (including pursuant to any joint venture);
(xiv) relates to a material settlement entered into within three (3) years prior to the date of this Agreement or under which any Target Company has outstanding material obligations (other than customary confidentiality obligations);
(xv) provides another Person (other than another Target Company or any manager, director or officer of any Target Company) with a power of attorney;
(xvi) relates to the development, ownership, licensing or use of any material Intellectual Property Licenses by, to or from any Target Company, other than (A) Off-the-Shelf Software; (B) licenses for Open Source Materials; (C) Contracts which include non-exclusive license grants by a Target Company in the ordinary course of business, (D) Contracts which include non-exclusive license grants that are incidental to the primary purpose of the Contract, (E) nondisclosure agreements, and (F) employment and service Contracts with employees and contractors in the ordinary course of business ((A)-(F), collectively, “Standard IP Agreements”);
(xvii) that will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company is not required as an exhibit for a Form S-1 pursuant to disclose on Section 3.17(aItems 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Disclosure Schedule, Securities Act as if the Company has made available was the registrant; or
(xviii) is otherwise material to Purchaser true any Target Company and complete copies outside of the ordinary course of business and not described in clauses (i) through (xvii) above.
(b) Except as disclosed in Schedule 4.12(b), with respect to each Company Material Contract: (i) such Company Material Contract (including is valid and binding and enforceable in all modificationsmaterial respects against the Target Company party thereto and, amendments to the Knowledge of the Company, each other party thereto, and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and(except, to the Company’s Knowledgein each case, the other parties thereto in accordance with their terms, except to the extent as such enforcement may be affected limited by the Enforceability Exceptions. Each ); (ii) the consummation of the transactions contemplated by this Agreement will not affect the validity or enforceability of any Company Material Contract in any material respect; (iii) no Target Company is in breach or default in any material respect, and, no event has occurred that is with the passage of time or giving of notice or both would constitute a material breach or default by the Target Company, or permit termination or acceleration by the other party thereto, under such Company Material Contract; (iv) to the Knowledge of the Company, no other party to a such Company Material Contract is in compliance breach or default in all any material respects respect, and no event has occurred that with the terms and requirements passage of time or giving of notice or both would constitute such a material breach or default by such other party, or permit termination or acceleration by any Target Company, under such Company Material Contract andContract; (v) no Target Company has received written or, to the Knowledge of the Company’s Knowledge, each other Person that is oral notice of an intention by any party to any such Company Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, that provides for a continuing obligation by any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention thereto to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any such Company Material Contract or result amend the terms thereof, other than modifications in a termination thereof or would cause or permit the acceleration or other changes ordinary course of business that do not adversely affect any right or obligation or the loss of Target Company in any material benefit thereunderrespect; and (vi) no Target Company has waived any material rights under any such Company Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Newbury Street II Acquisition Corp), Agreement and Plan of Merger (Newbury Street II Acquisition Corp)
Material Contracts. Section 3.10 5.19 of the Company Disclosure Schedule contains sets forth a true and complete list of the following types of Contracts (and each amendment or modification thereto) Material Contract to which the Company or any Target Company of its Subsidiaries is a party, party to or by which such Target Company or its properties or assets are bound, bound that is in effect as of the date of this Agreement (such Contractsand the Company has made available to Parent, together or publicly filed with the Intellectual Property Licenses, eachSEC, a true and complete copy of each such Material Contract. For purposes of this Agreement, “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company ” shall mean: (i) made payments any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the 1934 Act), whether or not filed by the Company with the SEC, (ii) any employment, severance or consulting agreement (in each case with respect to any third party in which the twelve (12) month period prior to Company has continuing obligations as of the date hereof) with any current or former (x) executive officer or management employee of the Company, (y) member of the Board of Directors, or (z) employee of the Company who receives an annual base salary in excess of $500,000; or 150,000, (iiiii) received payments from any third party agreement that purports to limit in any material respect the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness right of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from Subsidiaries (ior, at any time after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) engaging to (A) sell, supply or distribute any products or services of or to any other Person or in any geographic region, (B) engage in any line of business or geographic region (C) compete with or to obtain products or services from any PersonPerson or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries, (iiiv) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect agreement relating to the acquisition disposition or disposition of any businessacquisition, assets directly or securitiesindirectly (by merger or otherwise), or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for or any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures of its Subsidiaries after the date of this Agreement of assets with a fair market value in excess of $100,000 individually 500,000 individually, (v) any partnership or $250,000 joint venture agreement or any agreement with a selling partner, in the aggregate. Other than the Intellectual Property Licenses each case that is material to the Company and its Subsidiaries taken as a whole, (vi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $1,000,000, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned Subsidiaries of the Company, (vii) any employee collective bargaining agreement or other agreement with any labor union, (viii) any agreement that by its terms limits the payment of dividends or other distributions by the Company or any of its Subsidiaries, (ix) any agreement that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses, (x) each Lease involving annual payments by the Company or any of its Subsidiaries in excess of $100,000, (xi) any other Contract under which the Company or any of its Subsidiaries is obligated to make payment or incur costs in excess of $500,000 in any year and which is not required to disclose otherwise described in clauses (i)-(x) above, (xii) the Contract listed on Section 3.17(a5.19(xii) of the Company Disclosure Schedule, Schedule and (xiii) any material Contract pursuant to which the Company has made or one of its Subsidiaries licenses or otherwise grants to a Third Party, or receives a license or grant from a Third Party of, any Intellectual Property rights material to the Company’s or one of its Subsidiaries’ business as currently conducted (other than Contracts granting rights to readily available to Purchaser true hardware and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunderCOTS). Each Except for breaches, violations or defaults which would not reasonably be expected to have a Company Material Contract Adverse Effect, (w) each of the Material Contracts is a valid, binding and enforceable obligation of the Company or the applicable Subsidiary of the Company and, to the knowledge of the Company, of the other party or parties thereto in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other laws affecting creditors’ rights generally and general principles of equity), (x) each of the Material Contracts is in full force and effect and is valid and enforceable against effect, (y) neither the applicable Target Company andnor any of its Subsidiaries, nor to the Company’s Knowledge, the knowledge any other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the terms and requirements provisions of such Material Contract andand (z) as of the date hereof, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither neither the Company nornor any of its Subsidiaries has received notice in writing that it has breached, to the Company’s Knowledge, any other party thereto, is in breach of violated or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default defaulted under any Material Contract or result in a that any other party intends to terminate any Material Contract prior to its scheduled termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderdate.
Appears in 2 contracts
Sources: Merger Agreement (MediaMind Technologies Inc.), Merger Agreement (DG FastChannel, Inc)
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains 3.16(a) sets forth a true, correct and complete list of the following types of all Contracts described in clauses (and each amendment or modification theretoi) through (xv) below to which any Target member of the Company Group is a party or by which any member of the Company Group, or any of the Company Group Assets, are bound (each Contract required to be set forth on Schedule 3.16(a), other than a Company Benefit Plan, a “Company Material Contract”) and the Company has delivered to the SPAC, true, complete and correct copies of each:
(i) contains covenants that materially limit the ability of any member of the Company Group (A) (1) to compete in any line of business, with any Person or in any geographic area, (2) to sell or provide any service or product, or (3) to solicit any Person, other than in respect of customary non-disclosure agreements entered into by any member of the Company Group in the ordinary course of business or (B) to purchase or acquire an Interest in any other Person;
(ii) with any Governmental Authority to which a Company is a party;
(iii) providing for the formation of any joint venture or profit-sharing agreement or arrangement;
(iv) providing for the indemnification by a Company Group member of any Person or the assumption of any Tax, environmental or other Liability of any Person, other than any such Contract for the purchase or sale of goods and services executed in the ordinary course of business;
(v) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by which such Target Company or its properties or assets are bound, as any asset) by and between members of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, Group having an outstanding principal amount in excess of $500,000;
(bvi) collective bargaining agreements and any other contracts was entered into during the past two (2) years involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets, including real property, with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation an aggregate value in excess of $150,000 per year500,000 (other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, (B) in the ordinary course of business consistent with past practice or (C) between the members of the Company Group);
(dvii) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which payments or receipts by any Target member of the Company has guaranteed any liabilities Group under such Contract or obligations of any of PersonContracts exceeded $500,000 in the fiscal year ending December 31, 2022, in the aggregate;
(eviii) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region is with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other PersonTop Supplier, or (iii) competing with Top Customer excluding any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements, purchaser order forms, sales acknowledgement forms or similar agreements entered into in connection therewith (other than sales of assets in the ordinary course of business;
(ix) pursuant to which a Company Group member is required to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(x) is between any member of the Company Group and any directors, officers or employees of a Company Group member (including, for the avoidance of doubt, the Key Management) or any Related Person and which are not cancellable without material penalty or without more than ninety (90) days’ notice;
(xi) is a collective bargaining agreement or Contract with any Union to which the Company is a party;
(xii) obligates the Company Group to make any capital commitment or expenditure in excess of $500,000 (including pursuant to any joint venture);
(lxiii) Contracts providing for relates to a settlement entered into within three (3) years prior to the settlement date of this Agreement or under which any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing member of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
Group has outstanding obligations (oother than customary confidentiality obligations) Contracts related that would be reasonably likely to capital projects and capital expenditures involve payments in excess of $100,000 individually 500,000 after the date of this Agreement;
(xiv) relates to the development, ownership, licensing or use of any Intellectual Property by, to or from any member of the Company Group (the “Company IP Licenses”), other than (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for Software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $250,000 50,000 per year, (B) employee or consultant invention assignment agreements entered into on a Company Group’s standard form of such agreement, (C) confidentiality agreements entered into in the aggregate. Other than the Intellectual Property Licenses that ordinary course of business, (D) non-exclusive licenses from or to suppliers, customers or distributors to any member of the Company is Group entered into in the ordinary course of business, or (E) feedback and ordinary course trade name or logo rights that are not required material to disclose on Section 3.17(a) any member of the Disclosure ScheduleCompany Group; or
(xv) the termination of which, would be otherwise material to the Company has made available to Purchaser true Group and complete copies not covered by clauses (i) through (xiv) above.
(b) No member of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, Group is in breach of or default under (or the terms of any Company Material Contract and, to the Knowledge of the Company, no other party to any Company Material Contract is alleged to be in breach of or default under). The Company has neither provided nor received any notice under the terms of any intention to terminate any Company Material Contract. To the Company’s Knowledge, and no Occurrence event has occurred or exists whichnot occurred through any of the Company Group’s action or inaction or, to the Knowledge of the Company, through the action or inaction of any third party, that with notice or the lapse of time or bothboth would constitute a breach of or default under the terms of any Company Material Contract, may give rise toin each case, serve except as would not reasonably expected to have, individually or in the aggregate, a material and adverse effect on the Company Group, taken as a basis for, or would constitute an event of default under any whole. Each Company Material Contract (i) is a valid and binding obligation of the member of the Company Group that is party thereto and, to the Knowledge of the Company, of each other party thereto, and (ii) is in full force and effect, subject to the Remedies Exception, in each case, except as would not be reasonably expected to have, individually or result in the aggregate, a termination thereof or would cause or permit material and adverse effect on the acceleration or other changes Company Group, taken as a whole. There are no, and within the last three (3) years there have not been, disputes pending or, to the Knowledge of the Company, threatened in writing with respect to any Company Material Contract, and the Company Group has not received any written notice of the intention of any right other party to a Company Material Contract to terminate for default, convenience or obligation otherwise any Company Material Contract, except as would not be reasonably expected to have, individually or in the loss of any aggregate, a material benefit thereunderand adverse effect on the Company Group, taken as a whole.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (TMT Acquisition Corp.), Merger Agreement (TMT Acquisition Corp.)
Material Contracts. (a) Section 3.10 3.11(a)-1 of the Company Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are boundLetter identifies, as of the date of this Agreement Agreement, each of the following Company Contracts:
(i) any Company Contract relating to the development, sale or disposition of any Owned Real Property or Development Real Property;
(ii) any Company Contract: (A) involving a material joint venture, strategic alliance, partnership or sharing of profits or revenue; or (B) for any capital expenditure over the remaining life of such ContractsCompany Contract in excess of $3,000,000 that is not included in the Company’s capital expenditure budget set forth in Section 3.11(a)-1(iv) of the Company Disclosure Letter;
(iii) any Company Contract entered into since January 1, together with 2018, relating to the acquisition, transfer, sale, development (including joint development) or joint ownership of any material Company IP (other than assignments of Intellectual Property Licenses, each, a “Material Contract”):to the Acquired Companies from their employees or contractors on standard forms used by such Acquired Companies);
(aiv) Other than Contracts with Material Suppliers and Contracts with Material Customersany Company Contract entered into at any time since January 1, Contracts 2020: (A) relating to the disposition or acquisition by any Acquired Company of any business, product line or other assets outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) for consideration in excess of $15,000,000 individually or $30,000,000 in the aggregate for all such Company Contracts; or (B) pursuant to which any Target Acquired Company (i) made payments will acquire any interest, or will make an investment, other than short term investments including but not limited to any third party money market funds, bank deposits, commercial paper and other money market instruments as disclosed in the twelve Company Balance Sheet or the notes thereto, or incurred in the ordinary course consistent with past practice since the date of the Company Balance Sheet, for consideration in excess of $15,000,000 in any other Person, other than another Acquired Company;
(12v) month period any Company Contract relating to the disposition or acquisition by any Acquired Company of any business, product line or other material assets of the Acquired Company or another Entity outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) with continuing material indemnification obligations of any Acquired Company, or any material remaining “earn out” or other contingent payment or consideration of any Acquired Company that has not been substantially satisfied prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000this Agreement;
(bvi) collective bargaining agreements and any other contracts with Company Contract containing any labor unions“standstill” or similar provisions that limit or restrict; (A) the ability of a Person to acquire any securities or assets of an Acquired Company or (B) the ability of an Acquired Company to acquire any securities or assets of a Person that is not an Acquired Company;
(cvii) Contracts (other than Benefit Plans) for any Company Contract that by its terms materially limits the employment or engagement ability of any officerAcquired Company (or, employee or other Person on a full-timeby its terms, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess following the Closing would limit the ability of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company Parent or any of its Affiliates from Subsidiaries of Parent (iother than the Acquired Companies)): (A) engaging to engage in any line of business or compete with, or provide any product or service to, any other Person or in any geographic region with area; (B) to acquire any product or other asset or any service from any Person, (ii) soliciting sell any customers, suppliers, employees product or contractors of other asset to or perform any service for any other Person, or (iii) competing transact business or deal in any other manner with any other Person; or (C) to develop, sell, supply, distribute, offer, support or service any product or other asset or license any Intellectual Property Right to or for any other Person;
(iviii) Contracts any Company Contract that contain by its terms: (A) grants exclusive rights to market, sell or provide for deliver any material product or service of any Acquired Company; (B) contains any “most favored nationsnation” terms;
or similar provision in favor of the counterparty for a material product or service of any Acquired Company; (jC) Contracts with contains a right of first refusal, first offer or first negotiation or any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or similar right with respect to a material asset owned by an Acquired Company; or (D) provides for a “sole source” or similar relationship or contains any provision that requires the acquisition purchase of all or disposition a material portion of an Acquired Company’s requirements from any businessthird party; or any Company Contract that, assets by its terms, following the Closing would grant, contain or securitiesprovide, or purport to grant, contain or provide, any equity or debt investment of the foregoing rights in respect of Parent or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith Subsidiary of Parent (other than sales of assets in the ordinary course of businessthose Subsidiaries constituting Acquired Companies);
(lix) Contracts providing for any Bid in excess of $30,000,000 submitted by an Acquired Company that, if awarded to the settlement Acquired Company, would result or be expected to result, in a Company Contract contemplated by any of any material Proceedingthe foregoing clauses (i) through (x);
(mx) limited liability company agreementsany Company Contract that involves or includes, partnership agreementsas the case may be: (A) a fixed price development work with a completion criteria in excess of $5,000,000 over the remaining life of such Company Contract; or (B) as of September 30, Tax Sharing Agreements or joint venture agreements that involve a sharing 2022, an anticipated loss for the remaining life of profits, losses, costs or liabilities by any Target the Company Contract determined in accordance with any other Person.GAAP in excess of $5,000,000;
(nxi) outstanding powers-of-attorney granted by any settlement, conciliation or similar Company Contract arising out of a Legal Proceeding or threatened Legal Proceeding: (A) that materially restricts or imposes any material obligation on any Acquired Company or materially disrupts the Company for business of any purpose whatsoeverof the Acquired Companies as currently conducted; or (B) that would require any of the Acquired Companies to pay consideration valued at more than $10,000,000 in the aggregate following the date of this Agreement; and
(oxii) Contracts related to capital projects and capital expenditures in excess any other Company Contract (other than any other Material Contract), if a termination of $100,000 such Company Contract, individually or $250,000 in the aggregate, constitutes a Company Material Adverse Effect. Other than For purposes of this Agreement (except as otherwise set forth in this Agreement), Company Contracts of the Intellectual Property Licenses that the Company is not type required to disclose on be set forth in Section 3.17(a3.9(a)-2, Section 3.10(a)(ii)-(iii), Section 3.11(a)-1, Section 3.14(b), Section 3.18(d) and Section 3.20(a) of the Company Disclosure ScheduleLetter and any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), in each case as of the date of this Agreement shall be deemed to constitute a “Material Contract.” Except as set forth on Section 3.11(a)-2 of the Company Disclosure Letter, the Company has made available to Purchaser true Parent an accurate and complete copies copy of each Material Contract.
(b) Except as does not, individually or in the aggregate, constitute a Company Material Adverse Effect, each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each that constitutes a Material Contract is in full force and effect and is valid valid, binding and enforceable in accordance with its terms against each Acquired Company which is a party thereto, subject to the Enforceability Exceptions and assuming the validity, binding nature and enforceability against the applicable Target Company counterparty or counterparties thereto. None of the Acquired Companies, and, to the Knowledge of the Company’s Knowledge, no other Person, has violated or breached, or committed any default under, any Material Contract, where such violation, breach or default, individually or in the other parties thereto aggregate, constitutes a Company Material Adverse Effect. To the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) reasonably would be expected to: (i) result in accordance with their termsa material default, except violation or breach of any of the provisions of any Material Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Material Contract; (iii) give any Person the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is right to receive or require a party penalty under any Material Contract; (iv) give any Person the right to a accelerate the maturity or performance of any Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged any material obligation thereunder); or (v) give any Person the right to be in breach cancel, terminate or default under). The Company has neither provided nor received any notice of any intention to terminate modify any Material Contract. To Since January 1, 2020, none of the Acquired Companies has received any written notice or, to the Knowledge of the Company’s Knowledge, no Occurrence has occurred other communication regarding an actual or exists which, with notice or lapse of time or both, may give rise to, serve as a basis foralleged material breach by an Acquired Company of, or would constitute default by an event of default under Acquired Company under, any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderContract.
Appears in 2 contracts
Sources: Merger Agreement (Aerojet Rocketdyne Holdings, Inc.), Merger Agreement (L3harris Technologies, Inc. /De/)
Material Contracts. (a) Except as set forth in Section 3.10 3.14 of the Disclosure Schedule contains a list Schedule, neither Company nor any of the following types of Contracts (and each amendment or modification thereto) to which any Target Company its Subsidiaries is a party, party to or by which such Target Company or its properties or assets are boundbound by, as of the date hereof, any of the following (each contract, arrangement, commitment or understanding of the type described in this Agreement (such ContractsSection 3.14(a), together with whether written or oral and whether or not set forth in the Intellectual Property LicensesDisclosure Schedule, each, is referred to as a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments any contract or agreement entered into since January 1, 2009 (and any contract or agreement entered into at any time to any third party in the twelve (12) month period prior to extent that material obligations remain as of the date hereof), other than in excess the ordinary course of $500,000; business consistent with past practice, for the acquisition of the securities of or any material portion of the assets of any other Person or entity;
(ii) received payments from any third party trust indenture, mortgage, promissory note, loan agreement or other contract, agreement or instrument for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in the twelve (12) month prior to the date hereofaccordance with GAAP, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officereach case, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target where Company or any of its Affiliates from (i) engaging Subsidiaries is a lender, borrower or guarantor and where the amount is in any line excess of business or geographic region with any Person$200,000, (ii) soliciting any customersother than agreements evidencing deposit liabilities, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into endorsements and guarantees in connection with any mergerpresentation of items for collection (e.g., consolidation personal or other business combinationchecks) in the ordinary course of business consistent with past practice, trade payables and contracts or with respect agreements relating to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements borrowings entered into in connection therewith (other than sales of assets in the ordinary course of business), including any sale and leaseback transactions, capitalized leases and other similar financing transactions;
(liii) Contracts providing for any contract or agreement limiting (or purporting to limit) the settlement freedom of Company or any material Proceedingof its Subsidiaries or other Affiliates to engage in any line of business or to compete with any other Person or prohibiting Company or any of its Subsidiaries or other Affiliates from soliciting customers, clients or employees, in each case whether in any specified geographic region or business or generally;
(miv) limited liability company agreementsany contract or agreement with any Affiliate of Company or any of its Subsidiaries;
(v) any agreement of guarantee, support or indemnification by Company or any of its Subsidiaries, assumption or endorsement by Company or any of its Subsidiaries of or any similar commitment by Company or any of its Subsidiaries with respect to the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person other than those entered into in the ordinary course of business;
(vi) any material agreement that would be terminable other than by Company or any of its Subsidiaries or any agreement under which a material payment obligation of the Company or any of its Subsidiaries (or any successor(s) thereto) would arise or be accelerated, in each case as a result of the announcement or consummation of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional acts or events);
(vii) any alliance, cooperation, joint venture, shareholders’ partnership agreements, Tax Sharing Agreements or joint venture agreements that involve similar agreement involving a sharing of profits, losses, costs profits or liabilities by losses relating to Company or any Target Company of its Subsidiaries;
(viii) any employment agreement with any other Person.employee or officer of Company or any of its Subsidiaries;
(nix) outstanding powers-of-attorney any agreement, option or commitment or right with, or held by, any third party to acquire, use or have access to any assets or properties, or any interest therein, of Company or any of its Subsidiaries, other than in connection with the sale of Loans, Loan participations or investment securities in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company;
(x) any contract or agreement that contains any (A) exclusive dealing obligation, (B) “clawback” or similar undertaking requiring the reimbursement or refund of any fees, (C) “most favored nation” or similar provision granted by Company or any of its Subsidiaries or (D) provision that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of Company for or any purpose whatsoeverof its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any assets or business;
(xi) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement;
(xii) any lease or other contract (whether real, personal or mixed, tangible or intangible) pursuant to which the annualized rent or lease payments are, or are reasonably expected to be, in excess of $25,000; and
(oxiii) Contracts related any contract not listed above that is material to capital projects the financial condition, results of operations or business of Company or any of its Subsidiaries.
(b) Company and capital expenditures each of its Subsidiaries have performed in excess all material respects all of $100,000 the obligations required to be performed by them and are entitled to all accrued benefits under, and are not alleged (or otherwise to the Knowledge of Company) to be in default in respect of, each Material Contract to which Company or any of its Subsidiaries is a party or by which Company or any of its Subsidiaries is bound, except as would not, individually or $250,000 in the aggregate, be material to Company and its Subsidiaries. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) Each of the Disclosure Schedule, the Material Contracts is valid and binding on Company has made available to Purchaser true or its applicable Subsidiary and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect effect, without amendment, and is valid and enforceable against the applicable Target there exists no default or event of default or event, occurrence, condition or act, with respect to Company andor any of its Subsidiaries or, to the Knowledge of Company’s Knowledge, the other parties thereto in accordance with their terms, except respect to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party theretocontracting party, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or the giving of notice, the lapse of time or boththe happening of any other event or condition, may give rise to, serve as would become a basis for, default or would constitute an event of default under any Material Contract Contract, except, as would not, individually or result in a termination thereof the aggregate, be material to Company and its Subsidiaries. True, correct and complete copies of all Material Contracts have been furnished or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereundermade available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (SCBT Financial Corp), Merger Agreement (Savannah Bancorp Inc)
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains a list 4.15(a) sets forth all of the following types of Contracts (and each amendment or modification thereto) to which any Target Company the Earthbound Group is a party, party or by which such Target Company or its properties or assets are it is bound, as of the date of hereof, other than Contracts in connection with the transactions contemplated by this Agreement and the Ancillary Agreements (such Contractsfor avoidance of doubt, together with Contracts relating to the Intellectual Property LicensesSPP Acquisition shall not be excluded under this Section 4.15(a) as transactions contemplated by this Agreement) (collectively, each, a the “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers any labor union or association representing any employee of the Company Group or any collective bargaining contract;
(ii) management Contracts and Contracts with Material Customers, Contracts pursuant to which any Target Company independent contractors or consultants that are not cancelable without (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; penalty or further payment or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000more than 60 days’ notice;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(hiii) Contracts containing any covenant covenants of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging the Earthbound Group not to compete in any line of business or geographic region with any Person, (ii) soliciting Person in any customers, suppliers, employees geographical area or contractors not to solicit or hire any Person with respect to employment or covenants of any other Person, Person not to compete with the Earthbound Group in any line of business or (iii) competing in any geographical area or not to solicit or hire any Person with any Personrespect to employment;
(iiv) Contracts that contain for joint ventures, strategic alliances, partnerships, licensing arrangements, or provide for “most favored nations” termssharing of profits or proprietary information;
(jv) Contracts with relating to any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition sale of any business, of the assets or securities, or any equity or debt investment in or any loan of the Earthbound Group to any Person; provided, that be made by the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (Earthbound Group other than sales of assets in the ordinary course of business;
(vi) Contracts relating to any acquisition made by the Earthbound Group of any operating business or the capital stock of any other Person;
(vii) Contracts containing most favored nations or similar pricing provisions;
(viii) Contracts relating to the incurrence of Indebtedness, or the making of any loans, in each case involving amounts in excess of $100,000;
(ix) Contracts which involve the expenditure of more than $100,000 per year and are not terminable by the Earthbound Group without penalty on notice of one hundred eighty (180) days or less, including the insurance policies listed on Schedule 4.22(a);
(lx) Contracts providing licenses to or by the Earthbound Group for the settlement of any material ProceedingIntellectual Property, other than for commercially available off-the-shelf software;
(mxi) limited liability company agreementsContracts relating to any Co-Packed Products and other Contracts obligating the Earthbound Group to provide or obtain products or services or requiring the Earthbound Group to purchase or sell a stated portion of their requirements or outputs, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing in each case if such Contracts require payments in excess of profits, losses, costs or liabilities by any Target Company with any other Person.$250,000 per annum;
(nxii) outstanding powersContracts relating to settlements of (A) claims related to or resulting from the E. Coli Outbreak or (B) any claim where the aggregate payment to settle such claim exceeds $250,000 (other than Contracts for settlements entered into prior to January 1, 2009) or (C) any claim involving any nonmonetary consideration for such settlement restricting the business of Earthbound Group in any material manner post-of-attorney granted by Closing;
(xiii) Contracts to which any Affiliate or current or former officer, director, equity holder, manager, or member of the Company for any purpose whatsoeverEarthbound Group is a party; and
(oxiv) Contracts related to capital projects of guaranty, surety or indemnification, direct or indirect, by any member of the Earthbound Group, and capital expenditures in excess of $100,000 individually or $250,000 each case other than such Contracts entered into in the aggregate. Other than ordinary course of business.
(b) Except as set forth on Schedule 4.15(b), the Intellectual Property Licenses Earthbound Group has not received any written notice of any material default or event that with notice or lapse of time, or both, would constitute a material default by the Company is not required to disclose on Section 3.17(aGroup under any Material Contract.
(c) Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against binding obligation of such member of the applicable Target Company Earthbound Group which is a party thereto, and, to the Company’s Knowledge, of the other parties thereto enforceable against each of them in accordance with their its terms, except subject to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract andenforceability, to the Company’s Knowledgegeneral principles of equity, each other Person that including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is party to such Material Contract is sought in compliance a proceeding at Law or in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default underequity). The Company Earthbound Group has neither provided nor received any notice made available to Buyer true, correct and complete copies of any intention to terminate any all of the Material Contract. To Contracts together with all amendments, modifications or supplements thereto as in effect on the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderdate hereof.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (WHITEWAVE FOODS Co)
Material Contracts. (a) Section 3.10 4.14(a) of the Disclosure Schedule contains a list sets forth all of the following types of Contracts (and each amendment or modification thereto) to which any Target Company Entity is a party, party or by which such Target Company any of them or its their respective assets of properties or assets are boundbound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other Contracts (A) with any Seller or Affiliate thereof or any current or former officer, director, stockholder or Affiliate of any Company Entity or (B) between the Sellers with respect to the Company;
(ii) Contracts for the sale of any of the assets of any Company Entity other than in the Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase any of its assets;
(iii) Contracts containing change of control or other similar provisions that are material to the Company Entities;
(iv) Contracts establishing or governing the material terms of any joint venture, partnership, strategic alliance, collaboration, material research and development project, sharing of profits or proprietary information or similar arrangement;
(v) Contracts with Material Suppliers respect to any options, co-existence agreements, rights, escrows, licenses, covenants not to assert or ▇▇▇, or releases of any kind relating to rights in or to any Company Intellectual Property that have been granted (A) to the Company Entities, or (B) by the Company Entities to any other Person (other than standard and customary confidentiality agreements executed in the Ordinary Course of Business);
(vi) Contract Manufacturing Agreements or other Contracts with Material Customersthat relate to the research, development, distribution, marketing, supply, co-promotion or manufacturing of any Company Product;
(vii) Contracts pursuant to which any Target Company (i) made payments goods or materials are supplied to any third party in the twelve Company Entity from an exclusive source (12) month period prior to the date hereofi.e., in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000“single source” supply Contracts);
(bviii) collective bargaining agreements and Contracts containing covenants of any Company Entity not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment or covenants of any other contracts Person not to compete with any labor unionsCompany Entity in any line of business or in any geographical area or not to solicit or hire any person with respect to employment;
(cix) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by any Company Entity of any operating business or material assets or the capital stock of any other than Benefit PlansPerson;
(x) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of any Company Entity, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(xi) the form of Contract pursuant to which any Company Entity collects and compiles data;
(xii) Contracts obligating any Company Entity to provide or obtain products or services for a period of one (1) year or more or requiring a Company Entity to purchase or sell a stated portion of its requirements or outputs;
(xiii) Contracts under which any Company Entity has made advances or loans to any other Person;
(xiv) Contracts providing for severance, retention, change in control or other similar payments, which require payments exceeding $100,000;
(xv) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide providing for annual cash compensation in excess of $150,000 per year100,000;
(dxvi) material Contracts with independent contractors or consultants (or similar arrangements) that are not cancelable without penalty or further payment and without more than 30 days’ notice;
(xvii) Contracts evidencing Indebtedness of guaranty, surety or indemnification, direct or indirect, by any Company Entity;
(xviii) Contracts (or group of related Contracts) which involve the Target Companies expenditure of more than $250,000 annually or $1,000,000 in excess of the aggregate or require performance by any party more than one (1) year from the date hereof and that are not cancelable without penalty or further payment and without more than 90 days’ notice;
(xix) License Agreements either (A) with annual payments exceeding $50,000, including any loan ; or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or (B) pursuant to which any Target Company Entity has guaranteed granted to, or licensed from, any liabilities Person any rights (or obligations immunities) with respect to any Intellectual Property, Software or other Technology (other than nonexclusive licenses granted to customers on standard terms in the Ordinary Course of any of PersonBusiness);
(exx) Contracts pursuant to which any Company Entity has continuing obligations or interests involving royalties (or other amounts calculated based upon the revenues or income of any Company Entity), license fees or similar payments (but exclusive of any Material Contracts listed in Section 4.14(a)(xix) of the Disclosure Schedule);
(xxi) Real Property Leases;
(fxxii) Contracts with Material Suppliersconcerning leases of personal property requiring rental payments exceeding $100,000;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(jxxiii) Contracts with any Governmental AuthorityBody involving annual payments exceeding $100,000;
(kxxiv) Contracts with any of the largest customers or largest suppliers of the Company Entities, as identified in Section 4.21 of the Disclosure Schedule;
(xxv) Contracts entered into after January 1, 2012 related to the compromise or settlement of any litigation, arbitration or other proceding, other than Contracts entered into with former employees of the Company in connection with termination of employment involving a settlement amount of $50,000 or less;
(xxvi) Contracts containing any mergermost-favored nations undertakings, consolidation or other business combinationrights of first refusal, or price protection mechanisms with respect to the acquisition or disposition sales to customers of any business, assets or securitiesCompany Entity, or any equity or debt investment in or any loan to any Person; provided, that other similar provisions restricting the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales business of assets in the ordinary course of business)Company Entities;
(lxxvii) Contracts providing for the settlement of with any material Proceedinglabor union or any collective bargaining agreement;
(mxxviii) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing Contracts involving any outstanding powers of profits, losses, costs or liabilities by attorney executed on behalf of any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverEntity; and
(oxxix) Contracts related that are otherwise material to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Entities.
(b) Except as disclosed in Section 3.17(a4.14(b) of the Disclosure Schedule, each of the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against binding obligation of the applicable Target Company andEntity which is party thereto, and to the Knowledge of the Company’s Knowledge, of the other parties thereto enforceable against each of them in accordance with their terms, its terms (except to the extent enforcement as enforceability may be affected limited by Enforceability Exceptionsbankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies (regardless of whether enforcement is sought in a proceeding at Law or in equity)). Each Target No Company that is a party to a Material Contract Entity is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such default under any Material Contract. Neither the Company , nor, to the Knowledge of the Company’s Knowledge, is any other party thereto, is to any Material Contract in breach of or default under (thereunder. To the Knowledge of the Company, there is no event or is alleged to be in existing condition that, with the lapse of time, giving of notice or both, would constitute a breach of or default under)under any Material Contract. No party to any of the Material Contracts has exercised in writing any termination rights with respect thereto, and no party has given written notice of any significant dispute with respect to any Material Contract. The Company has neither provided nor received any notice delivered to Purchaser true, correct and complete copies of any intention to terminate any all of the Material Contract. To the Company’s KnowledgeContracts, no Occurrence has occurred together with all amendments, modifications or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereundersupplements thereto.
Appears in 2 contracts
Sources: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement (Cerecor Inc.)
Material Contracts. Section 3.10 of the Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Except for Contracts with Material Suppliers and Contracts with Material Customersor commitments disclosed in Schedule 3.12, Contracts pursuant the Company is not a party to which any Target Company or subject to:
(i) made payments to any third party in the twelve (12) month period prior to the date hereoflease, in excess rental, conditional sale or similar Contract providing for annual rentals of $500,000; 10,000 or more;
(ii) received payments from any third party Contract relating to indebtedness, guarantee, capital lease, credit or financing or other Contract for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset) or any other Liability, except Contracts relating to indebtedness or Liabilities incurred in the twelve (12) month prior to the date hereof, ordinary course of business consistent with past practices in excess of an amount not exceeding $500,00010,000;
(biii) collective bargaining agreements and any Contract for the purchase of materials, supplies, goods, services, equipment or other contracts with any labor unionsassets providing for annual payments by the Company of $10,000 or more;
(civ) Contracts (any sales, distribution or other than Benefit Plans) similar Contract providing for the sale by the Company of materials, supplies, goods, services, equipment or other assets providing for annual payments to the Company of $10,000 or more;
(v) any agency, dealer, sales representative or other similar Contract;
(vi) any employment or engagement of consulting Contract, and any Contract with any officer, director, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess 10% stockholder of $150,000 per yearthe Company;
(dvii) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000any partnership, including any loan joint venture or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or other similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of PersonContract;
(eviii) any license, franchise agreement or Contract in respect of similar rights granted to or held by the LeasesCompany;
(fix) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant Contract or other document that limits the freedom of a Target the Company that restricts a Target Company or any of its Affiliates from (i) engaging to compete in any line of business or geographic region with any Person, (ii) soliciting Person or in any customers, suppliers, employees geographic area or contractors which would so limit the freedom of any other Person, or (iii) competing with any Personthe Company after the Closing Date;
(ix) Contracts that contain or provide any Contract for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition of any Person or business thereof or the disposition of any businessmaterial assets of the Company, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreementsbusiness consistent with past practices, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in each case involving payments in excess of $100,000 individually 10,000 or as contemplated by this Agreement;
(xi) any Contract requiring capital expenditures after the date hereof in an amount in excess of $250,000 10,000 in any calendar year;
(xii) any Contract relating to the Company’s Proprietary Rights or the use by the Company of the Proprietary Rights of any other Person; or
(xiii) any other Contract or commitment not made in the aggregate. Other than ordinary course of business that is material to the Intellectual Property Licenses that the Company is not Company.
(b) Each Contract and commitment required to disclose on Section 3.17(a) be disclosed in Schedule 3.12 is a valid and binding agreement of the Disclosure ScheduleCompany, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect effect, and is valid and enforceable against the applicable Target Company andCompany, and to the Knowledge of the Company’s Knowledge, the other parties thereto thereto, in accordance with their its terms, except subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors’ rights generally and to the extent enforcement may be affected by Enforceability Exceptionsgeneral principles of equity. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract andExcept as disclosed on Schedule 3.12, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither neither the Company nor, to the Knowledge of the Company’s Knowledge, any other party thereto, thereto is in breach of or default in any material respect under (the terms of any such Contract or is alleged to be in breach or default under)commitment. The Company has neither provided nor not received any notice of any intention breach or violation of, or default under, any Contract or commitment required to terminate be disclosed in Schedule 3.12 that could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, and there has not occurred any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists whichevent that, with notice or the lapse of time or giving of notice or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract such a breach or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderdefault.
Appears in 2 contracts
Sources: Stock Purchase Agreement (World Surveillance Group Inc.), Stock Purchase Agreement (World Surveillance Group Inc.)
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains a list 5.14(a) sets forth, all of the following types of Contracts (and each amendment or modification thereto) to which any Target Company Purchased Entity is a party, party or by which such Target Company any of them or its properties or assets their respective Purchased Entity Assets are boundbound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and any Seller or Affiliate thereof or any current or former officer, director, stockholder or Affiliate of any Purchased Entity (other than a Purchased Entity);
(ii) Contracts with Material Customers, Contracts pursuant to which for the sale of any Target Company (i) made payments material assets of any Purchased Entity other than in the Ordinary Course of Business or for the grant to any third party Person of any preferential rights to purchase any of its material assets;
(iii) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information;
(iv) Contracts containing covenants of any Purchased Entity not to compete in the twelve any line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment or covenants of any other Person not to compete with any Purchased Entity in any line of business or in any geographical area or not to solicit or hire any person with respect to employment;
(12v) month period prior Contracts relating to the date hereofacquisition (by merger, purchase of stock or assets or otherwise) by any Purchased Entity of any operating business or material assets or the capital stock of any other Person;
(vi) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the material assets of any Purchased Entity;
(vii) all Contracts providing for payments by or to any Purchased Entity in excess of $500,000; 50,000 in any fiscal year or (ii) received payments from any third party $200,000 in the twelve (12) month prior to aggregate during the date hereof, in excess of $500,000term thereof;
(bviii) collective bargaining agreements and all Contracts obligating any other contracts with any labor unionsPurchased Entity to provide or obtain products or services for a period of one year or more;
(cix) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverconsulting basis; and
(ox) Contracts related development agreements setting forth duties and obligations relating to capital projects the Properties, public disclosure reports issued by the Arizona Department of Real Estate, and capital expenditures in excess storm water plans filed with the Arizona Department of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aEnvironmental Quality.
(b) Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and binding obligation of any Purchased Entity which is party thereto, and of the other parties thereto enforceable against each of them in accordance with its terms. No Purchased Entity is in default under any Material Contract, nor, to the applicable Target Company Knowledge of Sellers, is any other party to any Material Contract in breach of or in default thereunder, and, to the Company’s KnowledgeKnowledge of Sellers, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company no event has occurred that is a party to a Material Contract is in compliance in all material respects with the terms and requirements lapse of such Material Contract and, to time or the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements giving of such Material Contract. Neither the Company nor, to the Company’s Knowledge, notice or both would constitute a breach or default of any Purchased Entity or any other party thereunder. Any payments due under each Material Contract have been timely made by the applicable Purchased Entity. No party to any of the Material Contracts has exercised any termination rights with respect thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company and no party has neither provided nor received any given notice of any intention significant dispute with respect to terminate any Material Contract. To Sellers have delivered or made available to Purchaser true, correct and complete copies of all of the Company’s KnowledgeMaterial Contracts, no Occurrence has occurred together with all amendments, modifications or exists whichsupplements thereto and assignments thereof, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderif any.
Appears in 2 contracts
Sources: Master Transaction Agreement (Avatar Holdings Inc), Master Transaction Agreement (Avatar Holdings Inc)
Material Contracts. Section 3.10 of Except for this Agreement and the Disclosure Related Documents and except as set forth on Schedule contains a list of 2.10:
(a) There are no agreements, understandings, instruments, contracts or transactions (whether written or oral) between the following types of Contracts Company or its subsidiaries and any Affiliate (and each amendment as defined in the Shareholders Agreement).
(b) There are no agreements, understandings, instruments, contracts or modification theretotransactions (whether oral or written) to which the Company or any Target subsidiary of the Company is a party, party or by which such Target it or any of its assets is bound that involve (i) obligations of, or payments by or to, the Company or its properties subsidiaries in excess of $250,000 in any twelve (12) month period, (ii) the issuance of debt or assets are bound, as equity securities of the date Company or its subsidiaries or the incurrence of this Agreement indebtedness or the pledge or grant of any security interest or encumbrance on the Company’s or its subsidiaries’ assets, (such Contractsiii) restrictions on the development, together with provision or distribution of the Intellectual Property LicensesCompany’s or its subsidiaries’ products or services, (iv) any employment, severance or consulting agreement, (v) the disposition of a material portion of the Company’s or its subsidiaries’ assets or the acquisition of the business or securities or other ownership interests of another Person, (vi) any agreement under which the Company or its subsidiaries is restricted from carrying on any line of business or carrying on business in any geographic location, (vii) any Reinsurance Contract or (viii) any fees or payments to any Person (including any broker, investment bank or other finder) relating to any financing (public or private) or the sale of the enterprise value of the Company or its subsidiaries (through merger, consolidation, asset transfer, equity transfer, license or otherwise) (each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;).
(c) Contracts (other than Benefit Plans) for the employment or engagement Schedule 2.10 contains a complete list of any officerall Material Contracts. With respect to each Material Contract, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each such Material Contract is legal, valid, binding, enforceable (subject to the Enforceability Exceptions) and in full force and effect and is valid and enforceable against the applicable Target Company andor its subsidiaries, to as applicable, (ii) neither the Company’s Knowledge, the other parties thereto in accordance with their termsits subsidiaries, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the knowledge of the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledgematerial respect, and no Occurrence event has occurred or exists which, that with notice or lapse of time would constitute a material breach or bothdefault on the part of the Company or its subsidiaries or, may give rise toto the knowledge of the Company, serve as a basis forany other party thereto, or would constitute an event of default permit termination, modification or acceleration, under any such Material Contract and (iii) neither the Company or result in a termination thereof or would cause or permit its subsidiaries nor, to the acceleration or knowledge of the Company, any other changes party thereto, has repudiated any provision of any right or obligation or the loss of any material benefit thereundersuch Material Contract.
Appears in 2 contracts
Sources: Class a Common Share Subscription Agreement (Essent Group Ltd.), Class a Common Share Subscription Agreement (Essent Group Ltd.)
Material Contracts. Section 3.10 of the Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than for Contracts with Material Suppliers entered into after the date hereof and Contracts with Material Customersprior to the Closing (which if material will be identified to the Purchaser in writing prior to the Closing), Contracts pursuant to which any and contracts listed in other Schedules hereto, except as set forth in Schedule 3.07(a), the Target Company is not a party to, nor is it bound by:
(i) made Any Contracts with any current or former officer, director, employee, consultant or stockholder or any partnership, corporation, joint venture or any other entity in which any such Person has an interest;
(ii) Any agreements with any labor union or association representing any employee;
(iii) Any Contracts or other agreements for the provision of products or services by the Target involving annual payments to any third party in the twelve (12) month period prior to the date hereof, Target in excess of $500,000; 100,000;
(iv) Any Contracts or (ii) received payments from any third party in other agreements for the twelve (12) month prior provision of products or services to the date hereof, Target involving annual payments by the Target in excess of $500,000100,000;
(bv) collective bargaining Any Contracts or other agreements and for the sale of any other contracts with of the Target’s assets or properties having an aggregate value exceeding $100,000 or for the grant to any labor unionsPerson of any preferential rights to purchase any of the Target’s assets or properties;
(cvi) Contracts (other than Benefit Plans) for Any joint venture agreements relating to the employment assets, properties or engagement business of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearthe Target;
(dvii) Any Contracts evidencing Indebtedness or other agreements containing covenants not to compete, non-solicitation clauses or other restrictive covenants which limit the freedom of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging engage in any line of business or geographic region to contract with or to solicit or hire any Person, (ii) soliciting Person in any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Persongeographical area;
(iviii) Contracts that contain Any mortgages, indentures, guarantees, bonds, loans or provide for “most favored nations” terms;credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or the extension of credit; or
(jix) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation Any other material Contract or other business combination, material agreement whether or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets made in the ordinary course of businessbusiness (collectively, the “Listed Material Contracts”);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(nb) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) Each of the Disclosure ScheduleMaterial Contracts listed on Schedule 3.07(a) hereto and each of the material Contracts set forth on the other Schedules hereto (collectively, the Company has made available to Purchaser true and complete copies of each “Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts”) is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledgeeffect, the other parties thereto Target is not in accordance with their termsmaterial breach of any of the provisions of any such contract, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the CompanySeller’s Knowledge, is any other party theretoto any such contract in default thereunder, is in breach nor does any event or condition exist which with notice or the passage of time or both would constitute a default under (or is alleged to be in breach or default under)thereunder. The Company has neither provided nor received any notice consummation of any intention to terminate the transactions contemplated herein will not cause a breach, termination, modification or acceleration of any Material Contract. To .
(c) Except as set forth on Schedule 3.07(c), the Company’s Knowledge, Target has no Occurrence Loss Contracts and has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or no outstanding bids for potential customer Contracts that could reasonably be expected to 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 material benefit thereunderLoss Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Metrologic Instruments Inc), Stock Purchase Agreement (Essex Corp)
Material Contracts. (a) Section 3.10 3.08(a) of the Disclosure Schedule contains Schedules sets forth a true, correct and complete list of the following types of Contracts (and each amendment or modification thereto) to which any Target Group Company is a party, or by which such Target Company or its properties or assets are bound, party as of the date hereof (and Sellers have made available to Buyer true, correct and complete copies of this Agreement (all such Contracts, together with the Intellectual Property Licensesall amendments, each, a “Material Contract”modifications or supplements thereto):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments any Contract relating to the formation, creation, governance, economics or control of any partnership, joint venture, strategic alliance or similar arrangement with any Person that is not a Group Company;
(ii) any Contract relating to any third party in options, rights (preemptive or otherwise), warrants, calls or convertible securities of the twelve Purchased Entities;
(12iii) month period prior any Contract relating to (A) the date hereof, Indebtedness of any Group Company in excess of $500,000; 100,000 or (iiB) received payments from the mortgage or pledge of, or otherwise creating an Encumbrance (other than a Permitted Encumbrance) on, any third party in of the twelve (12) month prior to the date hereof, Purchased Assets in excess of $500,000100,000 (in each case, other than intercompany Indebtedness amongst the Group Companies);
(biv) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect Contract relating to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing properties for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures consideration in excess of $100,000 individually (whether by merger, sale of stock, sale of assets or $250,000 otherwise) as to which any material earn-out, indemnification or deferred or contingent payment obligations remain outstanding (in each case, excluding for the avoidance of doubt, purchase of inventory in the aggregate. Other than Ordinary Course);
(v) any Lease with respect to the Leased Real Property;
(vi) any Contract for the lease of tangible personal property to or from any Person providing for lease payments in excess of $50,000 per annum;
(vii) any Contract with any Material Supplier;
(viii) any Contract with any Governmental Authority;
(ix) any Contract that (A) prohibits or limits the freedom of any Group Company to compete in any line of business with any Person or in any geographic area or (B) contains exclusivity obligations or restrictions binding on any Group Company or (C) grants any right of first refusal or right of first offer obligations or restrictions to any Person;
(x) any material Contract under which any Group Company (A) has licensed any Intellectual Property Licenses from a third party (other than non-exclusive licenses for commercially available or off-the-shelf software or software that is subject to click through or shrink wrap agreements), or (B) grants to any third party any right to use or exploit any Purchased Intellectual Property (other than non-exclusive licenses of any Purchased Intellectual Property granted in the Company Ordinary Course);
(xi) any Service Provider Agreement that (i) provides for annual base compensation in excess of $150,000 or (ii) is not required terminable at-will, has more than a sixty (60) day contractual termination notice period or provides for contractual severance or change of control benefits; and
(xii) any Contract that is a Collective Bargaining Agreement.
(b) With respect to disclose each Contract set forth on Section 3.17(a3.08(a) of the Disclosure ScheduleSchedules, and subject to entry of the Company has made available Sale Order and any other applicable Order necessary to Purchaser true consummate the transactions contemplated by this Agreement and complete copies the other Transaction Documents and the assumption by Buyer of each Material the applicable Contract in accordance with applicable Law (including satisfaction of all modificationsapplicable Cure Costs), amendments and supplements thereto and waivers thereunder). Each Material except (x) as a result of the commencement of the Chapter 11 Cases or (y) with respect to any Contract that has previously expired in accordance with its terms, been terminated, restated, or replaced, (i) such Contract is in full force and effect and is constitutes the legal, valid and binding obligation of the Group Company party thereto and, to the Knowledge of Sellers, the counterparty thereto, enforceable against the applicable Target such Group Company and, to the Company’s KnowledgeKnowledge of Sellers, the other parties counterparty thereto in accordance with their termsits terms and conditions, except subject to the extent enforcement may be affected by Enforceability Exceptions. Each Target Bankruptcy Law; (ii) the Cure Costs set forth in the Original Contract & Cure Schedule are true and correct; (iii) except as set forth on Section 3.08(b)(iii) of the Disclosure Schedules, neither the Group Company party thereto nor, to the Knowledge of Sellers, the counterparty thereto is in material breach or material default thereof that is a party would permit or give rise to a Material Contract is in compliance in all material respects with right of termination, modification or acceleration thereunder; and (iv) except as set forth on Section 3.08(b)(iv) of the terms and requirements of such Material Contract Disclosure Schedules, no Group Company and, to the Company’s KnowledgeKnowledge of Sellers, each no counterparty thereto, has commenced any Proceeding against any other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements or given or received any written notice of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under such Contract that has not been withdrawn or dismissed, except, in the cases of clauses (iii) and (iv), for breaches or is alleged defaults caused by or resulting from, or filings or objections made in, the Chapter 11 Cases or which would not, individually or in the aggregate, reasonably be expected to be in breach material and adverse to the Business, the Purchased Assets, the Purchased Entities or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s KnowledgeAssumed Liabilities, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve taken as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderwhole.
Appears in 2 contracts
Sources: Asset and Equity Purchase Agreement (iMedia Brands, Inc.), Asset and Equity Purchase Agreement (iMedia Brands, Inc.)
Material Contracts. (a) Section 3.10 4.14 of the Disclosure Schedule contains sets forth a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, in effect as of the date of this Agreement hereof to which the Company is a party (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than all Contracts not fully performed providing for the performance of services or delivery of goods or materials by or to the Company and which requires consideration to be furnished, or 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 this Agreement;
(ii) all Contracts that require the Company to purchase its total requirements of any product or service from a Third Party;
(iii) all Contracts providing for the Company to be the exclusive provider of any product or service to any Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of securities, sale of assets, or otherwise);
(v) all Contracts with Material Suppliers distributors and sales representatives;
(vi) all Contracts with Material Customersany Governmental Authority;
(vii) all Contracts that limit or purport to limit the 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 third person “most favored nation” status or any type of special discount rights;
(viii) all Contracts for any joint venture, partnership, or similar arrangement by the Company;
(ix) agreements which relate to Indebtedness (excluding, for the avoidance of doubt, Contracts pursuant evidencing liabilities with respect to which any Target Company (i) deposits and accounts, trade payables, letters of credit, or capital leases made payments to any third party in the twelve ordinary course of business);
(12x) month period prior 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 the date hereofall sales or purchases thereunder, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,00050,000;
(bxii) collective bargaining agreements and any other contracts each Contract with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any director, officer, employee employee, or other Person consultant of the Company on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation requiring the Company to pay severance or separation payments, change in excess of $150,000 per yearcontrol payments, or any retention or similar transaction bonus;
(dxiii) Contracts evidencing Indebtedness of each Contract between or among the Target Companies in excess of $50,000Company, including on the one hand, and any loan Seller or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations Affiliate of any of Person;
(e) Seller on the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverhand; and
(oxiv) all Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) enter into any of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each foregoing.
(b) All Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is Contracts are in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements Knowledge of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default each case in accordance with the express terms thereof. There does not exist under (or is alleged to be in any Material Contract any material violation, breach or default under). The Company has neither provided nor received any notice event of any intention to terminate any Material Contract. To the Company’s Knowledgedefault, no Occurrence has occurred or exists whichalleged material violation, with breach, or event of default, or event or condition that, after notice or lapse of time or both, may give rise towould constitute a material violation, serve as a basis forbreach, or would constitute an event of default under thereunder on the part of the Company including, without limitation, in connection with any Indebtedness. The Company has not, and to the Knowledge of the Company no party to any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes has, repudiated any provision of any right such Material Contract. The Company has not received written notice that any party to a Material Contract intends to cancel or obligation terminate such Material Contract.
(c) The Sellers have delivered to the Purchaser a true, correct, and complete copy of each written Material Contract, including all amendments, waivers, supplements, or modifications thereto, along with a summary of each of the loss material terms of any material benefit thereundereach oral Material Contract.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Diego Pellicer Worldwide, Inc), Equity Purchase Agreement (Siyata Mobile Inc.)
Material Contracts. Section 3.10 of the (a) Company Disclosure Schedule contains a list 4.13(a) sets forth, by reference to the applicable subsection of this Section 4.13(a), all of the following types of Contracts (and each amendment or modification thereto) to which any Target the Company is a party, party or by which such Target Company it or its assets or properties or assets are boundbound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and any current or former officer, director, member or Affiliate of the Company;
(ii) Contracts with Material Customers, any labor union or association representing any Employee of the Company;
(iii) Contracts pursuant to which for the sale of any Target of the assets of the Company (i) made payments other than in the Ordinary Course of Business or for the grant to any third party Person of any preferential rights to purchase any of its assets;
(iv) Contracts for joint ventures, strategic alliances, partnerships, or sharing of profits or proprietary information;
(v) Contracts containing covenants of the Company not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any Person with respect to employment or covenants of any other Person not to compete with the twelve Company in any line of business or in any geographical area or not to solicit or hire any Person with respect to employment;
(12vi) month period prior Contracts relating to the date hereofacquisition (by merger, purchase of stock or assets or otherwise) by the Company of any operating business or material assets or the capital stock of any other Person;
(vii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of the Company, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(viii) each purchase Contract giving rise to Liabilities of the Company in excess of $500,000; 25,000;
(ix) each Contract providing for payments by or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, Company in excess of $500,00025,000 in any fiscal year or $50,000 in the aggregate during the term thereof;
(bx) collective bargaining agreements and any other contracts with any labor unionsall Contracts obligating the Company to provide or obtain products or services for a period of one year or more or requiring the Company to purchase or sell a stated portion of its requirements or outputs;
(cxi) Contracts under which the Company has made advances or loans to any other Person, except advances to Employees of the Company in the Ordinary Course of Business;
(xii) Contracts providing for severance, retention, change in control or other than Benefit Planssimilar payments;
(xiii) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide providing annual cash compensation in excess of $150,000 per year50,000;
(dxiv) management Contracts evidencing Indebtedness of the Target Companies and Contracts with independent contractors or consultants (or similar arrangements) in excess of $50,000, including any loan 50,000 that are not cancelable without penalty or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Personfurther payment and without more than thirty (30) days’ notice;
(exv) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by the LeasesCompany;
(fxvi) Contracts with Material Suppliers(or group of related contracts) which involve the expenditure of more than $25,000 annually or $100,000 in the aggregate or require performance by any party more than one year from the date hereof unless in the Ordinary Course of Business;
(gxvii) all Intellectual Property Licenses, royalty Contracts with Material Customersand other Contracts relating to any Intellectual Property (except licenses pertaining to “off-the-shelf” commercially available Software used pursuant to shrink-wrap or click-through license grants on reasonable terms for a license fee of no more than $1,000);
(hxviii) Contracts containing any covenant of a Target Company that restricts a Target Company incentives, grants or any of its Affiliates other agreements from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(kxix) Contracts entered into in connection with any mergerfor services from lawyers, consolidation or other business combinationaccountants, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith financial advisors and consultants (other than sales of assets in the ordinary course of business“Professional Service Providers”);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(oxx) Contracts related that are otherwise material to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aCompany.
(b) Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against the applicable Target Company and, to binding obligation of the Company’s Knowledge, and of the other parties thereto thereto, enforceable against each of them in accordance with their termsits terms and, upon consummation of the transactions contemplated by this Agreement, shall, except to the extent enforcement may be affected by Enforceability Exceptionsas otherwise stated in Company Disclosure Schedule 4.13(b), continue in full force and effect without penalty or other adverse consequence. Each Target The Company that is a party to a Material Contract is not in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such default under any Material Contract. Neither the Company , nor, to the Knowledge of the Company’s Knowledge, is any other party thereto, is to any Material Contract in breach of or default under (thereunder, and, to the Knowledge of the Company, no event has occurred that with the lapse of time or is alleged to be in the giving of notice or both would constitute a material breach or default under)by the Company or any other party thereunder. Notwithstanding the generality of the foregoing, the Company is not in material default under the MOSA nor, to the Knowledge of the Company, is any other party to the MOSA in breach of or default thereunder, and, to the Knowledge of the Company, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default by the Company or any other party thereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto, and no such party has given notice of any significant dispute with respect to any Material Contract. The Company has, and will transfer to Purchaser at the Closing, good and valid title to the Material Contracts, free and clear of all Liens other than Permitted Exceptions. The Company has neither provided nor received delivered to Purchaser true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto. The Company is not and at Closing shall not be, obligated to make any notice payments to Professional Service Providers related to the Transaction, the wind down and liquidation of the Business or otherwise other than as set forth on Company Disclosure Schedule 4.14(a)(xix) or as approved by Newco.
(c) Company Disclosure Schedule 4.13(c) sets forth a complete and accurate list of all consents, waivers, approvals or authorizations of any intention Person required to terminate any transfer the Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderContracts.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Central Iowa Energy, LLC), Asset Purchase Agreement (Western Iowa Energy, L.L.C.)
Material Contracts. (a) Section 3.10 2.14(a) of the Company Disclosure Schedule contains sets forth a correct and complete list of the following types of Contracts all binding contracts, agreements, commitments, instruments or obligations (and each amendment whether written or modification theretooral, contingent or otherwise) (x) to which any Target the Company is a party, or by which such Target Company party or its properties or assets are is bound, as and under which any party has continuing obligations, (y) which constitute Purchased Assets or (z) by which any Purchased Assets will be bound or subject following the Closing, in each case (of clauses (x) – (z)) which falls into any of the date of this Agreement following categories (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or Franchise Agreements;
(ii) received payments from all contracts that contain any third party in covenant (A) limiting the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness right of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging Asset Seller to engage in any line of business or geographic region to compete with any Person, (ii) soliciting Person in any customers, suppliers, employees line of business or contractors of in any other Persongeographic location, or (iiiB) competing prohibiting the Company or any Asset Seller from engaging in business with any PersonPerson or levying a fine, charge or other payment for doing so;
(iiii) Contracts that contain or provide for “most favored nations” termsall contracts resulting in payment by the Company to a third party in excess of $100,000 annually, in any individual case;
(jiv) Contracts with all contracts for the performance of services by the Company or any Governmental AuthorityAsset Seller in excess of $100,000 annually, in any individual case;
(kv) Contracts entered into in connection with all contracts that require the Company to purchase more than 50% of its total requirements of any merger, consolidation product or other business combination, service from a third party or with respect that contain “take or pay” provisions;
(vi) all contracts that relate to the acquisition or disposition by the Company of any businessownership interest in any other Person or business enterprise;
(vii) all contracts for the incurrence of indebtedness for borrowed money or the extension of credit (whether incurred, assets assumed, guaranteed or securitiessecured by any asset), or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets accounts receivables and payables in the ordinary course of business)business consistent with past practice;
(lviii) Contracts providing for all contracts that grant to any third party a Lien (other than a Permitted Lien) on all or any of the settlement of Company’s properties and assets or any material ProceedingPurchased Assets;
(mix) limited liability company all contracts regarding any Business Intellectual Property, including related maintenance and support agreements;
(x) all contracts that provide for the assumption of any Tax, environmental or other Liability of any Person, other than pursuant to customary indemnification provisions;
(xi) all agency, promotion, market research, marketing consulting and advertising contracts, other than Franchise Agreements;
(xii) all contracts containing any continuing “earn-out” or other contingent payment obligations of the Company or any Asset Seller; or
(xiii) all contracts that involve any joint venture, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a similar revenue sharing arrangement of profits, losses, costs the Company or liabilities by any Target Company with any other PersonAsset Seller.
(nb) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company The Stockholder has made available to Purchaser true correct and complete copies of each all of the Material Contract Contracts (including all modifications, amendments and supplements thereto and waivers thereunderother than any intercompany agreements that will be terminated as of Closing). Each All of the Material Contract is Contracts are valid, binding and in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptionsthey have previously expired or terminated in accordance with their terms. Each Target Neither the Company that is a party to a Material Contract nor any Asset Seller is in compliance in all material respects with the terms violation of or material default under any Material Contract, and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that there is party to such Material Contract is in compliance in all no existing or claimed material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, violation or material default by any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence No event or circumstance has occurred or exists whichthat, with notice or lapse of time or both, may give rise tois likely to constitute a material default by the Company or any Asset Seller under any Material Contract. Except as set forth on Section 2.14(b) of the Company Disclosure Schedule, serve as a basis for, or would constitute an event of default there are no material disputes under any Material Contract pending and the Company has not received notice pursuant to any Material Contract of any threatened material disputes.
(c) Except as set forth on Section 2.14(c) of the Company Disclosure Schedule, in the twelve (12) months prior to the date of this Agreement, neither the Company nor any Asset Seller has received notice pursuant to any Material Contract that the counterparty intends to terminate or request a material modification to such Material Contract. Except as set forth on Section 2.14(c) of the Company Disclosure Schedule and except as would not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate, (i) in the six (6) months prior to the date of this Agreement, neither the Company nor any Asset Seller has received, to the Company’s Knowledge (which for this purpose shall be actual knowledge), oral notice from any counterparty to a Franchise Agreement that such party intends to terminate or request a material modification to, or materially breach, such Franchise Agreement, and (ii) in the six (6) months prior to the date of this Agreement, to the Company’s Knowledge (which for this purpose shall be actual knowledge), none of the following circumstances has occurred: (1) the Company has provided a notice of non-renewal to the other party to a Franchise Agreement; (2) possession or control of the property that is the subject of the Franchise Agreement has been assumed by a receiver, management company, bankruptcy trustee, secured lender, or similar party that has not agreed to assume the Franchise Agreement (whether on a temporary or permanent basis); (3) at least 50% of the guest rooms at the property that is the subject of a Franchise Agreement have become un-rentable or otherwise out of service, whether as a result in a termination thereof or would cause or permit the acceleration of fire, flood, or other changes natural disaster, the exercise of partial eminent domain, a life/safety issue or otherwise; or (4) a change of control of the property that is the subject of the Franchise Agreement, where the transferee has failed to assume the Franchise Agreement or enter into a new Franchise Agreement after 30 days. Except as set forth on Section 2.14(c) of the Company Disclosure Schedule and except as would not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate, in the ninety (90) days prior to the date of this Agreement, to the Company’s Knowledge (which for this purpose shall be actual knowledge), the Company has not provided the franchisee with written notice that the franchisee is in default of the Franchise Agreement as a result of quality assurance issues, where the franchisee has not agreed in writing to a corrective action plan.
(d) Section 2.14(d) of the Company Disclosure Schedule identifies by jurisdiction and effective date all currently effective registrations under the Federal Trade Commission trade regulation rule entitled “Disclosure Requirements and Prohibitions Concerning Franchising,” 16 C.F.R. Section 436 et seq. and any other Law regulating the offer and/or sale of franchises, business opportunities, seller-assisted marketing plans or similar relationships (the “Franchise Laws”) that are applicable to the Business. The Company and each Asset Seller has complied in all material respects with the Franchise Laws. None of the Company or any Asset Seller is subject to any Order that would prohibit or restrict the offer or sale of any right Knights Inn Franchise in any jurisdiction within the United States.
(e) To the Company’s Knowledge, all funds administered by or obligation paid to the Business by or on behalf of one or more Knights Inn Franchises at any time since January 1, 2015, including funds that the loss Knights Inn Franchises contributed for advertising and promotion, and any rebates and other payments made by suppliers and other third parties on account of any the Knights Inn Franchises’ purchases from those suppliers and third parties, have been administered and spent in accordance in all material benefit thereunderrespects with the applicable Franchise Agreements.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Red Lion Hotels CORP)
Material Contracts. Section 3.10 Except (i) as set forth in the Company SEC Documents filed prior to the date of this Agreement; (ii) as set forth in Schedule 2.10, Schedule 2.13 or Schedule 2.29; (iii) as set forth in this Schedule 2.22 (the Disclosure Schedule contains a list contracts in (i), (ii), and (iii) being collectively referred to herein as the “Material Contracts”); and (iv) for this Agreement, and other contracts and agreements which individually or in the aggregate are not material to Company’s or any of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are boundsubsidiaries’ businesses, as of the date of this Agreement (such ContractsAgreement, together with the Intellectual Property Licenses, each, Company is not a “Material Contract”):party to or bound by:
(a) Other than Contracts with Material Suppliers and Contracts with Material Customersany distributor, Contracts pursuant to which any Target Company (i) made payments to any third party sales, agency or manufacturer’s representative, consulting, joint-venture, or partnership contract or joint R&D or technology sharing arrangements involving in the case of any such contract or arrangement payments of more than $250,000 over any twelve (12) consecutive month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000period;
(b) collective bargaining agreements and any other contracts continuing contract with vendors for the purchase of materials, supplies, equipment or services involving in the case of any labor unionssuch contract payments of more than $250,000 over any twelve (12) consecutive month period;
(c) Contracts (any trust indenture, mortgage, promissory note, loan agreement or other than Benefit Plans) contract for the employment or engagement borrowing of money, any officercurrency exchange, employee commodities or other Person on a full-time, part-time, consulting, independent contractor hedging arrangement or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness any leasing transaction of the Target Companies type required to be capitalized in excess of $50,000accordance with GAAP, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts except as may be entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(ld) Contracts providing any contract for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than ;
(e) any contract materially limiting the Intellectual Property Licenses freedom of Company to engage in any line of business in any material respect, to acquire any product or asset from any other Person, to sell any product or asset to, or to perform any service for, any Person, or to compete with any other Person (as that term is defined in the Exchange Act), except as may be entered into in the ordinary course of business;
(f) any confidentiality, secrecy or non-disclosure contract, which individually or in the aggregate, materially affects or could be reasonably anticipated to materially affect the business or operations of Company, except as may be entered into in the ordinary course of business;
(g) any contract pursuant to which Company is not required to disclose on Section 3.17(a) a lessor of real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving in the case of any such personal property contact more than $250,000 over the life of the Disclosure Schedulecontract;
(h) any contract with any Person with whom Company does not deal at arm’s length;
(i) any contract which provides for the indemnification of any officer, director, employee or agent, except as may be entered into in the ordinary course of business with persons other than officers and directors of the Company; or
(j) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the Company has made available to Purchaser true and complete copies obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the any other parties thereto in accordance with their termsPerson, except to the extent enforcement as may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is entered into in compliance in all material respects with the terms and requirements ordinary course of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderbusiness.
Appears in 2 contracts
Sources: Merger Agreement (Bea Systems Inc), Merger Agreement (Plumtree Software Inc)
Material Contracts. (a) Section 3.10 4.16 of the Disclosure Schedule contains a list Schedules lists as of the Execution Date, and the Company has made available to Buyer, true, correct and complete copies of each of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”) to which the Company or any of its Subsidiaries is a party or which bind or affect their respective properties or assets (excluding leases, subleases or other agreements for Leased Real Property, all of which Contracts are disclosed in Section 4.13(b) of the Disclosure Schedules, and excluding Benefit Plans):
(ai) Other Excluding any Contracts that represent intercompany or intracompany or intra-group loans, Contracts that relate to Indebtedness or conditional sale arrangements, the sale, securitization or servicing of loans or loan portfolios, in each case in excess of €100,000, including, without limitation, that grant or permit any Lien (other than a Permitted Lien) on any of the assets or properties of the Company or any of its Subsidiaries, or any guarantees of Indebtedness by third parties for the benefit of the Company or any of its Subsidiaries;
(ii) Contracts relating to the ownership, transfer or voting of any equity interests in the Company or any of its Subsidiaries;
(iii) Contracts for the acquisition, sale or lease of the properties or assets, other than Contracts with Material Suppliers and entered into in the ordinary course of business;
(iv) Contracts that provide for or govern the formation, creation, operation, management or control of any strategic partnership, joint venture, joint development, or similar arrangement or partnership;
(v) Contracts with Material Customersany customers, vendors, suppliers, distributors or contractors or for the purchase of products or services, other than product or service orders entered into in the ordinary course of business, and which do not individually provide for payments from or to the Company or any of its Subsidiaries in excess of €100,000;
(vi) Contracts pursuant to which the Company or any Target Company (i) made payments of its Subsidiaries subcontracts services to any a third party party, other than in the twelve (12) month period prior to the date hereof, in excess ordinary course of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000business;
(bvii) collective bargaining agreements and Contracts containing provisions that purport to limit the ability of the Company or any other contracts of its Subsidiaries (or which, following the consummation of the Contemplated Transactions, could restrict the ability of Buyer or any of its Subsidiaries) to compete in any business or with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment Person or engagement of in any officergeographic area, employee or other Person on a full-timeto sell, part-time, consulting, independent contractor supply or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness distribute any of the Target Companies in excess Company’s or any of $50,000, its Subsidiary’s services or products (including any loan or credit agreementsnon-compete, promissory notesexclusivity, security agreements, pledge agreements, mortgages, “most-favored-nation” or similar letters of credit, requirements) or pursuant to which any Target Company has guaranteed benefit or right is required to be given or lost, or any liabilities penalty or obligations detriment is incurred, as a result of any of Personso competing or engaging;
(eviii) the Leasesoperating and capital leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(jix) Contracts with any Governmental Authority;
(kx) Contracts entered into in connection with pursuant to which the Company or any mergerof its Subsidiaries is granted by any other Person, consolidation or grants to any other Person, any license or other business combinationright to use, or a covenant not to s▇▇ with respect to the acquisition or disposition of any business, assets or securitiesto, or any equity or debt investment in or any loan assigns to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith or is assigned by any Person, any Intellectual Property (other than sales shrink wrap agreements for off-the-shelf software with a replacement cost and/or annual license fees of assets less than €100,000);
(xi) Contracts providing for indemnification by the Company or any of its Subsidiaries other than customary indemnities in agreements with customers or suppliers incurred in the ordinary course of business);
(lxii) Contracts providing for pursuant to which the settlement Company or any of its Subsidiaries is, or may become, obligated to incur any material Proceedingseverance or compensation obligations that would become payable by reason of this Agreement or the Contemplated Transactions;
(mxiii) limited liability company agreementsExcluding any Contracts that represent intercompany or intracompany or intra-group loans, partnership agreementsContracts pursuant to which the Company or any of its Subsidiaries has advanced or loaned an amount to any Person, Tax Sharing Agreements or joint venture agreements that involve a sharing other than accounts receivable extended in the ordinary course of profits, losses, costs or liabilities by any Target Company with any other Personbusiness.
(nxiv) outstanding powers-of-attorney granted by the Company for all employment agreements and Contracts with independent contractors or consultants (or similar arrangements), excluding any purpose whatsoever; andemployment agreements that are cancellable without penalty or are cancellable with less than 90 days’ notice;
(ob) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is valid and binding on the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their its terms, except to the extent enforcement enforceability may be affected by Enforceability Exceptionssubject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally, and to general equitable principles. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract The Company, its Subsidiaries and, to the Knowledge of the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged have performed and complied with all material obligations required to be in breach performed or default under). The Company has neither provided nor received any notice of any intention to terminate any complied with by them under each Material Contract. To the Company’s Knowledge, There is no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract by the Company or result in a termination thereof or would cause or permit any of its Subsidiaries or, to the acceleration or Knowledge of the Company, by any other changes party, and no event has occurred that with the lapse of any right or obligation time or the loss giving of notice or both would constitute a default thereunder by the Company or any material benefit thereunderof its Subsidiaries, or, to the Knowledge of the Company, by any other party thereto.
Appears in 2 contracts
Sources: Share Exchange Agreement (GAN LTD), Share Exchange Agreement (GAN LTD)
Material Contracts. (a) Section 3.10 4.06(a) of the Disclosure Schedule contains a list Schedules lists each of the following types of Contracts (and each amendment x) by which any of the Purchased Assets are bound or modification theretoaffected or (y) to which any Target Company Seller is a party, party or by which such Target Company it is bound in connection with the 17173 Business or its properties or assets are bound, as of the date of this Agreement Purchased Assets (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Leased Real Property listed or otherwise disclosed in Section 4.09(b) of the Disclosure Schedules and all Contracts relating to Intellectual Property Licensesset forth in Section 4.10(c) and Section 4.10(e) of the Disclosure Schedules, each, a being “Material ContractContracts”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, all Contracts involving aggregate consideration in excess of $500,000; 500,000 and which, in each case, cannot be cancelled without penalty or with less than thirty (30) days’ notice;
(ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) all Contracts (other than Benefit Plans) that provide for the employment or engagement indemnification of any officerPerson or the assumption of any Tax, employee environmental or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess Liability of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(iiii) all Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect 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 securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of businessotherwise);
(liv) all Contracts providing that involve the establishment, contribution to, or operation of a partnership, joint venture, alliance or similar entity, or involving a sharing of profits or losses (including joint development and joint marketing Contracts), or any investment in, loan to or acquisition or sale of the securities, equity interests or assets of any Person;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts; cooperation contracts with gaming companies or game operators, advertising contracts, and game publishing and agency contracts;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) and which are not cancellable without material penalty or with less than thirty days’ notice;
(vii) except for the settlement Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees);
(viii) all Contracts with any Governmental Authority, state-owned enterprise, or sole-source supplier of any material Proceedingproduct or service (other than utilities);
(mix) limited liability company agreementsall Contracts that limit or purport to limit the ability of any Seller or any Buyer Group Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) all cooperation, joint venture, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.similar Contracts;
(nxi) outstanding powers-of-all Contracts for the sale of any of the Purchased Assets or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any of the Purchased Assets;
(xii) all Contracts involving any provisions providing for exclusivity, “change in control”, “most favored nations”, rights of first refusal or first negotiation or similar rights;
(xiii) all powers of attorney granted by with respect to the Company for 17173 Business or any purpose whatsoeverPurchased Asset;
(xiv) all Contracts among the Seller Group Companies;
(xv) all insurance policies, including the Assigned Insurance Policies; and
(oxvi) all other Contracts related that are material to capital projects and capital expenditures the Purchased Assets or the operation of the 17173 Business.
(b) Except as disclosed in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a4.06(b) of the Disclosure ScheduleSchedules, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments is valid and supplements thereto binding on the applicable Seller in accordance with its terms and waivers thereunder). Each Material Contract is in full force and effect and is valid effect, and enforceable against the applicable Target Company andSeller, and to the Company’s KnowledgeKnowledge of the Sellers, the other parties thereto in accordance with their termsthereto, except (x) as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, and (y) as may be limited by laws relating to the extent enforcement may be affected by Enforceability Exceptionsavailability of specific performance, injunctive relief or other remedies in the nature of equitable remedies. Each Target Company that is a party to a Material Contract is in compliance in all material respects with None of the terms Sellers, and requirements of such Material Contract and, to the Company’s KnowledgeKnowledge of the Sellers, each other Person that is party none of the counterparties to such Material Contract is in compliance in all material respects with the terms and requirements of such any Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material ContractContract in any material respect. To the Company’s KnowledgeKnowledge of the Sellers, no Occurrence event or circumstance has occurred or exists whichthat, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default by any Seller or any counterparty under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to the Buyers.
(c) Section 4.06(c) of the Disclosure Schedules is an accurate and complete list of all Consents required for the assignment of the Assigned Contracts under this Agreement and other Transaction Documents.
Appears in 2 contracts
Sources: Master Transaction Agreement (Changyou.com LTD), Master Transaction Agreement (Sohu Com Inc)
Material Contracts. (a) Section 3.10 5.16(a) of the Disclosure Schedule contains sets forth a list of all of the following types of Contracts (and each amendment or modification theretoother than purchase orders) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date Sellers that relate to the Business, the Purchased Assets or the Assumed Liabilities (any such Contract required to be disclosed on Section 5.16(a) of this Agreement (such Contracts, together with the Intellectual Property Licenses, eachDisclosure Schedule, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made Any (A) Lease or (B) lease of personal property (the “Personal Property Leases”) involving annual payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or 10,000;
(ii) received payments from any third party Contract limiting in any respect the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness right of the Target Companies in excess of $50,000, including any loan Sellers or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant the Business to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging freely engage in any line of business anywhere in the world (other than customer Contracts and non-disclosure Contracts entered into in the Ordinary Course of Business that contain non-solicitation obligations with respect to U.S. employees or geographic region independent contractors);
(iii) any Contract for the purchase, acquisition or sale of materials, goods, services, equipment or other assets providing for annual payments made by or to the Sellers or the Business of $25,000 or more;
(iv) any Contract for the sale of any of the assets or properties of the Sellers (other than sale of inventory in the Ordinary Course of Business) or for the grant to any Person of any preferential rights to purchase any such assets or properties, in each case, other than in the Ordinary Course of Business;
(v) each limited liability company agreement, partnership agreement, joint venture agreement, strategic alliances, collaboration and other similar Contract (however named) that involves sharing profits or losses by any Seller with any other Person;
(vi) any Contract relating to the acquisition (by merger, (iipurchase of stock or assets or otherwise) soliciting by the Sellers of any customers, suppliers, employees operating business or contractors material assets or the capital stock of any other Person;
(vii) any Contract providing for or relating to any fees and expenses of any brokers or the incurrence, assumption, guarantee or payoff of any indebtedness or imposing a Lien (other than a Permitted Lien) on any of the Purchased Assets;
(viii) Contracts relating to any indebtedness (including Contracts that are a indenture, guaranty, loan or credit agreement, security agreement or which otherwise create or grant any Lien on any assets of the Sellers (other than Permitted Liens));
(ix) any Contract that (A) provides for a total compensation opportunity or fee equal to or exceeding $100,000 relating to U.S. employment, U.S. employee compensation (including salary or bonus), severance or consulting, with any U.S. officers, directors, U.S. employees, individual independent contractors or individual consultants (other than offer letters which do not provide for severance obligations) of the Business, including any that would become payable as a result of the consummation of the transactions contemplated hereby, or (iiiB) competing restricts the ability to terminate the employment of any such Person or such agreement at any time for any lawful reason or for no reason without liability or severance obligation;
(x) any collective bargaining agreement or Contract with any labor union, works council, labor organization, group of U.S. employees or any collective bargaining representative;
(xi) any Contract providing for the annual sourcing of materials, goods, services, equipment or other assets of $10,000 or more, or providing any of the Sellers with exclusivity as to the sourcing of materials, goods, services, equipment or other assets;
(xii) any Contract for capital expenditures or the acquisition or construction of fixed assets;
(xiii) any Contract with a Key Vendor;
(xiv) any Contract with a Key Customer;
(xv) any settlement Contract arising out of any Action asserted by any Person (including any Governmental Body) which contains ongoing obligations (including payment obligations) or restrictions beyond the Closing Date;
(xvi) any sales agency, sales representation, reseller, distributorship, dealer, broker, franchise or similar Contract (other than Contracts with end user pricing terms under which products are not sold by the Sellers or the Business directly to the end user);
(xvii) any Government Contract (other than Contracts with end user pricing terms under which products are not sold by the Sellers or the Business directly to the end user);
(xviii) any Contract with (A) a “key man” provision, requirement or similar provision or that otherwise provides a Person with any rights in the event that a particular Person ceases to provide services under such Contract or remain employed or engaged by the Business, (B) a most favored nation, favored customer, price restriction or similar provision; (C) an exclusivity obligation, or (D) non-competition, non-solicitation, no hire or similar provisions;
(xix) any Contract which contains any fixed or indexed pricing or provisions regarding minimum volumes or minimum or fixed purchase requirements, volume discounts or rebates;
(xx) any (A) Inbound IP License other than licenses granted by any third Person to the Sellers for open source Software or off-the-shelf Software commercially available on standard, non-negotiated terms for a one-time or annual fee (whichever is higher) of no more than $10,000 and (B) Outbound IP Licenses other than non-exclusive licenses of Intellectual Property granted by the Sellers to customers in the Ordinary Course of Business;
(xxi) any Contract providing for the invention, creation, conception or other development of any material Intellectual Property (A) by the Sellers for any third Person, (B) by any third Person for the Sellers (other than any contracts with the Sellers’ U.S. employees relating to Intellectual Property) or (C) jointly by any Seller and any third Person;
(ixxii) Contracts that contain any Contract providing for the assignment or provide for “most favored nations” terms;
transfer of any ownership interest in any material Intellectual Property by (jA) Contracts with the Sellers to any Governmental Authority;
third Person or (kB) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect third Person to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith Sellers (other than sales any contracts with U.S. employees of assets in the ordinary course of businessBusiness relating to Intellectual Property);
(lxxiii) Contracts providing any Contract that requires the Sellers to indemnify any Person (excluding indemnities contained in agreements for the settlement purchase, sale or license of any material Proceedingproducts or services entered into in the Ordinary Course of Business);
(mxxiv) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing any Contract relating to any pending acquisition of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverreal property; and
(oxxv) any Contract among any Seller and any of its Affiliates or Related Persons.
(b) With respect to each Government Contract, since the Reference Date, the Sellers and the Business have not: (i) materially breached or materially violated any Law, clause, provision or requirement pertaining to such Government Contract; (ii) been debarred or suspended from bidding on Government Contracts related by a Governmental Body, or declared nonresponsible or ineligible for, government procurement pursuant to capital projects and capital expenditures in excess 48 C.F.R. Subpart 9.4, or any comparable state or local Laws and, to the Knowledge of $100,000 individually Seller, no facts or $250,000 in the aggregate. Other than the Intellectual Property Licenses circumstances exist that could reasonably be expected to give rise to debarment, suspension, or a declaration that the Company is Sellers or the Business are ineligible for government procurement; (iii) received any adverse findings in audits or investigations by any Governmental Body with respect to any Government Contract that remain unresolved; (iv) received any material written notice of breach, cure, show cause or default from any Governmental Body with respect to such Government Contract; (v) had such Government Contract terminated by any Governmental Body for default or failure to perform; or (vi) made any disclosure with respect to any material irregularity, misstatement or omission involving a Government Contract. All representations, certifications required under each Government Contract and statements executed and submitted by the Sellers or the Business in connection with Government Contracts were correct in all material respects as of their respective effective dates. The Sellers are not required the subject of any pending claim pursuant to disclose on the False Claims Act (31 U.S.C. §§ 3729 et seq.) or any comparable state or local Laws and, to the Knowledge of Seller, no facts or circumstances exist that could reasonably be expected to give rise to a claim under the False Claims Act or any comparable state or local Laws against Sellers or the Business. Each Seller and its officers, directors, employees and agents have complied in all material respects with applicable procurement Laws governing the awarding and performance of Government Contracts. To the Knowledge of Seller, neither the Sellers nor any of their respective directors, officers, agents or employees have had access to confidential or non-public information in connection with Government Contracts to which they were not lawfully entitled.
(c) Subject to the Bankruptcy Court approval, entry of the Bidding Procedures Order and Sale Order and assumption by the Sellers and assignment to Purchaser of the Purchased Contracts and Assumed Leases in accordance with applicable Law (including satisfaction of any Cure Amounts pursuant to Section 3.17(a2.7 hereof) and except as set forth in Section 5.16(c) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against i) the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance Seller has in all material respects with the terms performed all obligations required to be performed by it and requirements of such Material Contract andhave not received any written or, to the Company’s KnowledgeKnowledge of Seller, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any verbal notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred default or exists which, event that (with due notice or lapse of time or both) would constitute a default by the Sellers under any Material Contract, may give rise (ii) each Material Contract is a legal, valid and binding obligation of the Sellers and is in full force and effect (except to the extent subject to, serve as a basis forand limited by, applicable bankruptcy, insolvency, reorganization, moratorium, receivership and similar laws affecting the enforcement of creditors’ rights generally and general equitable principles), (iii) to the Knowledge of Seller, no other party to any Material Contract is (with or without the lapse of time or the giving of notice, or would constitute an event both) in material breach of or in material default under any Material Contract, (iv) no party to any Material Contract has exercised or, to the Knowledge of Seller, threatened to exercise any termination rights with respect to any such Material Contract, (v) no party to any Material Contract has threatened in writing to breach or result adversely modify any Material Contract, and (vi) no party to any Material Contract has provided notice that such party does not intend to renew any Material Contract. Subject to the Bankruptcy Court approval, entry of the Bidding Procedures Order and Sale Order and assumption by the Sellers and assignment to Purchaser of the Purchased Contracts and Assumed Leases in a termination thereof or would cause or permit the acceleration or other changes accordance with applicable Law (including satisfaction of any right Cure Amounts pursuant to Section 2.7 hereof), the Sellers will transfer to Purchaser at the Closing, good and valid title to the Material Contracts which are Purchased Contracts, free and clear of all Liens other than Permitted Liens. The Sellers have made available to Purchaser true, correct and complete copies of each of the Material Contracts, together with all amendments, modifications or obligation or the loss of any material benefit thereundersupplements thereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sonendo, Inc.), Asset Purchase Agreement (Biolase, Inc)
Material Contracts. Section 3.10 (a) Schedule 4.12 of the Company Disclosure Schedule contains sets forth a list of the following types of Contracts (true, correct and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are boundcomplete list, as of the date hereof, of this Agreement all contracts, commitments, licenses, agreements, obligations or arrangements, whether oral or written, formal or informal, to which the Company or any Company Subsidiary is a party (such Contracts, together with the Intellectual Property Licenses, each, or intends to become a “Material Contract”):
(aparty) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant or to which any Target Company of their respective assets or properties is bound:
(i) made under which the Company or a Company Subsidiary leases personal property from or to third parties under operating leases which involve payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or 25,000 per annum;
(ii) received 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) which involves payments of more than $50,000 in the aggregate or (C) in which the Company or any Company Subsidiary has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies which involves payments in excess of $50,000, including but excluding purchase orders or sales contracts which are revocable without penalty by the Company or any loan Company Subsidiary;
(iii) (A) granting representation, marketing or credit agreementsdistribution rights or (B) relating to Intellectual Property (including, promissory noteswithout limitation, security agreementslicense, pledge agreements, mortgages, franchise or similar letters of creditagreements);
(iv) establishing or maintaining any partnership, joint venture or strategic alliance or pursuant to which the Company or any Target Company Subsidiary has guaranteed any liabilities purchased the assets, business or obligations Equity Interests of any of Personother Person during the last three (3) years;
(ev) under which there is or may be imposed a Lien on any of its assets, whether tangible or intangible (other than the LeasesLiens granted in favor of Parent);
(fvi) Contracts with Material Suppliersconcerning any non-competition or non-solicitation obligations entered into outside the ordinary course of business;
(gvii) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target under which the Company or any of Company Subsidiary is or would be restricted from carrying on its Affiliates business or any part thereof, or from (i) engaging competing in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(iviii) Contracts that contain with officers, directors, employees or provide for “most favored nations” termsconsultants of the Company or any Company Subsidiary;
(jix) Contracts with resulting in or providing for the creation of any Governmental AuthorityLien (including any lease notifications) other than any Liens granted in favor of Parent;
(kx) Contracts involving any Affiliates of the Company or any Company Subsidiary;
(xi) under which the consequences of a default or termination could reasonably be likely to have a Company Material Adverse Effect; and
(xii) not entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);business and not otherwise disclosed on Schedule 4.12 of the Company Disclosure Schedule in response to any of the foregoing clauses.
(lb) Contracts providing for All of the settlement contracts, commitments, licenses, agreements, obligations or arrangements described in clauses (i) through (xii) of any material Proceeding;Section 4.12(a), together with the real property leases, subleases, licenses and other interests described in Section 4.22, whether entered into prior to, on or after the Effective Time, are each referred to herein as a “Material Contract” and are collectively referred to herein as the “Material Contracts.”
(mc) Each Material Contract existing as of the date hereof is a legal, valid and binding obligation of each of the Company or any Company Subsidiary that is a party thereto, on the one hand, and to the Knowledge of the Company or any Company Subsidiary, the other parties thereto, on the other hand, enforceable against each of them in accordance with its terms, except as enforcement may be limited liability company agreementsby bankruptcy, partnership agreementsinsolvency, Tax Sharing Agreements reorganization, moratorium, fraudulent transfer or joint venture agreements that involve a sharing conveyance or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability and is in full force and effect. The parties to each Material Contract are in substantial compliance with the terms thereof, and no default or event of profits, losses, costs or liabilities default by any Target of the Company or any Company Subsidiary or, to the Knowledge of the Company or any Company Subsidiary, any other party thereto exists thereunder.
(d) None of the Company or any Company Subsidiary is a party to any contract, commitment, license, agreement, obligation or arrangement that restricts it from carrying on its business or any part thereof, or from competing in any line of business or with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Caprius Inc), Merger Agreement (Vintage Capital Group, LLC)
Material Contracts. Section 3.10 of the Disclosure Except as listed or described on Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound5.10 hereto, as of the date hereof, the Business is not a party to or bound by any written or oral leases, agreements, instruments, or other contracts or legally binding contractual commitments (“Contracts”) that are of this Agreement a type described below (such Contractscollectively, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party collective bargaining arrangement with any labor union;
(ii) any Contract, singly or in the twelve (12) month period prior to aggregate, for capital expenditures or the date hereof, acquisition or construction of fixed assets in excess of $500,000; 2500.00;
(iii) any Contract, singly or (ii) received payments from any third party in the twelve (12) month prior to aggregate, for the date hereofpurchase or sale of inventory, materials, supplies, merchandise, machinery, equipment, parts or other property, assets, or services requiring aggregate future payments in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts 2500.00 (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets standard inventory purchase orders executed in the ordinary course of business);
(liv) Contracts providing for any Contract relating to the settlement borrowing of any material Proceedingmoney or the guaranty of another person’s borrowing of money;
(mv) limited liability company agreementsany Contract granting any person a lien on all or any part of assets;
(vi) any Contract granting to any person a first refusal, partnership agreementsfirst offer or similar preferential right to purchase or acquire any of its assets;
(vii) any Contract under which the Business is (A) a lessee or sublessee of any machinery, Tax Sharing Agreements equipment, vehicle (including fleet equipment) or joint venture agreements that involve other tangible personal property, or (B) a sharing lessor of profitsany property, lossesin either case having an original value in excess of $2500.00;
(viii) any Contract limiting, costs restricting or liabilities by prohibiting it from conducting business anywhere in the United States or elsewhere in the world or any Target Company Contract limiting the freedom of the Business to engage in any line of business or to compete with any other Person.;
(nix) outstanding powers-of-attorney granted by any joint venture or partnership Contract;
(x) Contracts, singly or in the Company for any purpose whatsoeveraggregate, requiring future payments of $2500.00 or more that require the consent of the other party thereto in connection with the transactions contemplated hereby; and
(oxi) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregateany material employment Contract with any employee. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company The Shareholder has made available to the Purchaser a true and complete copies copy of each written Material Contract, including all amendments or other modifications thereto. Except as set forth on Schedules 5.9 and 5.10 hereto, each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is a valid and binding obligation of each party thereto, enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their its terms, except subject only to bankruptcy, reorganization, receivership and other laws affecting creditors’ rights generally. Except as set forth on Schedules 5.9 and 5.10 hereto, the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in Business has performed all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged obligations required to be performed by it under the Material Contracts and the Business is not in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 2 contracts
Sources: Stock Purchase Agreement (VCG Holding Corp), Stock Purchase Agreement (VCG Holding Corp)
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains a list of 5.9(a) sets forth all the following types of Contracts (and each amendment or modification thereto) currently in effect to which any Target Company Seller is a party, party and that are primarily related to the Business or by which such Target Company the Transferred Assets may be bound or its properties or assets are bound, as of affected (the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; Contract requiring a capital expenditure or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies known commitment in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(eii) the Leasesany Contract under which Seller is obligated to purchase, sell or lease real or personal property to or from third parties and having a value in excess of $50,000 or an annual lease payment in excess of $50,000;
(fiii) Contracts any Contract with Material Suppliersrespect to the Leased Real Property;
(giv) Contracts with Material Customers;
any Contract under which Seller has (hA) Contracts containing any covenant of a Target Company that restricts a Target Company created, incurred, assumed or any of its Affiliates from guaranteed (ior may create, incur, assume or guarantee) engaging in any line of business or geographic region with any Personindebtedness for borrowed money, (iiB) soliciting any customersgranted a Lien on the Transferred Assets, supplierswhether tangible or intangible, employees or contractors of any other Person, to secure such indebtedness for borrowed money or (iiiC) competing with extended credit to any Person;
(iv) Contracts that contain any Contract between Seller, on the one hand, and one or provide for “most favored nations” termsmore of Seller’s Affiliates, on the other hand;
(jvi) Contracts with any Governmental Authoritymaterial Contract establishing any joint venture, strategic alliance or other collaboration;
(kvii) all Contracts entered into in connection with providing for material payments to or by any mergerPerson based on sales, consolidation purchase or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (profits other than sales of assets in the ordinary course of business)direct payments for goods or services;
(lviii) Contracts providing for any Contract that restricts or limits (A) the settlement ability of the Seller to freely engage in the Business in any material Proceedinggeographic area or (B) the ability of Subsidiaries of the Seller to conduct any legal line of business in any geographic area;
(mix) limited any Contract relating to outstanding letters of credit or performance bonds or creating any liability company agreementsas guarantor, partnership agreementssurety, Tax Sharing Agreements co-signer, endorser, co-maker or joint venture agreements that involve indemnitor, in each case in respect of the obligation of any Person to make payments or perform services with a sharing value of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverat least $50,000; and
(ox) Contracts any amendment related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) any of the Disclosure Scheduleforegoing.
(b) Except as set forth on Schedule 5.9(b), (i) all of the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is Contracts are in full force and effect and is are the legal, valid and enforceable against the applicable Target Company binding obligations of Seller and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the CompanySeller’s Knowledge, any other party thereto, and (ii) Seller has performed all of its material obligations thereunder and is not in material violation or breach of or default under any Material Contract except for breaches or defaults that will be cured in accordance with the Sale Order (or is alleged that need not be cured under the Bankruptcy Code to be permit the assumption and assignment of such Material Contract). To Seller’s Knowledge, the other parties to each Material Contract are not in material violation or breach of or default under). The Company has neither provided nor received any notice of any intention to terminate any under such Material Contract. To the Company’s Knowledge, no Occurrence Seller has occurred or exists which, with notice or lapse made available to Purchaser and true and complete copy of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any each Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderContract.
Appears in 2 contracts
Sources: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Material Contracts. Section 3.10 None of the Disclosure Schedule contains Target Entities, nor any of their respective Assets, businesses, or operations, is a list party to, or is bound or affected by, or receives benefits under, (a) any employment, severance, termination, consulting, or retirement Contract providing for aggregate payments to any Person in any calendar year in excess of $150,000, (b) any Contract relating to the borrowing of money by any Target Entity or the guarantee by any Target Entity of any such obligation (other than Contracts evidencing deposit liabilities, purchases of federal funds, fully-secured repurchase agreements, and Federal Home Loan Bank advances of depository institution Subsidiaries, trade payables and Contracts relating to borrowings or guarantees made in the ordinary course of business) in excess of $2,000,000, (c) any Contract which prohibits or restricts any Target Entity from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (d) any Contract between or among Target Entities, (e) any Contract relating to the purchase or sale of any goods or services by a Target Entity (other than Contracts entered into in the ordinary course of business and involving payments under any individual Contract not in excess of $500,000 or involving Loans, borrowings or guarantees originated or purchased by any Target Entity in the ordinary course of business), (f) any Contract which obligates any Target Entity (or, following the consummation of the following types Merger, Buyer or any of Contracts its Subsidiaries) to conduct business with any third party on an exclusive or preferential basis, (and each amendment g) any Contract which requires referrals of business or modification theretorequires any Target Entity to make available investment opportunities to any person on a priority or exclusive basis, (h) 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 any Target Entity, (i) any Contract which limits the payment of dividends by any Target Entity, (j) any Contract pursuant to which any Target Company is Entity has agreed with any third parties to become a partymember of, manage or control a joint venture, partnership, limited liability company or other similar entity, (k) any Contract pursuant to which any Target Entity 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, (l) any Contract which relates to Intellectual Property of Target (including permitting the use of the name “Sterling Bank” or any variant thereof), (m) any Contract between any Target Entity, on the one hand, and (1) any officer or director of any Target Entity, or (2) to the Knowledge of Target, any (x) record or beneficial owner of five percent (5%) or more of the voting securities of Target, (y) Affiliate or family member of any such officer, director or record or beneficial owner or (z) any other Affiliate of Target, on the other hand, except those of a type available to employees of Target generally, or (n) any other Contract or amendment thereto that would be required to be filed as an exhibit to a SEC Report filed by which such Target Company or its properties or assets are bound, with the SEC as of the date of this Agreement (such Contracts, together with all Contracts referred to in Sections 4.11 and 4.15(a), the Intellectual Property Licenses, each, a “Material Target Contracts”). With respect to each Target Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company : (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is valid and binding on the applicable Target Entity, enforceable against it in accordance with its terms in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s KnowledgeKnowledge of Target, is valid and binding on the other parties thereto thereto; (ii) no Target Entity is in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Default thereunder; (iii) no Target Company that is a Entity has repudiated or waived any material provision of any such Contract; and (iv) no other party to a Material any such Contract is in compliance in all material respects with the terms and requirements of such Material Contract andis, to the Company’s KnowledgeKnowledge of Target, each other Person that is party to such Material Contract is in compliance Default in all any material respects with respect or has repudiated or waived any material provision thereunder. All of the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice indebtedness of any intention to terminate Target Entity for money borrowed is prepayable at any Material Contract. To the Company’s Knowledge, no Occurrence has occurred time by such Target Entity without penalty or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderpremium.
Appears in 2 contracts
Sources: Merger Agreement (Sterling Bancshares Inc), Merger Agreement (Comerica Inc /New/)
Material Contracts. (a) Schedule 4.14(a) sets forth, by reference to the applicable subsection of this Section 3.10 of the Disclosure Schedule contains a list 4.14(a), all of the following types of Contracts (and each amendment or modification thereto) to which any Target the Company is and/or the Subsidiaries are a party, party or by which such Target the Company and/or the Subsidiaries or their respective assets or properties are bound (collectively, the “Material Contracts”):
(i) Contracts with Sellers, any of its respective Affiliates or any current or former Related Person;
(ii) Contracts with any labor union or association representing any Employee;
(iii) Contracts for the sale of any of the assets of the Company or the Subsidiaries other than in the Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase any of its properties assets;
(iv) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or assets are bound, as sharing of the date of this Agreement profits or proprietary information;
(such Contracts, together with the v) Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior except Company’s standard end user license to the date hereof, in excess Proprietary Software and except licenses of commercial off-the-shelf Software available on reasonable terms for a license fee of no more than $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,00020,000;
(bvi) collective bargaining agreements and Contracts containing (A) covenants of the Company or the Subsidiaries not to compete with any Person in any line of business, industry or geographical area or restricting the solicitation, engagement or hiring of any Person or otherwise restricting the operation of the Company or the Subsidiaries or (B) covenants of any other contracts Person not to compete with the Company or the Subsidiaries in any labor unionsline of business, industry or geographical area or restricting the solicitation, engagement or hiring of any Person;
(cvii) Contracts relating to the acquisition (other than Benefit Plansby merger, purchase of equity or assets or otherwise) for the employment or engagement of any officeroperating business, employee material assets or capital stock of any other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearPerson;
(dviii) Contracts evidencing relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the Target Companies in excess assets of $50,000the Company or the Subsidiaries, including any indentures, guarantees, loan or credit agreements, promissory notessale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, pledge or conditional sale or title retention agreements;
(ix) Contracts giving rise to material Liabilities of the Company or the Subsidiaries;
(x) all Contracts obligating the Company or the Subsidiaries to provide or obtain products or services for a period of one (1) year or more or requiring the Company or the Subsidiaries to purchase or sell a stated portion of its requirements or outputs;
(xi) Contracts (A) relating to the employment of, mortgagesor the performance of services by, any Person, including any current or former Employee or Independent Contractor, (B) pursuant to which the Company or the Subsidiaries are or may become obligated to make any severance, retention, change of control, Transaction Expense, termination or similar payment to any current or former Employee, Independent Contractor or director, or (C) pursuant to which the Company or the Subsidiaries are or may become obligated to make any bonus, sales compensation, or similar letters payment (whether in the form of creditcash, stock, or pursuant other securities but excluding payments constituting base salary);
(xii) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by the Company or the Subsidiaries;
(xiii) Contracts (or group of related Contracts) which involve the expenditure or receipt of more than $25,000 annually or $50,000 in the aggregate or require performance by any party more than one (1) year from the date hereof;
(xiv) Contracts with a Governmental Body;
(xv) Contracts (A) imposing any confidentiality obligation on the Company or the Subsidiaries or on any other Person (other than routine nondisclosure agreements or routine confidentiality provisions contained in agreements entered into by the Company or the Subsidiaries in the Ordinary Course of Business), (B) containing “standstill” or similar provisions, or (C) providing any right of first negotiation, right of first refusal or similar right to which any Target Company has guaranteed any liabilities or obligations of any of other Person;
(exvi) the LeasesContracts related to any broker, distributor, dealer, manufacturer’s representative, franchise, agency (foreign or domestic), continuing sales or purchase, sales promotion, market research, marketing, consulting or advertising;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(hxvii) Contracts containing a provision which provides exclusivity to any covenant other Person, that any term of a Target Company that restricts a Target Company such Contract will be no less favorable to any other Person either individually or in the aggregate than similar provisions in any other Contract, or any of its Affiliates from (i) engaging other similar “most favored nation” or “most favored customer” provision in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors favor of any other Person, or (iii) competing with any Person;
(ixviii) Contracts containing an obligation to indemnify any current or former officer or director of the Company and the Subsidiaries or to indemnify any other Person in connection with the acquisition (whether by means or merger, stock sale or asset sale) of any Person, except for any such Contract that contain is no longer in effect and under which no claim has been made or provide for “most favored nations” termsthreatened;
(jxix) Contracts with involving any Governmental AuthoritySignificant Customer or Significant Provider;
(kxx) Contracts entered into in connection with any merger, consolidation settlement document or other business combination, or Contract with respect to any Legal Proceeding involving the acquisition Company or disposition the Subsidiaries (but only to the extent such documents contain any unfulfilled or continuing obligations of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of businessCompany);
(lxxi) Contracts providing under which the Company or the Subsidiaries (A) collects or processes personally identifiable information, or (B) transfers personally identifiable information to a third party for the settlement of any material Proceedingthat third party’s processing or use;
(mxxii) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverReal Property Leases; and
(oxxiii) Contracts related that are otherwise material to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aor the Subsidiaries.
(b) Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against binding obligation of the applicable Target Company andand the Subsidiaries which is a party thereto, to the Company’s Knowledge, and of the other parties thereto enforceable against each of them in accordance with their termsits terms and, upon consummation of the transactions contemplated by this Agreement, shall, except to as otherwise set forth on Schedule 4.14(b), continue in full force and effect without penalty or other adverse consequence following the extent enforcement may be affected by Enforceability ExceptionsClosing. Each Target The Company that is a party to a Material Contract is and the Subsidiaries are not in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such default under any Material Contract. Neither the Company , nor, to the Knowledge of the Company’s Knowledge, is any other party thereto, is to any Material Contract in breach of or default under (thereunder, and no event has occurred that with or is alleged to be in without the lapse of time or the giving of notice or both would constitute a breach or default under)on the Company and the Subsidiaries or any other party thereunder. The Company No party to any of the Material Contracts has neither provided nor received exercised any termination rights with respect thereto, and no party has given notice of any intention significant dispute with respect to terminate any Material Contract. To The Company and the Company’s KnowledgeSubsidiaries have Made Available true, no Occurrence has occurred correct and complete copies of all of the Material Contracts, together with all amendments, modifications or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereundersupplements thereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Blucora, Inc.), Stock Purchase Agreement (Blucora, Inc.)
Material Contracts. Section 3.10 of the Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, 5.22 lists as of the date of this Agreement (such and excluding this Agreement itself) all of the following contracts and other agreements or commitments (whether oral or written) to which Seller or Clinsite is a party and which relate to the conduct of the Business (other than contracts and other agreements which are not Assumed Liabilities or are not included in the Acquired Assets (collectively, the "Material Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”"):
(a) Other employment, consulting, bonus, profit-sharing, percentage compensation, deferred compensation, pension, welfare, retirement, stock purchase or stock option plans and agreements and commitments with the directors or Personnel of Seller, excluding agreements and commitments terminable by Seller on not more than Contracts with Material Suppliers 30 days' notice without liability or penalty, and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party plans disclosed in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000Schedule 5.17(c);
(b) collective bargaining notes, mortgages, contracts, agreements, and commitments for the repayment or borrowing of money by Seller in excess of $10,000 in any one case, or for a line of credit including borrowings by Seller in the form of guarantees of, indemnification for, or agreements to acquire any obligations of others, and any other contracts with any labor unionsall security or pledge agreements related thereto;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officercontracts, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notesand commitments relating to any joint venture, security agreementspartnership, pledge agreements, mortgagesstrategic alliance, or similar letters sharing of credit, profits or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing losses with any Person;
(id) Contracts that contain contracts, agreements, and commitments containing covenants purporting to limit the freedom of Seller or provide for “most favored nations” termsany Personnel to compete in any business or in any geographic area;
(je) Contracts with contracts, agreements, and commitments requiring payments or distributions to any Governmental Authorityshareholder, director, or Personnel of Seller, or any relative or affiliate of any such Person;
(kf) Contracts entered into in connection with any mergermaterial contracts, consolidation or other business combinationagreements, or with respect licenses and commitments relating to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business)Computer Software;
(lg) Contracts providing contracts, agreements, and commitments not disclosed on any other Schedule to this Agreement and which involve or may involve the payment or receipt by Seller (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services, or otherwise) of more than $25,000 per year or $50,000 over the settlement of any initial term thereof, or are otherwise material Proceedingto the Business;
(mh) limited liability company agreementscontracts, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing and commitments not made in the Ordinary Course of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverBusiness; and
(oi) Contracts related all Real Property Leases. Schedule 5.22 identifies whether each Material Contract is to capital projects be an Assigned Contract, but subject to Section 2.04. Seller and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has Clinsite have made available to Purchaser true and complete copies of each all the Material Contract Contracts available to Purchaser. Except as set forth in Schedule 5.22, there are no transactions relating to the Business presently pending or planned or initiated or completed since December 31, 1999 between Seller and any shareholder, officer, director, or Personnel of Seller, or any relative or Affiliate of any such Person, including any contract, agreement, or other arrangement (including all modificationsi) providing for the furnishing of services by Seller, amendments and supplements thereto and waivers thereunder)(ii) providing for the rental of real or personal property by Seller, or (iii) otherwise requiring payments from Seller (other than for services as officers or directors of Seller) to any such Person or corporation, partnership, trust, or other entity in which any such Person has a direct or indirect interest as a shareholder, officer, director, trustee, or partner. Each All of the Material Contract is Contracts are in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their termseffect, except to the extent enforcement may be affected by Enforceability Exceptionsas provided in Schedule 5.22. Each Target Company that is a party to a Material Contract is Except as set forth in compliance in all material respects with the terms and requirements of such Material Contract andSchedule 5.22, to the Company’s Knowledgeneither Seller, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to To the Company’s KnowledgeKnowledge of Seller, any other party thereto, has breached any material provision of, or is in breach of or default under (or is alleged to be in breach or material default under). The Company has neither provided , the terms of, nor received does any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists condition exist which, with notice or lapse of time time, or both, may give rise towould cause Seller or, serve as a basis forTo the Knowledge of Seller, any other party to be in default under, any contract, agreement, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereundercommitment.
Appears in 2 contracts
Sources: Asset Purchase Agreement (SFBC International Inc), Asset Purchase Agreement (SFBC International Inc)
Material Contracts. Section 3.10 of the Disclosure Schedule contains a list of the following types of Contracts (and each amendment Except as set forth in SCHEDULE 1(q), neither First Midlothian nor its assets, business or modification thereto) to which any Target Company operations, nor First Bank nor its assets, business or operations, is a partyparty to or are bound or affected by or receive benefits under any written or oral agreement, arrangement or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;commitment relating to:
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition employment of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (person other than sales personnel employed at the pleasure of assets First Midlothian or First Bank, as the case may be, in the ordinary course of business);their respective businesses at rates of compensation and on terms consistent with their respective past practices,
(lii) Contracts the election or retention in office of any director or officer,
(iii) collective bargaining with, or any representation of any employees by, any labor union or association,
(iv) the acquisition of services, supplies, equipment or other personal property involving, in any particular case, more than $5,000 or for a quantity in excess of its requirements for normal operating purposes,
(v) the purchase or sale of real property,
(vi) distribution, agency, public relations, advertising, printing, construction, accounting or legal services, except for agreements, arrangements and commitments subject to cancellation without liability on notice of thirty (30) days or less and involving a liability for each such agreement, arrangement or commitment of less than $5,000,
(vii) the lease of real or personal property as lessor or lessee, or sublessor or sublessee, providing for annual payments in the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures aggregate in excess of $100,000 individually 2,500,
(viii) bonuses, pensions, profit-sharing, retirement, stock options, stock purchases, employee discounts or $250,000 other employee benefits,
(ix) lending or advancing of funds, other than in the aggregate. Other ordinary course of First Bank's banking business consistent with its past practice,
(x) borrowing of funds or receipt of credit other than in the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aordinary course of First Bank's banking business consistent with its past practice,
(xi) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss incurring of any material benefit thereunderobligation or liability except for transactions engaged in by First Midlothian or First Bank in the ordinary course of their respective businesses consistent with their respective past practices,
(xii) the sale of personal property or services under which payments due after the date of this Plan exceed $5,000,
(xiii) any transaction or series of transactions, including loans, in which any "affiliate" of First Midlothian or First Bank, as that term is used in the Rules and Regulations of the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933 (the "1933 Act"), any officer or director of First Midlothian or First Bank, any officer or director of any "affiliate" of First Midlothian or First Bank, or any "associate" of any such officer or director, as that term is defined in Regulation 14A of the General Rules and Regulations under the Securities Exchange Act of 1934 (the "1934 Act"), has an interest if such transaction or series of transactions would be required to be disclosed in a proxy statement filed by a non-banking corporation under the 1934 Act, or
(xiv) any material transaction not in the ordinary course of First Midlothian's or First Bank's respective businesses consistent with their respective past practices. Except as set forth in SCHEDULE 1(q), since the date of the First Midlothian Financial Statements, neither First Midlothian nor First Bank has made or permitted, or agreed to make or permit, any material modification or termination of any material agreement, commitment or arrangement, except in the ordinary course of their respective businesses consistent with their respective past practices.
Appears in 2 contracts
Sources: Reorganization Agreement (Surety Capital Corp /De/), Reorganization Agreement (Surety Capital Corp /De/)
Material Contracts. Section 3.10 Except as set forth on Schedule 4.1(r) of the Company Disclosure Schedule contains Schedules or as disclosed in the Company Reports (including all exhibits thereto (including exhibits incorporated by reference therein)), neither the Company nor any of its Subsidiaries is a list party to or otherwise bound by:
(i) any lease of personal property providing for annual rental payments of $1,000,000 or more or any lease of any material real property;
(ii) any agreement (other than purchase orders entered into in the ordinary course of business) for the purchase of materials, supplies, goods, services, equipment or other assets (including specifically-manufactured or unique parts) the terms of which provide for aggregate payments by the Company and its Subsidiaries of $1,000,000 or more;
(iii) any sales, distribution or other similar agreement (other than purchase orders entered into in the ordinary course of business) providing for the sale by the Company or any of its Subsidiaries of materials, supplies, goods, services, equipment or other assets that provides for aggregate payments to the Company and its Subsidiaries of $1,000,000 or more;
(iv) any partnership, joint venture or other similar agreement or arrangement;
(v) any agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(vii) any license, franchise or similar agreement that is not terminable by the Company without material penalty upon ninety (90) days or less notice to the other party thereto;
(viii) any agreement (or provision in an agreement) whose purpose is to limit the freedom of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or any of its properties Subsidiaries to compete in any line of business or assets are bound, as with any Person or in any area and which limitation is material or which would so limit the freedom of the date Company or any of this Agreement its Subsidiaries after the Closing Date;
(ix) any agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of the Company or any of its Subsidiaries, (B) any Person (other than the Company and its Subsidiaries) 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by the Company or any of its Subsidiaries or (C) any director or officer of the Company or any of its Subsidiaries or any “associates” or members of the “immediate family” (as such Contractsterms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such director or officer;
(x) any material agreement to indemnify a third party other than any agreement entered into in the ordinary course of business consistent with past practices or any other agreement listed in any sub-section of Schedule 4.1(r) of the Company Disclosure Schedules; or
(xi) any other Contract not made in the ordinary course of business that is material to the Company and its Subsidiaries, together with taken as a whole. Each agreement, contract, plan, lease, arrangement or commitment disclosed or required to be disclosed on Schedule 4.1(r) of the Intellectual Property Licenses, Company Disclosure Schedules (each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers is a valid and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness binding agreement of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) Subsidiary of the Disclosure ScheduleCompany, as the Company has made available to Purchaser true case may be, and is in full force and effect. True and complete copies of each Material Contract (including all modifications, any material modifications and amendments and supplements thereto and material waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, ) have been made available to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material ContractParent. Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company’s Knowledge, any other party thereto, is in breach of material violation of, or default under (or is alleged to be in breach or material default under). The Company has neither provided , nor received does there exist any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, condition that with notice or lapse of time time, or both, may give rise towould cause such a material violation of or material default under, serve as a basis for, or would constitute an event of default under any Material Contract to which it is a party or result in a termination thereof by which it, or would cause any of its properties or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderassets, is otherwise bound.
Appears in 2 contracts
Sources: Merger Agreement (Artesyn Technologies Inc), Merger Agreement (Emerson Electric Co)
Material Contracts. (a) Section 3.10 4.19 of the Company Disclosure Schedule contains a complete and correct list of each of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):contracts:
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments Contracts required to any third party in be filed by the twelve (12) month period prior Company with the SEC pursuant to Item 601 of Regulation S-K under the date hereof, in excess of $500,000; or 1933 Act;
(ii) received each Contract between the Company or any of its Subsidiaries and any of the 20 largest customers of the Company and its Subsidiaries by monthly recurring revenue for the quarter ended June 30, 2009;
(iii) except for the Contracts disclosed in clauses (i) and (ii) above and any other customer Contract, each Contract that involves performance of services or delivery of goods, materials, supplies or equipment by the Company or any of its Subsidiaries, or the payment therefor, by the Company or any of its Subsidiaries providing for either (A) annual payments from of $1,000,000 or more or (B) aggregate payments of $2,000,000 or more;
(iv) each Company Lease relating to any third party data center;
(v) any partnership, joint venture or other similar agreement or arrangement;
(vi) each Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(vii) each Contract relating to Indebtedness or the deferred purchase price of property of or by the Company or any of its Subsidiaries (in either case, whether incurred, assumed, guaranteed or secured by any asset) entered into other than in the twelve ordinary course of business consistent with past practice;
(12viii) month prior each Contract to which the date hereofCompany or any of its Subsidiaries is a party creating or granting a Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens;
(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 (other than the Company or any of its Subsidiaries and other than extensions of credit or loans in the ordinary course of business consistent with past practice);
(x) any agency, dealer, sales representative, marketing or other similar agreement involving the payment or receipt of annual payments in excess of $500,000;
(bxi) collective bargaining agreements and each Contract that contains any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for exclusivity provisions restricting the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging or that limits the freedom of the Company or any of its Affiliates to compete in any line of business or geographic region with any Person, (ii) soliciting Person or in any customers, suppliers, employees area or contractors which would so limit the freedom of the Company or any other Person, or (iii) competing with any Personof its Affiliates after the Closing Date;
(ixii) Contracts that contain or provide each Contract providing for “most favored nations” terms;
(j) Contracts with indemnification of any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or Person with respect to material liabilities relating to any current or former business of the acquisition or disposition Company, any of any business, assets or securities, its Subsidiaries or any equity or debt investment in predecessor Person other than indemnification obligations of the Company or any loan of its Subsidiaries pursuant to any Person; provided, that the foregoing shall not apply to non-disclosure agreements provisions of a Contract entered into in connection therewith (other than sales by the Company or any of assets its Subsidiaries in the ordinary course of business);
(l) Contracts providing for business consistent with past practices and that could not reasonably be expected to have a Material Adverse Effect on the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverCompany; and
(oxiii) Contracts related to capital projects and capital expenditures any other agreement, commitment, arrangement or plan not made in the ordinary course of business involving the payment or receipt of annual payments in excess of $100,000 1,000,000.
(b) As of the date of this Agreement, except as would not reasonably be expected to have, individually or $250,000 in the aggregate. Other than , a Material Adverse Effect on the Intellectual Property Licenses that Company, each agreement, contract, plan, Company Lease, arrangement or commitment disclosed in the Company is not Disclosure Schedule or required to disclose on be disclosed pursuant to this Section 3.17(a4.19 (each, a “Material Contract”) is a valid and binding agreement of the Disclosure ScheduleCompany or a Subsidiary, as the Company has made available to Purchaser true case may be, and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect effect, and none of the Company, any of its Subsidiaries or, to the knowledge of the Company, any other party thereto is valid and enforceable against in default or breach in any material respect under the applicable Target terms of any such agreement, contract, plan, Company Lease, arrangement or commitment, and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements knowledge of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence event or circumstance has occurred or exists whichthat, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an any event of default thereunder.
(c) To the knowledge of the Company, as of the date of this Agreement no person is renegotiating, or has an express right (absent any default or breach of a Material Contract) pursuant to the terms of any Material Contract to renegotiate, any material amount paid or payable to the Company under any Material Contract or result in a termination thereof any other material term or would cause or permit the acceleration or other changes provision of any right or obligation or Material Contract. As of the loss date of this Agreement, the Company has not received any material benefit thereunderwritten indication of an intention to terminate any of the Material Contracts by any of the parties to any of the Material Contracts.
(d) Complete and correct copies of each Material Contract in existence as of the date of this Agreement have been made available by the Company to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Equinix Inc), Merger Agreement (Switch & Data Facilities Company, Inc.)
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains a list of the following types of Contracts 4.16(a) lists all Contracts, oral or written (and each amendment or modification theretocollectively, “Material Contracts”) to which the Company is a party and which are currently in effect and constitute the following:
(i) all Contracts that require annual payments or expenses by, or annual payments or income to, the Company of $100,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practice);
(ii) all sales, advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar contracts and agreements, in each case requiring the payment of any Target commissions by the Company in excess of $100,000 annually;
(iii) all employment Contracts, employee leasing Contracts, and consultant and sales representatives Contracts with any current or former officer, director, employee or consultant of the Company or other Person, under which the Company (A) has continuing obligations for payment of annual compensation of at least $100,000 (other than oral arrangements for at-will employment), (B) has severance or post termination obligations to such Person (other than COBRA obligations), or (C) has an obligation to make a payment upon consummation of the transactions contemplated hereby or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company and partnership agreements to which the Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(bv) collective bargaining agreements and all Contracts relating to any acquisitions or dispositions of assets by the Company other contracts with any labor unionsthan in the ordinary course of business;
(cvi) all Contracts (for material licensing agreements, including Contracts licensing Intellectual Property Rights, other than Benefit Plans) for the employment or engagement of any officer“shrink wrap” licenses, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(dvii) all Contracts evidencing Indebtedness limiting the freedom of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant Company to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging compete in any line of business or geographic region with any Person, (ii) soliciting Person or in any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Persongeographic area;
(iviii) all Contracts that contain or provide for “most favored nations” termsrelating to patents, trademarks, service marks, trade names, brands, copyrights, trade secrets and other Intellectual Property Rights of the Company;
(jix) all Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any mergerproviding for guarantees, consolidation indemnification arrangements and other hold harmless arrangements made or other business combinationprovided by the Company, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or with respect to the acquisition or disposition of any businesssimilar obligations, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets service contracts in the ordinary course of business);
(lx) all Contracts providing for with or pertaining to the settlement Company to which any Affiliate of any material Proceedingthe Company is a party;
(mxi) limited liability company agreementsall Contracts relating to property or assets (whether real or personal, partnership agreements, Tax Sharing Agreements tangible or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(nintangible) outstanding powers-of-attorney granted by in which the Company for any purpose whatsoever; and
holds a leasehold interest (oincluding the Leases) Contracts related and which involve payments to capital projects and capital expenditures the lessor thereunder in excess of $100,000 individually per year;
(xii) all Contracts relating to outstanding Indebtedness, including financial instruments of indenture or $250,000 in security instruments (typically interest-bearing) such as notes, mortgages, loans and lines of credit;
(xiii) any Contract relating to the aggregate. Other voting or control of the equity interests of the Company or the election of directors of the Company (other than the Intellectual Property Licenses organizational documents of the Company);
(xiv) any Contract not cancellable by the Company with no more than 60 days’ notice if the effect of such cancellation would result in monetary penalty to the Company in excess of $100,000 per the terms of such contract;
(xv) any Contract that can be terminated, or the provisions of which are altered, as a result of the consummation of the transactions contemplated by this Agreement or any of the Additional Agreements to which the Company is not required to disclose on Section 3.17(aa party; and
(xvi) any Contract for which any of the Disclosure Schedulebenefits, compensation or payments (or the Company has made available to Purchaser true and complete copies vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated hereby or the amount or value thereof will be calculated on the basis of any of the transactions contemplated by this Agreement.
(b) Except as set for the on Schedule 4.16(b), each Material Contract (including all modificationsis a valid and binding agreement, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect effect, and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither neither the Company nor, to the Company’s Knowledgeknowledge, any other party thereto, is in breach of or default in any material respect (whether with or without the passage of time or the giving of notice or both) under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice the terms of any intention to terminate any such Material Contract. To Except as set for the on Schedule 4.16(b), the Company has not assigned, delegated, or otherwise transferred any of its rights or obligations with respect to any Material Contracts, or granted any power of attorney with respect thereto or to any of the Company’s Knowledgeassets. Except as set forth on Schedule 4.16(b), no Occurrence has occurred Contract (i) requires the Company to post a bond or exists which, with notice deliver any other form of security or lapse of time payment to secure its obligations thereunder or both, (ii) imposes any non-competition covenants that may give rise to, serve as a basis forbe binding on, or would constitute an event restrict the Business or require any payments by or with respect to Purchaser or any of its Affiliates.
(c) Except as set forth on Schedule 4.16(c), none of the execution, delivery or performance by the Company of this Agreement or Additional Agreements to which the Company is a party or the consummation by the Company of the transactions contemplated hereby or thereby constitutes a material default under or gives rise to any Material Contract right of termination, cancellation or result in a termination thereof or would cause or permit the acceleration or other changes of any right obligation of the Company or obligation or the to a loss of any material benefit thereunderto which the Company is entitled under any provision of any Material Contract.
(d) Except as set for the on Schedule 4.16(d), the Company is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or agreements evidencing any Indebtedness.
Appears in 2 contracts
Sources: Merger Agreement (Vincera Pharma, Inc.), Merger Agreement (LifeSci Acquisition Corp.)
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains 4.11(a) sets forth a true, correct and complete list of the following types of Contracts (and each amendment or modification thereto) Contract to which any Target Company Enservco is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement party (such Contracts, together with the Intellectual Property Licenses, eacheach contract required to be set forth on Schedule 4.11(a), a “Enservco Material Contract”):) that:
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments contains covenants that limit the ability of Enservco (A) to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging compete in any line of business or with any Person or in any geographic region with area or to sell, or provide any service or product or solicit any Person, including any non-competition covenants, employee and customer non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or (iiB) soliciting any customers, suppliers, employees to purchase or contractors of acquire an interest in any other Person, or (iii) competing with any Person;
(iii) Contracts that contain involves any joint venture, profit-sharing, partnership, limited liability company or provide for “most favored nations” termsother similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture;
(jiii) Contracts with involves any Governmental Authorityexchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(kiv) Contracts entered into evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of Enservco having an outstanding principal amount in connection excess of $100,000;
(v) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $100,000 (other than in the ordinary course of business consistent with past practice) or shares or other equity interests in or of another Person;
(vi) relates to any merger, consolidation or other business combination, combination with any other Person or with respect to the acquisition or disposition of any business, other entity or its business or material assets or securitiesthe sale of Enservco, its business or material assets;
(vii) by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by Enservco under such Contract or Contracts of at least $50,000 per year or $150,000 in the aggregate;
(viii) obligates Enservco to provide continuing indemnification or a guarantee of obligations of a third party after the date hereof in excess of $100,000;
(ix) is between Enservco and any equity Top Customer or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith Top Supplier (other than sales of assets in the ordinary course of business);
(lx) Contracts providing for is between Enservco and any directors, officers or employees of Enservco (other than at-will employment arrangements with employees entered into in the settlement ordinary course of business consistent with past practice), including all non-competition, severance and indemnification agreements, or any material ProceedingRelated Person;
(mxi) limited liability company agreements, partnership agreements, Tax Sharing Agreements obligates Enservco to make any capital commitment or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures expenditure in excess of $100,000 individually 25,000 (including pursuant to any joint venture);
(xii) relates to a material settlement entered into within two (2) years prior to the Effective Date or $250,000 under which Enservco has outstanding obligations (other than customary confidentiality obligations or in the aggregate. Other ordinary course of business);
(xiii) provides another Person (other than the Intellectual Property Licenses that the Company another Enservco or any manager, director or officer of Enservco) with a power of attorney;
(xiv) relates to any real estates, including, without limitation, leases, lease guarantees, agreements and documents related thereto;
(xv) evidences any Liens; or
(xvi) is otherwise material to Enservco and not required described in clauses (i) through (xv) above.
(b) With respect to disclose on Section 3.17(aeach Enservco Material Contract: (i) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each such Enservco Material Contract is valid and binding and enforceable in all respects against Enservco party thereto (including all modificationssubject to the Enforceability Exceptions) and, amendments to the Knowledge of Enservco, each other party thereto, and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect effect; (ii) neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will affect the validity or enforceability of any Enservco Material Contract; (iii) Enservco is not in breach or default in any respect, and is valid and enforceable against no event has occurred that with the applicable Target Company andpassage of time or giving of notice or both would constitute a breach or default by Enservco, or permit termination or acceleration by the other party thereto, under such Enservco Material Contract; (iv) to the Company’s KnowledgeKnowledge of Enservco, the no other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a such Enservco Material Contract is in compliance breach or default in all material respects any respect, and no event has occurred that with the terms and requirements passage of time or giving of notice or both would constitute such a breach or default by such other party, or permit termination or acceleration by Enservco, under such Enservco Material Contract andContract; (v) Enservco has not received written or, to the Company’s KnowledgeKnowledge of Enservco, each other Person that is oral notice of an intention by any party to any such Enservco Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, that provides for a continuing obligation by any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention thereto to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any such Enservco Material Contract or result amend the terms thereof, other than modifications in a termination thereof or would cause or permit the acceleration or other changes ordinary course of business that do not adversely affect Enservco; and (vi) Enservco has not waived any right or obligation or the loss of rights under any material benefit thereundersuch Enservco Material Contract.
Appears in 2 contracts
Sources: Share Exchange Agreement (Star Equity Holdings, Inc.), Share Exchange Agreement (Enservco Corp)
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains a list 5.16 sets forth all of the following types of Contracts (and each amendment or modification thereto) to which the Company or any Target Company of its Subsidiaries is a party, party or by which such Target Company or its properties or assets are boundit is bound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and any Seller or any current or former officer, director, stockholder or Affiliate of the Company or any of its Subsidiaries;
(ii) Contracts with Material Customers, any labor union or association representing any employee of the Company or any of its Subsidiaries;
(iii) Contracts pursuant to which any Target Company (i) made payments party is required to any third party in the twelve (12) month period prior purchase or sell a stated portion of its requirements or output from or to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000another party;
(biv) collective bargaining agreements and Contracts for the sale of any of the assets of the Company or any of its Subsidiaries other contracts with than in the Ordinary Course of Business or for the grant to any labor unionsPerson of any preferential rights to purchase any of its assets;
(cv) Contracts for joint ventures, strategic alliances or partnerships;
(vi) Contracts containing covenants of the Company or any of its Subsidiaries not to compete in any line of business or with any Person in any geographical area or covenants of any other than Benefit PlansPerson not to compete with the Company or any of its Subsidiaries in any line of business or in any geographical area;
(vii) Contracts relating to the acquisition by the Company or any of its Subsidiaries of any operating business or the capital stock of any other Person;
(viii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of its assets;
(ix) Contracts under which the Company or any of its Subsidiaries has made advances or loans to any other Person;
(x) Contracts providing for severance, retention, change in control or other similar payments;
(xi) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide annual cash compensation basis;
(xii) Contracts for the provision of goods or services involving consideration in excess of $150,000 per year50,000 annually or $100,000 in the aggregate over the term of the Contract and not terminable by the Company or the applicable Subsidiary upon thirty (30) days’ notice or less;
(dxiii) Contracts evidencing Indebtedness outstanding agreements of guaranty, surety or indemnification, direct or indirect, by the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any PersonSubsidiaries;
(ixiv) Contracts that contain (or provide for “most favored nations” termsgroup of related contracts) which involve the expenditure of more than $50,000 annually or $100,000 in the aggregate or require performance by any party more than one (1) year from the date hereof;
(jxv) Contracts with involving any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverroyalty payments on Intellectual Property; and
(oxvi) Contracts related that are otherwise material to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderits Subsidiaries.
Appears in 2 contracts
Sources: Stock Purchase Agreement (T-3 Energy Services Inc), Stock Purchase Agreement (T-3 Energy Services Inc)
Material Contracts. (a) Section 3.10 3.15 of the Seller Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, sets forth as of the date hereof a true and complete list in all material respects of this Agreement the following Contracts to which Seller or any member of the Commercial Air Group is a party or is bound with respect to the Business (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(i) any Contracts with an OEM relating to the purchase of new aircraft or aircraft engines (other than those contracts relating solely to delivered aircraft or delivered aircraft engines);
(ii) any Lease Document;
(iii) any Contract containing any non-competition provision that limits in any material respect the ability of the members of the Commercial Air Group to engage in any business or compete with any person;
(iv) any Contract material to the Business that grants any member of the Commercial Air Group an equity interest in a joint venture or partnership with any unaffiliated third party involving a sharing of profits or losses with such unaffiliated third party;
(v) any Contract, other than a contract with another member of the Commercial Air Group, for the issuance of any equity security or other equity interest, or the conversion of any obligation, instrument or security into equity securities or other equity interests of, any member of the Commercial Air Group;
(vi) any employment agreements with any person involving an annual base compensation in excess of $400,000;
(vii) any Contract between (i) any member of the Commercial Air Group on the one hand and (ii) and any current or former director, executive officer or employee of any member of the Seller Group or Commercial Air Group on the other hand, that, in each case, requires a payment to such person in excess of $1,000,000;
(viii) any Contract relating to or evidencing third-party Indebtedness of the type described in clauses (a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts or (c) of the definition of Indebtedness that has an aggregate outstanding principal amount in excess of $7,500,000;
(ix) any Contract pursuant to which any Target Company member of the Commercial Air Group has provided funds or made any loan for borrowed money or capital contribution to, or made any other investment in, or assumed, guaranteed or agreed to act as surety with respect to (including any so called take-or-pay or keepwell agreements), any Indebtedness, liability or obligation of, any person, other than (A) any member of the Commercial Air Group or (B) a Seller Joint Venture, in each case in excess of US $7,500,000;
(x) any Contract for the (A) acquisition of property or assets by members of the Commercial Air Group; or (B) sale, transfer or disposition of properties or assets of the members of the Commercial Air Group, in either case, that has a purchase or sale price of more than $7,500,000, other than Contracts that involve the acquisition, sale, transfer or disposition of properties or assets where such acquisition, sale, transfer or disposition has occurred as of the date hereof, and other than any Contract described in clause (i);
(xi) any material Contract with a Governmental Entity, other than any Contract described in clause (ii); and
(xii) other than any Contract (A) of the type described in clauses (i) made payments through (xi) (or any of the exceptions thereto) or (B) terminable by Seller or the applicable member of the Commercial Air Group without penalty upon no more than 30 days’ notice, any Contract involving the performance of services by, or delivery or goods or materials to or by, any third party member of the Commercial Air Group with an expected amount of value in excess of $5,000,000 over the next twelve (12) month period prior to (other than any Contract between a member of the date hereofCommercial Air Group, in excess on the one hand, and another member of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to Commercial Air Group, on the date hereof, in excess of $500,000;other hand).
(b) collective bargaining agreements The Data Room contains true, accurate and complete copies of all Material Contracts (and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) material amendments, supplements and modifications thereto), except for the employment or engagement OEM Contracts, true, accurate and complete copies of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has have separately been made available to Purchaser true and complete copies in hard copy form in accordance with the procedures of the applicable OEMs. For the avoidance of doubt, each OEM Contract constitutes a Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder)hereunder. Each Material Contract is a legal, valid and binding obligation of each member of the Commercial Air Group which is party thereto and, to the Knowledge of Seller, each counterparty thereto, and is in full force and effect effect, and is valid and enforceable against neither such member of the applicable Target Company andCommercial Air Group, nor to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements Knowledge of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s KnowledgeSeller, any other party thereto, is in breach of of, or default under (or is alleged to be in breach or default under). The Company has neither provided nor received , any notice of any intention to terminate any such Material Contract. To the Company’s Knowledge, and no Occurrence event has occurred or exists whichthat, with notice or lapse of time time, or both, may give rise towould constitute such a breach or default thereunder by the members of the Commercial Air Group, serve as a basis foror, to the Knowledge of Seller, any other party thereto, except for such failure to be valid, binding or in full force and effect and such breaches and defaults that have not been or would constitute an event not reasonably be expected to be material to the operation of default under the Business. As of the date hereof, no written notice of termination of any Material Contract has been given or result in a termination thereof or would cause or permit received by any member of the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderCommercial Air Group.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Cit Group Inc)
Material Contracts. Section 3.10 To the best of the Disclosure Schedule contains a list Company's knowledge, except for the contracts of the following types of Contracts Company set forth on Exhibit 2.13 attached hereto (and each amendment or modification thereto) to which any Target collectively, the "Contracts"), the Company is not a party, party to or otherwise bound by which such Target Company any written or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):oral:
(a) Other than Contracts contract or series of contracts with Material Suppliers and Contracts the same Person for the purchase of machinery, equipment, goods or services, or the furnishing of services, including without limitation, contracts with Material Customersfranchisees, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, contracts have a value in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,00025,000;
(b) collective bargaining agreements and any other contracts contract with any labor unionsunion (and, to the best of the Company's knowledge, no organizational effort is being made with respect to any of their employees);
(c) Contracts containing any pay-back or other similar provision, upon the occurrence of a failure by the Company to meet its obligations under the contract when due or the occurrence of any other event;
(other than Benefit Plansd) contract for the future purchase of fixed assets or for the future purchase of materials, supplies or equipment in excess of its normal operating requirements;
(e) contract for the employment or engagement of any officer, employee or other Person person on a full-timetime or consulting basis, part-timewhich is not terminable on notice without cost or liability to the Company, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leasesexcept normal severance arrangements and accrued vacation pay;
(f) Contracts with Material Suppliersbonus, pension, profit-sharing, retirement, hospitalization, insurance, stock purchase, stock option or other plan, contract or understanding pursuant to which benefits are provided to any employee of the Company (other than group insurance plans applicable to employees generally);
(g) Contracts with Material Customersagreement or indenture relating to the borrowing of money or to the mortgaging or pledging of, or otherwise placing a lien or security interest on, any asset of the Company or any agreement or instrument evidencing any guaranty by the Company of payment or performance by any other Person;
(h) Contracts containing voting trust or agreement, stockholders' agreement, pledge agreement, buy-sell agreement or first refusal or preemptive rights agreement relating to any covenant securities of a Target the Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Personthan the Stockholders Agreement;
(i) Contracts that contain agreement or provide for “most favored nations” termsobligation (contingent or otherwise) to issue, sell or otherwise distribute or to repurchase or otherwise acquire or retire any shares of its capital stock or any of its other equity securities (except as contemplated in Section 3.10);
(j) Contracts with agreement under which the Company has advanced or agreed to advance money, or under which the Company has agreed to lease any Governmental Authorityproperty as lessee or lessor for annual lease payments in excess of $25,000;
(k) Contracts entered into in connection with agreement under which the Company has granted any mergerperson any registration rights, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business)Registration Rights Agreement;
(l) Contracts providing for agreement under which the settlement of any material Proceeding;
(m) Company has limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company restricted its right to compete with any other Person.Person in any respect;
(n) outstanding powers-of-attorney granted by agreement providing for disposition of the business, assets or shares of the Company for any purpose whatsoever; and
(o) Contracts related agreement of merger or consolidation to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that which the Company is not required to disclose on Section 3.17(a) a party or letter of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, intent with respect to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.foregoing; or
Appears in 2 contracts
Sources: Series a Convertible Preferred Stock Purchase Agreement (Viagrafix Corp), Series a Convertible Preferred Stock Purchase Agreement (Viagrafix Corp)
Material Contracts. Section 3.10 4.01(q) of the Company Disclosure Schedule contains sets forth a true and complete list of the following types of all Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with whether listed or required to be listed, collectively, the Intellectual Property Licenses, each, a “Company Material ContractContracts”):) that fall within the following categories:
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made any Contract that by its terms provides for aggregate minimum required payments to by or minimum purchase requirements from the Company and/or its Subsidiaries in an amount in excess of $500,000 during any third party in the twelve (12) month period prior after the Agreement Date, except for any such Contract that may be canceled, without penalty or other Liability to the date hereofCompany or any of its Subsidiaries, upon notice of thirty (30) calendar days or less, and except for purchase orders for the sale of Products entered into in excess the ordinary course of $500,000; or business consistent with past practice;
(ii) received payments any Contract that grants any right of first refusal or right of first offer or that limits or purports to limit the ability of the Company or any Subsidiary of the Company to own, operate, sell, transfer or otherwise dispose of any material amount of assets or businesses; provided, however, this subsection (ii) shall not be deemed to refer to Contracts described under Section 4.01(q)(viii) below (and Section 4.01(q)(viii) does not refer to Contracts described by this subsection (ii))
(iii) any note, bond, debenture, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement, credit agreement, indenture or other Contract for the borrowing or lending of money (including loans to or from any third party officer or director of the Company or any of its Subsidiaries or any member of the immediate family of any such officer or director), agreement or arrangements for a line of credit or guarantee, pledge or undertaking of indebtedness of any other Person, (A) other than lines of credit with respect to corporate credit cards and trade payables incurred in the twelve ordinary course of business consistent with past practice and (12B) month prior except to the date hereofextent that any of the foregoing does not exceed $50,000 individually, or $150,000 in excess the aggregate (not including for purposes of $500,000this clause (B) any lines of credit excluded by clause (A) above);
(biv) collective bargaining agreements and any other contracts Contract with respect to co-promotion of, or co-development of any labor unionsproduct or product candidate;
(cv) Contracts any joint venture, partnership or other similar agreement (however named) providing for or governing the formation, creation, operation, management or control of any partnership, joint venture or other than Benefit Planssimilar arrangement;
(vi) any Contract under which the Company or any of its Subsidiaries expressly grants any license or similar rights under any Company Intellectual Property (except for any Contract granting non-exclusive license rights for the employment or engagement primary purpose of any officer(A) material transfer, employee sponsored research or other similar matters entered into in the ordinary course of business consistent with past practice, (B) establishing confidentiality or non-disclosure obligations, (C) conducting clinical trials or clinical and/or pre-clinical research, or (D) manufacturing, labeling or distributing the Company’s or any of its Subsidiaries’ Products for clinical trials);
(vii) any Contract under which the Company or any of its Subsidiaries is granted any license or similar rights under any Intellectual Property, excluding non-exclusive licenses with respect to software that is generally commercially available;
(viii) any Contract containing covenants or conditions that in any way purport to restrict or prohibit the business activity of the Company or any Subsidiary of the Company, or limit the freedom of the Company or any Subsidiary of the Company to engage in any line of business or to compete with any Person on a full-timeor to sell, part-timesupply or distribute any product or service, in each case, in any location, or to restrict or prohibit the Company or any Subsidiary of the Company from hiring any individual or group of individuals; provided, however, this subsection (viii) shall not be deemed to refer to (A) any Contract under which the Company or any of its Subsidiaries is granted any license or similar rights under any Intellectual Property, (B) any Contract to sell or supply products or to perform services, (C) any representative, sales agency or dealer Contract, (D) any distributor Contract, or (E) any Contract with recruiting agencies for permanent or temporary placements;
(ix) any Contract with any officer or director of the Company or any holder of 10% or more of the outstanding shares of Company Common Stock;
(x) any employment, consulting, independent contractor retention, severance, change-of-control, non-competition, termination or other basis that provide annual indemnification Contract between the Company or any Subsidiary of the Company and any employee earning non-contingent cash compensation in excess of $150,000 per yearyear as of the Agreement Date, other than any confidentiality agreement, non-disclosure agreement or their foreign equivalent;
(dxi) Contracts evidencing Indebtedness any Contract with any labor union, works council or other representative of the Target Companies in excess of $50,000employees, including any loan or credit collective bargaining agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Personarrangements with works councils and work rules and practices;
(exii) any Contract to sell or supply products or to perform services, involving in any one case more than $250,000 that is not terminable within 30 days without payment by the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any PersonSubsidiaries, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts than purchase orders entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business consistent with past practice;
(xiii) any current Contract with a sales representative, sales agency or dealer who earned more than $150,000 in commissions from the Company in 2010, exclusive of Contracts relating to the liability of any such representative, sales agency or dealer for Product inventory consigned to a specific customer account and any confidentiality agreements, non-disclosure agreements or their foreign equivalent; provided, however, this subsection (xiii) shall not be deemed to refer to Contracts with distributors of the Company’s products;
(xiv) any current Contract with a distributor (which shall not be deemed to refer to sales representatives, sale agents or dealers) involving in any one case more than $250,000 in sales of the Company’s products in 2010;
(xv) any lease with respect to personal property under which the Company or any Subsidiary of the Company is either lessor or lessee, involving in any one case more than $250,000 per year;
(xvi) any lease with respect to real property under which the Company or any Subsidiary of the Company is either lessor or lessee, involving in any one case more than $150,000 per year;
(xvii) any Contract for any capital expenditure, involving in any one case more than $250,000;
(xviii) any Contract under which the Company has granted any Person registration rights (including demand and piggy-back registration rights), other than Contracts relating to shares of capital stock with respect to the stock certificates evidencing which, as of the Agreement Date, the applicable restrictive legend may be removed consistent with Rule 144 under the Securities Act;
(xix) any “single source” supply Contract pursuant to which goods or materials that are material to the Company’s business are supplied from an exclusive source;
(xx) any Contract (including binding letters of intent) regarding the acquisition of a Person or business, whether in the form of an asset purchase, merger, consolidation or otherwise (including any such Contract that has closed but under which one or more of the parties has executory indemnification, earn-out or other Liabilities);
(lxxi) Contracts providing any Contract with any Governmental Entity, other than purchase orders for the settlement sale of any material ProceedingProducts entered into in the ordinary course of business consistent with past practice;
(mxxii) limited liability company agreements, partnership agreements, Tax Sharing Agreements any Contract that by its terms limits the payment of dividends or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted distributions by the Company for or any purpose whatsoever; andof its Subsidiaries;
(oxxiii) Contracts related any Contract with any non-employee physician, other than any Contract relating to capital projects the tender of stock options in 2007 or 2008 and capital expenditures any confidentiality agreement, non-disclosure agreement or their foreign equivalent; or
(xxiv) any amendments, supplements, modifications or renewals in excess respect of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) any of the Disclosure Schedule, the Company has made available to Purchaser true foregoing. True and complete copies of each all the Company Material Contract Contracts and all amendments or waivers (including all modifications, amendments and supplements thereto other than immaterial waivers and waivers thereunder)which did not permanently waive any rights or obligations under any such Contracts) thereunder have been made available to Parent. Each of the Company Material Contract Contracts is in full force and effect and is a valid and binding obligation of the Company, enforceable against the applicable Target Company andor its Subsidiaries, and to the Company’s Knowledge, the other party or parties thereto thereto, in accordance with their its terms, except subject, as to enforceability, to bankruptcy, insolvency and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (regardless of whether considered in a proceeding in equity or at law). Except as set forth in Section 4.01(q)(xxv) of the Company Disclosure Schedule, no event has occurred with respect to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with or any of its Subsidiaries, and neither the terms and requirements Company nor any of such Material Contract andits Subsidiaries, nor to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, Knowledge any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The a Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred materially violated any provision of, or exists whichtaken or failed to take any action, which in any such case, with or without notice or lapse of time or both, may would constitute a material breach, violation or default, or give rise toto a right of termination, serve modification, cancellation, foreclosure, imposition of a Lien (other than a Permitted Lien), prepayment or acceleration under any of the Company Material Contracts, and neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted any Company Material Contract. Except as a basis forset forth in Section 4.01(q)(xxv) of the Company Disclosure Schedule, to the Company’s Knowledge, neither the Company nor any of its Subsidiaries has received any written notice from any other party to any Company Material Contract, and otherwise has no Knowledge, that any such party intends to terminate, or would constitute an event of default under not to renew, any such Company Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderContract.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Orthovita Inc)
Material Contracts. (a) Section 3.10 3.14(a) of the Company Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are boundsets forth, as of the date of this Agreement agreement, the following Contracts to which the Company or any of its Subsidiaries is a party or by which it is otherwise bound that are currently in force or pursuant to which the Company or any of its Subsidiaries currently has any outstanding obligations or Liabilities and that are included within any of the following categories (such Contractsexcluding any Contract that is or relates to an Employee Benefit Plan) (Contracts of the type required to be so listed on section 3.14(a) of the Company Disclosure Schedule, together with regardless of the Intellectual Property Licensesdate of the agreement, each, a are referred to herein as the “Material ContractContracts”):
(ai) Other than Contracts required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company in a Current Report on Form 8-K;
(ii) Contracts with Material Suppliers (A) any officer, director or Affiliate of the Company or any of its Subsidiaries, including indemnification agreements, that have any continuing obligations as of the date of this agreement, or (B) to the Knowledge of the Company, any beneficial owner (as defined in Rule 13d-3 of the Exchange Act) of 5% or more of the shares of Company Common Stock;
(iii) Stockholder agreements, investors’ rights agreements, voting agreements, voting trusts, rights of first refusal and co-sale agreements or registration rights agreements or any Contracts with Material Customersrespect to the issuance, sale, transfer or other disposition of any equity or debt security of the Company or any of its Subsidiaries;
(iv) Contracts that (A) provides for the authorship, invention, creation, conception or other development by the Company or any Subsidiary for any other Person, or for the Company or any Subsidiary by any other Person, of any Intellectual Property or Intellectual Property Rights (including any joint development); (B) provides for the assignment or other transfer to the Company or any Subsidiary from any other Person, or by the Company or any Subsidiary to any other Person, of any ownership interest in Intellectual Property or Technology (provided that the Company need not list all Invention Assignment Agreements entered into by employees, contractors or consultants of the Company or its Subsidiaries on forms that are materially the same as a standard form Contract made available to Parent); or (C) constitute a material Intellectual Property Contract, (excluding (1) Contracts granting customers, distributors, OEMs or resellers non-exclusive licenses to Company Products that were entered into in the Ordinary Course of Business on forms that are materially the same as a standard form Contract made available to Parent, (2) inbound Open Source Licenses, and (3) licenses for generally available off-the-shelf software that is available on standard terms through commercial distributors, in consumer retail stores or through online distribution sources for a license fee of less than $75,000 annually);
(v) any Company Data Contract pursuant to which any Target Person is authorized to use, disclose or otherwise process any material Company Data that materially deviate from any form Company Data Contract made available to Parent, excluding any Contracts entered into in the Ordinary Course of Business;
(ivi) made payments Contracts of the Company or its Subsidiaries under which Company or any of its Subsidiaries grant, or is granted, any immunity, authorization, covenant not to ▇▇▇, license, sublicense or other right to practice Patents;
(vii) Contracts (excluding any Contract to which Parent but not the Company or its Subsidiaries is a party) that following Closing would or would purport to require any existing or future Subsidiaries or Affiliates of the Company or its Subsidiaries, including Parent, to grant to any third party Person (or to be bound by): (A) any express license, right or covenant not to ▇▇▇ or (B) any exclusive rights, noncompetition rights, rights of refusal or rights of first;
(viii) Contracts for the purchase and sale of any real property, Personal Property Leases and Real Property Leases;
(ix) loan or credit agreements, indentures, notes or other Contracts or instruments evidencing indebtedness by the Company or any of its Subsidiaries or Contracts or instruments pursuant to which indebtedness may be incurred or is guaranteed by the Company or any of its Subsidiaries, or any mortgages, pledges, security agreements, deeds of trust or other Contracts imposing a Lien (other than a Permitted Lien) on any of the Company’s or any of its Subsidiaries’ assets;
(x) Contracts under which the Company or any of its Subsidiaries has made advances or loans to any other Person, except for advances of business expenses of up to $500,000 in the twelve Ordinary Course of Business;
(12xi) month period prior Contracts relating to any single or series of related capital expenditures by the date hereof, Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries has future financial obligations in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,0001,000,000;
(bxii) collective bargaining agreements and Contracts for (A) the sale of any of the business, properties or assets of the Company or any of its Subsidiaries other contracts with than in the Ordinary Course of Business, (B) the grant to any labor unionsPerson of any preferential rights to purchase any of its properties or assets or (C) the acquisition by the Company or any of its Subsidiaries of any operating business, properties or assets, whether by merger, purchase or sale of stock or assets or otherwise (other than Contracts for the purchase of inventory or supplies entered into in the Ordinary Course of Business);
(cxiii) Contracts that grant to any Person other than the Company or any of its Subsidiaries any (A) exclusive license, supply, distribution or other rights, (B) “most favored nation” rights, (C) rights of first refusal, rights of first negotiation or similar rights or (D) exclusive rights to purchase any of the Company’s or its Subsidiaries’ products or services;
(xiv) Contracts (other than Benefit Plansemployment-related Contracts required to be disclosed on section 3.15(a) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including Company Disclosure Schedule and licenses for off-the-shelf software) providing for any loan minimum or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) payments by the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from Subsidiaries to any Person in excess of $1,000,000 annually;
(ixv) engaging Contracts for joint ventures, joint development, joint marketing, strategic alliances or partnerships;
(xvi) Contracts that purport to (A) limit, curtail or restrict the ability of the Company or any of its existing or future Subsidiaries or Affiliates, including Parent, to compete in any geographical area, market or line of business or geographic region with (B) restrict the Persons to whom the Company or any Personof its existing or future Subsidiaries or Affiliates, (ii) soliciting any customersincluding Parent, suppliers, employees may sell products or contractors of any other Person, or (iii) competing with any Persondeliver services;
(ixvii) Contracts that contain relating to the settlement of any Legal Proceeding or provide for “most favored nations” termsother administrative or judicial proceeding entered into in the three year period immediately preceding the date of this agreement (other than a separation and release agreement entered into with a departing employee or consultant);
(jxviii) Contracts with any Governmental Authorityforeign sales agent or foreign sales representative;
(kxix) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business)Any Government Contract;
(lxx) Any Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) relating to indebtedness and having an outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures principal amount in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that 1,000,000; or
(xxi) Contracts between the Company is not required to disclose or any of its Subsidiaries and any Top Customer or Top Channel Partner.
(b) Each of the Material Contracts listed on Section 3.17(asection 3.14(a) of the Company Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Schedule is in full force and effect with respect to the Company and is valid and enforceable against the applicable Target Company its Subsidiaries and, to the Knowledge of the Company’s Knowledge, each other party thereto, and is the other parties thereto legal, valid and binding obligation of the Company and its Subsidiaries, enforceable against the Company and its Subsidiaries in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the its terms and requirements of such Material Contract and, to the Knowledge of the Company’s Knowledge, is the legal, valid and binding obligation of each other Person that party thereto, enforceable against such party in accordance with its terms, in each case subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general defenses and principles of equity (regardless of whether enforcement is party to such Material Contract is sought in compliance a proceeding at law or in all material respects with the terms and requirements of such Material Contractequity). Neither the Company nor any of its Subsidiaries is in material default or material breach under the terms of any Material Contract, nor, to the Company’s Knowledge, any other party thereto, is in breach Knowledge of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists whichdoes any condition exist that, with notice or lapse of time or both, may give rise towould constitute a material default or material breach thereunder by the Company or any of its Subsidiaries. To the Knowledge of the Company, serve as no other party to any Material Contract is in material default or material breach thereunder, nor, to the Knowledge of the Company, does any condition exist that with notice or lapse of time or both would constitute a basis formaterial default or material breach by any such other party thereunder. Neither the Company nor any of its Subsidiaries has received any written, or would constitute an event to the Knowledge of default the Company, oral notice of termination, cancellation or intent not to renew under any Material Contract or received any written or, to the Knowledge of the Company, oral notice of breach or default under any Material Contract. The Company has made available to Parent true, correct and complete copies of all written Material Contracts (or a written description of the material terms of any Material Contract that is not written).
(c) With respect to the Government Contracts:
(i) Section 3.14(c)(i) of the Company Disclosure Schedule lists, as of the date of this agreement, all: (A) Government Contracts pursuant to which the Company or any Subsidiary receives revenue in excess of $1,000,000 over the term of such Contract, the period of performance of which has not yet expired or terminated or for which final payment has not yet been received (the “Current Government Contracts”), (B) quotations, bids and proposals for awards of new Government Contracts made by the Company or any of its Subsidiaries for which no award has been made and for which the Company believes there is a reasonable prospect that such an award to the Company or its Subsidiaries may yet be made (“Government Contract Bids”) and (C) Government Contracts pursuant to which the Company is currently or is reasonably likely to experience cost, schedule, technical or quality problems that could result in claims against the Company (or its successors in interest) by a Governmental Authority, a prime contractor or a higher-tier subcontractor. The Company has made available to Parent true, correct and complete copies of all Current Government Contracts and Government Contract Bids, including any amendments and other modifications thereto, and has provided Parent with access to true and correct copies of all documentation related thereto requested by Parent. Each of the Current Government Contracts is in full force and effect with respect to the Company and its Subsidiaries and, to the Knowledge of the Company, each other party thereto, and is the legal, valid and binding obligation of the Company and its Subsidiaries, enforceable against the Company and its Subsidiaries in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general defenses and principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(ii) No Current Government Contract is the subject of bid or award protest proceedings and, to the Knowledge of the Company, no Government Contracts are reasonably likely to become the subject of bid or award protest proceedings.
(iii) With respect to each Government Contract: (A) the Company and each of its Subsidiaries and employees has complied in all material respects with all terms and conditions of such Government Contract, including all clauses, provisions and requirements incorporated expressly, by reference therein or by operation of Law (including the notice and pricing requirements of the price reduction clause and the payment requirements of the industrial funding fee); (B) the Company and its Subsidiaries have complied in all material respects with all requirements of all Laws pertaining to such Government Contract, including all statutory and regulatory requirements and policy directives relating to Governmental Authority funding of programs involving research and development; (C) neither the Company nor its Subsidiaries has received any written, or to the Knowledge of the Company, oral notice from any Governmental Authority or any prime contractor, subcontractor or other Person stating that the Company or any of its Subsidiaries has materially breached or materially violated any Law, certification, representation, clause, provision, or disclosure obligation pertaining to such Government Contract; and (D) none of the execution, delivery or performance of this agreement and the other documents contemplated by this agreement does or will conflict with or result in a termination thereof material breach of or material default under such Government Contract.
(iv) The Company and its Subsidiaries (and to the Company’s Knowledge, their respective employees who hold personnel security clearances) possess all required facility security clearances to perform the Government Contracts and Government Task Orders and are in compliance with all applicable national security obligations, including those specified in the National Industrial Security Program Operating Manual, DOD 5220.22-M (February 2006), and any supplements, amendments or revised editions thereof, except to the extent any such noncompliance, individually or in the aggregate, has not had and would cause not reasonably be expected to have a Company Material Adverse Effect.
(v) Each of the Company and its Subsidiaries is in compliance in all material respects with the Federal Acquisition Regulation ethical rules and suspension/debarment regulations that went into effect on December 12, 2008 and has undertaken the appropriate level of review or permit investigation to determine whether the acceleration or other changes of Company and its Subsidiaries are required to make any right or obligation or the loss of disclosures to any material benefit thereunderGovernmental Authority under such rules and regulations.
Appears in 1 contract
Material Contracts. (a) Schedule 5.12(a) sets forth, by reference to the applicable subsection of this Section 3.10 of the Disclosure Schedule contains a list 5.12(a), all of the following types of Contracts (and each amendment or modification thereto) to which the Company or any Target Company of the other Group Companies is a party, party or by which such Target Company any of them or its their respective assets or properties or assets are boundbound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and any current or former officer, director, manager or Affiliate of the Company or any of the other Group Companies;
(ii) Contracts with Material Customers, for the sale of any of the Assets of the Company or any of the other Group Companies (other than in the Ordinary Course of Business);
(iii) Contracts pursuant to which any Target Company (i) made payments for the grant to any third party Person of any preferential rights to purchase any of the Assets of the Company or any of the other Group Companies;
(iv) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information;
(v) Contracts containing covenants of the Company or any of the other Group Companies not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any Person with respect to employment or covenants of any other Person not to compete with the twelve Company or any of the other Group Companies in any line of business or in any geographical area or not to solicit or hire any Person with respect to employment;
(12vi) month period prior Contracts relating to the date hereofacquisition (by merger, purchase of stock or assets or otherwise) by the Company or any of the other Group Companies of any operating business or material assets or the capital stock or other equity interests of any other Person;
(vii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the Assets of the Company or any other Group Company;
(viii) purchase Contracts giving rise to Liabilities of the Company or any of the other Group Companies in excess of $500,000; 15,000;
(ix) all Contracts providing for payments by or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, Company or any of the other Group Companies in excess of $500,00015,000 in any fiscal year or $75,000 in the aggregate during the term thereof;
(bx) collective bargaining agreements and all Contracts obligating the Company or any of the other Group Companies to provide or obtain products or services for a period of one (1) year or more or requiring the Company or any other contracts with Group Company to purchase or sell a stated portion of its requirements or outputs providing for payments in excess of $15,000 in any labor unionsfiscal year or $75,000 in the aggregate during the term thereof;
(cxi) Contracts under which the Company or any of the other Group Companies has made advances or loans to any other Person;
(xii) Contracts providing for severance, retention, change in control or other than Benefit Planssimilar payments;
(xiii) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide providing annual cash compensation in excess of $150,000 per year100,000;
(dxiv) material management Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan and Contracts with independent contractors or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, consultants (or similar letters of credit, arrangements) that are not cancelable without penalty or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Personfurther payment and without more than 30 days’ notice;
(exv) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any the other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverGroup Companies; and
(oxvi) Contracts related that are otherwise material to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aand the other Group Companies.
(b) Except as otherwise stated in Schedule 5.12(b), (i) each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against binding obligation of the applicable Target Company, or any other Group Company which is a party thereto, and, to the Company’s KnowledgeKnowledge of Seller, of the other parties thereto thereto, enforceable against each of them in accordance with their its terms, except subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and upon consummation of the extent enforcement may be affected transactions contemplated by Enforceability Exceptions. Each Target Company that is a party to a Material Contract this Agreement, shall, continue in full force and effect without penalty or other adverse consequence; (ii) none of the Group Companies is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such default under any Material Contract. Neither the Company , nor, to the Company’s KnowledgeKnowledge of Seller, is any other party thereto, is to any Material Contract in material breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledgethereunder, and no Occurrence event has occurred or exists which, that with notice or the lapse of time or both, may give rise to, serve as a basis for, the giving of notice or both would constitute an event a material breach or default by any Group Company or any other party thereunder; (iii) no party to any of default under the Material Contracts has exercised any termination rights with respect thereto, and no such party has given notice of any significant dispute with respect to any Material Contract Contract; (iv) the Group Companies have good and valid title to the Material Contracts, free and clear of all Liens other than Permitted Exceptions. The Group Companies have delivered to Purchaser true and correct copies of all of the Material Contracts, together with all amendments, modifications 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 material benefit thereundersupplements thereto.
Appears in 1 contract
Sources: LLC Membership Interest Purchase Agreement (Fushi International Inc)
Material Contracts. Section 3.10 Schedule 2.10 hereto sets forth, as of the Disclosure Schedule contains this Agreement, a list of all of the following types of Contracts contracts and agreements for the Company:
(and each amendment a) contracts or modification thereto) leases with respect to which any Target Company is a party, or by which such Target the Company or its properties or assets are bound, as the other party thereto has a stated obligation of more than $250,000 within the 12 month period from and after the date of this Agreement (such ContractsAgreement, together with other than normal and routine open purchase orders entered into in the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company ordinary course of business for (i) made payments to any third party the purchase of raw materials or supplies used in the twelve (12) month period prior to manufacture of products of the date hereof, in excess of $500,000; Company or (ii) received payments from any third party in the twelve (12) month prior services provided to the date hereof, in excess of $500,000Company;
(b) collective bargaining agreements and contracts relating to the borrowing of money, or the guaranty of any obligation for the borrowing of money, including any indenture, mortgage, promissory note, loan agreement or other contracts with agreement or commitment for the borrowing of money, for a line of credit or for any labor unionscapital leases or imposing a Lien, other than Permitted Liens, on any assets of the Company;
(c) Contracts (other than Benefit Plans) for contracts which place any material limitation on the employment operation of the Company’s business, such as agreements with non-solicitation, non-compete, exclusivity or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year“most favored nation” provisions;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000employment, including any loan or credit bonus, severance, retention and deferred compensation agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) material contracts or agreements with any consultant, advisor or agent of the LeasesCompany;
(f) Contracts contracts with Material Suppliersany labor union or association relating to employees of the Company, or collective bargaining agreements, including amendments and side letter agreements thereto;
(g) Contracts contracts with Material Customersany (i) current officer, director, or Affiliate of the Company or (ii) former officer, director, or Affiliate of the Company pursuant to which the Company has any continuing obligation;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Persondistribution and reseller agreements;
(i) Contracts that contain or provide for “most favored nations” termsresearch and development agreements;
(j) Contracts contracts with any Governmental AuthorityAuthorities;
(k) Contracts entered into in connection franchise, partnership and joint venture agreements (including any agreement providing for the sharing of profits, losses, costs or liability by the Company with any merger, consolidation or other business combination, or Person);
(l) contracts with respect to the acquisition mergers or disposition acquisitions of any businessoperating business or the capital stock of any other Person by the Company;
(m) material licensing agreements or other material contracts or agreements with respect to Intellectual Property, assets including material contracts or securitiesagreements with current employees, consultants or contractors regarding the appropriation or the non-disclosure of any equity or debt investment in or any loan Intellectual Property, except for licenses which relate to any Person; providedoff-the-shelf, that the foregoing shall not apply to commercially available computer software and non-disclosure agreements entered into executed in connection therewith the ordinary course of business by employees of or consultants to the Company;
(n) contracts under which the Company has made material advances or material loans to any other Person, except advancements of reimbursable ordinary and necessary business expenses made to directors, officers and employees of the Company in the ordinary course of business;
(o) agreements requiring indemnification by the Company (other than sales of assets indemnification provisions contained in agreements entered into in the ordinary course of business);
(lp) Contracts providing for contracts requiring the settlement Company to purchase all or substantially all of its requirements of a particular product from a supplier, except any material Proceedingcontract or agreement entered into in the ordinary course of business;
(mq) limited liability company settlements, conciliations or similar agreements, partnership agreementsthe performance of which will involve payment after the execution date of this Agreement for consideration in excess of $250,000 or governmental monitoring, Tax Sharing Agreements consent decree or joint venture agreements that involve a sharing reporting responsibilities outside the ordinary course of profits, losses, costs or liabilities by any Target Company with any other Person.business;
(nr) outstanding powers-of-attorney granted by contracts, agreements or arrangements for capital expenditures or the Company for any purpose whatsoeveracquisition or construction of fixed assets in excess of $250,000; and
(os) Contracts related to capital projects and capital expenditures the extent not otherwise listed on Schedule 2.10 in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required response to disclose on Section 3.17(a) another of the Disclosure Scheduleforegoing subsections, contracts with the customers and vendors listed on Schedule 2.15. All of the foregoing contracts and the Leases are sometimes collectively referred to herein as the “Material Contracts”. The Company has made available to Purchaser true the Buyer true, correct and complete copies of all written Material Contracts, together with all amendments, modifications or supplements thereto. The Company has made available to the Seller a written summary of each oral Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder)Contract. Each Material Contract is in full force and effect and is (i) a valid and enforceable against binding obligation of the applicable Target Company and, to the Knowledge of the Company’s Knowledge, the a valid and binding obligation of each other parties thereto in accordance with their termsparty thereto, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract and (ii) is in compliance in all material respects with the terms full force and requirements of such Material Contract effect. The Company and, to the Knowledge of the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all thereto has performed its material respects with obligations required thereunder as of the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under)date hereof. The Company has neither provided nor received is not in default under any notice material provision of any intention to terminate any Material Contract. To the Knowledge of the Company’s Knowledge, no Occurrence third party is in default under any material provision of any Material Contract. Except as set forth on Schedule 2.5, the Transactions will not afford any other party to a Material Contract the right to terminate such Material Contract. As to each Material Contract, there has not occurred any event or exists whichevents that, with notice or the lapse of time or the giving of notice or both, may give rise to, serve as a basis for, or would constitute an event a default by the Company thereunder, except as set forth on Schedule 2.5 and except for defaults that would not have a Company Material Adverse Effect. To the Knowledge of default under the Company, no party to any Material Contract has exercised or result in a threatened to exercise any termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderrights with respect thereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (TreeHouse Foods, Inc.)
Material Contracts. Schedule 4.14(a) sets forth, by reference to the applicable subsection of this Section 3.10 of the Disclosure Schedule contains a list 4.14(a), all of the following types of Contracts (and each amendment or modification thereto) to which the Company or any Target Company of the Subsidiaries is a party, party or by which such Target any of them or their respective assets of properties are bound (collectively, the “Material Contracts”): · Contracts with any Selling Stockholder or Affiliate thereof or any current or former officer, director, stockholder or Affiliate of the Company or any of the Subsidiaries; · Contracts with any labor union or association representing any employee of the Company or any of the Subsidiaries; · Contracts for the sale of any of the assets of the Company or any of the Subsidiaries other than in the Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase any of its properties assets; · Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information (excluding any general Contracts for marketing commissions or other purchasing incentive or rebate programs); · Contracts containing covenants of the Company or any of the Subsidiaries not to compete in any material line of business or with any Person in any material geographical area or not to solicit or hire any person with respect to employment or covenants of any other Person not to compete with the Company or any of the Subsidiaries in any material line of business or in any material geographical area or not to solicit or hire any person with respect to employment; · Contracts for the acquisition (by merger, purchase of stock or assets are bound, as or otherwise) by the Company or any of the date Subsidiaries of this Agreement (such Contractsany operating business or material assets or the capital stock of any other Person of which any operative provision thereof is still in effect and creates an obligation of the Company or any of the Subsidiaries; · Contracts relating to the incurrence, together assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of the Company or any Subsidiary, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the Intellectual Property Licensesacquisition of property, eachmortgages, a “Material Contract”):
(a) Other than pledge agreements, security agreements, or conditional sale or title retention agreements; · all Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made providing for payments to any third party in the twelve (12) month period prior by or to the date hereof, Company or any of the Subsidiaries in excess of $500,000; 2,000,000 in any fiscal year or (ii) received payments from any third party $5,000,000 in the twelve aggregate during the term thereof; · all Contracts obligating the Company or any of the Subsidiaries to provide or obtain products or services for a period of one year or more (12) month prior to requiring the date hereof, in excess payment of $500,000;
(b2,000,000 or more) collective bargaining agreements and or requiring the Company to purchase or sell a stated portion of its requirements or outputs; · Contracts under which the Company or any of the Subsidiaries has made advances or loans to any other contracts with any labor unions;
(c) Contracts Person (other than Benefit Plans) accounts payable arising in the Ordinary Course of Business); · Contracts providing for severance, retention, change in control or other similar payments; · Contracts, involving expected payment of $150,000 or more in any annual period, for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, time or consulting basis; · material management Contracts and Contracts with independent contractor contractors or other basis that provide annual cash compensation in excess of $150,000 per year;
consultants (d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters arrangements) that are not cancelable without penalty or further payment and without more than 30 days’ notice; and · outstanding Contracts of creditguaranty, surety or pursuant to which any Target Company has guaranteed any liabilities indemnification, direct or obligations of any of Person;
(e) indirect, by the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregateSubsidiaries. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) · Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against binding obligation of the applicable Target Company andor any Subsidiary which is party thereto, to the Company’s Knowledge, and of the other parties thereto enforceable against each of them in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the its terms and requirements of such Material Contract and, to assuming that the Company’s Knowledgeconsents or waivers (as applicable) set forth on Schedule 4.3 are obtained, each upon consummation of the transactions contemplated by this Agreement shall continue in full force and effect without penalty or other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contractadverse consequence. Neither the Company nor any Subsidiary is in default under any Material Contract, nor, to the Company’s KnowledgeKnowledge of the Company or the Selling Stockholders, is any other party thereto, is to any Material Contract in breach of or default under (thereunder, and no event has occurred that with the lapse of time or is alleged to be in the giving of notice or both would constitute a breach or default under)on the Company, any Subsidiary or any other party thereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto, and no party has given notice of any significant dispute with respect to any Material Contract. The Company has neither provided nor received any notice made available to Purchaser true, correct and complete copies of any intention to terminate any all of the Material Contract. To the Company’s KnowledgeContracts, no Occurrence has occurred together with all amendments, modifications or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereundersupplements thereto.
Appears in 1 contract
Material Contracts. Section 3.10 (a) Except for (x) any intercompany Contracts between or among any of the Sellers and their Affiliates, (y) any Contract having as its sole remaining obligations warranty or confidentiality obligations that have not expired and (z) any purchase orders or sales orders entered into in the Ordinary Course of Business with value of less than $100,000, Schedule 4.7(a) of the Seller Disclosure Schedule contains a Letter sets forth an accurate, correct and complete list of each Contract (collectively, the “Material Contracts”) relating solely or primarily to the Business, any Product, the Acquired Assets or the Assumed Liabilities, or Sellers’ operations in connection therewith of the following types types:
(i) any customer Contract providing for payments to the Sellers in excess of Contracts seven hundred fifty thousand dollars (and each amendment US$750,000) annually (calculated based on Calendar Year 2020);
(ii) any Contract that relates to the research, development, conduct of clinical trials, supply, manufacture, testing, marketing, distribution or modification theretoco-promotion of, or collaboration with respect to any Product, any active ingredient or other raw material used therein;
(iii) to which any Target Company Contract that has been entered into with any of the Business Employees;
(iv) any Contract that is a partyjoint venture, partnership, cooperative arrangement, strategic alliance or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):any other similar arrangement;
(av) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts any Contract pursuant to which any Target Company (i) made payments to of the Sellers or its Affiliates owes any third party in the twelve (12) month period prior royalties, sharing of profits, or other similar arrangement with respect to the date hereof, in excess conduct of $500,000; or (ii) received payments from the Business and/or any third party in the twelve (12) month prior to the date hereof, in excess of $500,000Product;
(bvi) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect Contract relating to the acquisition or disposition of any business, business or assets or securities, or of any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith other Person (other than sales Inventory) or any material real property (whether by merger, sale of stock, sale of assets in or otherwise) related to the ordinary course of businessBusiness (the “Previous Acquisition Agreements”);
(lvii) Contracts providing for the settlement of any material ProceedingLicensed IP Contract;
(mviii) limited liability company agreements, partnership agreements, Tax Sharing Agreements any Contract that provides for (A) “most favored nation” pricing provisions in favor of the counterparty or joint venture agreements any other clause that involve a sharing of profits, losses, costs purports to adjust pricing for products or liabilities services provided by any Target Company of the Sellers with respect to the Business based on terms made available to other customers, (B) exclusive marketing or exclusive distribution rights relating to any Product, (C) an agreement on the part of any Seller to purchase goods relating to any Product exclusively from a certain party, (D) an agreement on the part of any Seller to purchase its total requirements of any product or service from any Person or that contains “take or pay” or similar provisions, or (E) restrictions on any Seller against competing in any line of business or with any other PersonPerson in any geographical area or soliciting or hiring any Person with respect to employment;
(ix) any Contract that is with a Governmental Authority;
(x) any Contract that is a settlement agreement or consent decree;
(xi) any Contract that provides for (A) the grant of an Encumbrance on any Acquired Asset or (B) the sale of any Acquired Asset, or granted any preferential rights to purchase any Acquired Asset or Products, in each case of (A) and (B), outside the Ordinary Course of Business; or
(xii) any Shared Contract.
(nb) outstanding powers-of-attorney granted by Except for the Company for Contracts that have been entered into with any purpose whatsoever; and
(o) of the Business Employees and Shared Contracts related to capital projects and capital expenditures or as otherwise set forth in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aSchedule 4.7(b) of the Seller Disclosure ScheduleLetter, the Company has made available to Purchaser true correct and complete copies of each written Material Contract or summaries of each oral Material Contract, together with any amendments thereto, have been made available by Sellers to Buyer by posting such copies in the Data Room.
(including all modificationsc) With respect to each of the Material Contracts, amendments except as set forth in Schedule 4.7(c) of the Seller Disclosure Letter: (i) such Contract is legal, valid, binding and supplements thereto enforceable against the applicable Seller and waivers thereunder). Each Material Contract the other parties thereto, in each case, subject to the Enforceability Exceptions, and is in full force and effect and is valid and enforceable against the applicable Target Company effect; (ii) Sellers are not in, and, since January 1, 2019, have not been in, material breach or default thereunder, or otherwise been subject to any material claims thereunder, and, to the Company’s Sellers’ Knowledge, the no other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material any such Contract is in compliance in all in, or, since January 1, 2019, has been in, material respects with the terms and requirements of such Material Contract breach or default thereunder, or otherwise been subject to any material claims thereunder, and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Sellers’ Knowledge, no Occurrence event has occurred or exists which, with notice or lapse of time time, would reasonably be expected to constitute such a material breach or both, may give rise to, serve as a basis fordefault, or would constitute an event of default permit termination, modification, or acceleration, under such Contract; (iii) no Seller, or, to Sellers’ Knowledge, any Material other party to such Contract or result in a termination has repudiated any material provision thereof or would cause or permit the acceleration or and no such other changes of party has given any right or obligation or the loss Seller any written notice of any material benefit dispute with respect to such Contract or its intention to terminate or not renew any such Contract or that it wishes to discontinue any of its material obligations thereunder; (iv) Sellers have performed, in all material respects, all requirements to be performed by it under such Contract; and (v) no Seller has received any notice that it has violated, defaulted under or breached such Contract.
(d) Without limiting the generality of the foregoing Section 4.7(c), other than obligations to be performed or satisfied on or after the Closing Date pursuant to the express terms of the Previous Acquisition Agreements, to Sellers’ Knowledge, there are no outstanding Liabilities under the Previous Acquisition Agreements and the Sellers are not in breach under any agreement providing for payment of royalties or payments that are based on sales of any of the Products by the Sellers.
Appears in 1 contract
Material Contracts. Section 3.10 (a) The Company has delivered or otherwise made available to AGT true, correct and complete copies of the Disclosure Schedule contains a list of the following types of Contracts all contracts and agreements (and each amendment or modification theretoall amendments, modifications and supplements thereto and all side letters to which the Company is a party affecting the obligations of any party thereunder) to which the Company or any Target Company of its subsidiaries is a party, party or by which such Target Company or any of its properties or assets are boundbound that are material to the business, as properties or assets of the date of this Agreement Company and its subsidiaries taken as a whole, including, A-14 19 without limitation, (such ContractsI) contracts or agreements with any supplier or customer, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to in each case which any Target Company (i) made payments to any third party could result in the twelve (12) month period prior to the date hereof, payment or receipt of monies in excess of $500,0002,500,000 in any calendar year period; (II) to the extent any of the following are, individually or (ii) received payments from any third party in the twelve (12) month prior aggregate, material to the date hereofbusiness, in excess properties or assets of $500,000;the Company and its subsidiaries taken as a whole, all:
(bi) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment employment, product design or engagement of any officerdevelopment, employee or other Person on a full-time, part-timepersonal services, consulting, independent contractor non-competition, severance or other basis that provide annual cash compensation in excess of $150,000 per year;
indemnification contracts (d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000including, including without limitation, any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant contract to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in subsidiaries is a party involving employees of the Company or any line of business or geographic region with any Person, its subsidiaries); (ii) soliciting any customerslicensing, suppliers, employees merchandising or contractors of any other Person, or distribution agreements; (iii) competing with any Person;
contracts granting a right of first refusal or first negotiation; (iiv) Contracts that contain partnership or provide joint venture agreements; (v) agreements for “most favored nations” terms;
the acquisition, sale, lease or other disposition of material properties or assets of the Company or its subsidiaries or predecessors (jby merger, purchase or sale of assets or stock or otherwise) Contracts entered into since April 1, 1995 and (vi) contracts or agreements with any Governmental Authority;
Entity and (kIII) Contracts all commitments and agreements to enter into any of the foregoing items in (I) or (II) above (collectively, together with any such contracts entered into in connection accordance with any mergerSection 5.1 hereof, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business"Contracts");
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(nb) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and Contracts is valid and enforceable against in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and there is no default under any Contract so listed either by the applicable Target Company andor, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements knowledge of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, by any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, and no Occurrence event has occurred or exists which, that with notice or the lapse of time or both, may give rise to, serve as a basis for, the giving of notice or both would constitute an a default thereunder by the Company or, to the knowledge of the Company, any other party, in any such case in which such default or event would have a Material Adverse Effect on the Company.
(c) No party to any such Contract has given notice to the Company of or made a claim against the Company with respect to any breach or default under thereunder, in any such case in which such breach or default would have a Material Contract or result in a termination thereof or would cause or permit Adverse Effect on the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderCompany. Section 3.18.
Appears in 1 contract
Material Contracts. (a) Section 3.10 4.11 of the PWM Disclosure Schedule contains sets forth a complete list of each of the following types of Contracts (and each amendment or modification thereto) to which that any Target Health Forward Group Company is a partyparty to, or by which such Target Company or its to any Health Forward’s properties or assets are boundbound by (each such Contract described in clauses (i) to (xvii) below, whether or not disclosed in the Company Disclosure Schedule, is referred to as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(ai) Other any Contract relating to the issuance of any share capital or voting securities of or any other ownership interests in any Health Forward Group Company or any securities convertible, exchangeable or exercisable into any share capital or voting securities of or any other ownership interests in any Health Forward Group Company;
(ii) any Contract that involves payments (or a series of payments), contingent or otherwise, of RMB1,000,000 or more individually or in the aggregate with respect to a series of related agreements, in cash, property or services;
(iii) any Contract relating to Indebtedness with an aggregate outstanding amount as of the date hereof greater than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to RMB1,000,000 or placing of a Lien (other than a Permitted Lien) on any assets of any Health Forward Group Company;
(iv) any Contract under which any Target Health Forward Group Company (i) made payments has advanced or loaned monies to any third party in the twelve (12) month period prior other Person or otherwise agreed to the date hereofadvance, loan or invest any funds involving an amount in excess of $500,000; RMB1,000,000 individually or (ii) received payments from in any third party in the twelve (12) month prior to the date hereof, in excess series of $500,000related transaction;
(bv) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officerjoint venture contracts, employee strategic cooperation, partnership arrangements or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000agreements, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve those involving a sharing of profits, losses, costs or liabilities with any third party;
(vi) any Contract that limits, or purports to limit, the ability of any Health Forward Group Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(vii) any Contracts that contain continuing indemnification, guarantee, earn-out or other contingent payment obligations;
(viii) any Contract for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets or share capital or other equity interests of another Person, for a consideration in excess of RMB1,000,000;
(ix) any Contract with Governmental Authority;
(x) any Contracts that prohibits the payment of dividends or distributions in respect of the share capital of any Health Forward Group Company, prohibits the pledging of such share capital or prohibits the issuance of guarantees by any Target Company with any other Person.Health Forward Group Company;
(nxi) outstanding powers-of-attorney granted any Contract that will be terminated or varied upon consummation of the Transactions or a change of control of any Health Forward Group Company, will subject the consummation of the Transactions or a change of control of any Health Forward Group Company to the consent of any Person or will trigger any payment to any Person as a result of the consummation of the Transactions or a change of control of any Health Forward Group Company;
(xii) any Contract between any Health Forward Group Company, on the one hand, and any Related Person, on the other hand, other than any employment agreement relating to services as employees, officers or directors of any Health Forward Group Company;
(xiii) any Contract relating to any license or acquisition of any Intellectual Property providing for annual payments to or by any Health Forward Group Company in the Company for amount in excess of RMB1,000,000;
(xiv) any purpose whatsoeverContract involving the waiver, compromise, or settlement of any material Action;
(xv) any Contract that contains any dealer, sales representative, marketing or other similar agreement with an amount which is in excess of RMB5,000,000; and
(oxvi) Contracts related any Contract pursuant to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the which any Health Forward Group Company has made available granted a power of attorney, agency or similar authority to Purchaser a third party.
(b) A true and complete copies copy of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder)has been made available to CBPO by PWM. Each Material Contract is a legal, valid and binding obligation of Health Forward or its applicable Subsidiaries and, to the Knowledge of PWM, the other parties thereto, in full force and effect and is valid enforceable in accordance with its terms subject to the Bankruptcy and enforceable against Equity Exception. None of the applicable Target Company andHealth Forward Group Companies or, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements Knowledge of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s KnowledgePWM, any other party thereto, thereto is in breach of or default under (or is alleged to be in breach violation of, or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderrespect. The Health Forward Group Companies have not received any written claim or notice of default, amendment, modification, termination or cancellation under any such Material Contract in any material respect.
Appears in 1 contract
Sources: Share Exchange Agreement (China Biologic Products Holdings, Inc.)
Material Contracts. (a) Except as disclosed in the corresponding subsection of Section 3.10 2.11(a) of the Company Disclosure Schedule contains Schedule, the Company is not a list party to or bound by any of the following types of Contracts (and whether oral or written) (each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments any (A) lease, sublease, license or other agreement under which the Company uses or has the right or obligation to any third party use or pay rent or other fees for use thereof, now or in the twelve future, any real property (12“Real Property Leases”) month period prior to the date hereof, in excess of $500,000; or (B) lease for personal property;
(ii) received payments from any third party in the twelve (12) month prior to the date hereofpartnership, in excess of $500,000joint venture or limited liability company agreement;
(biii) collective bargaining agreements and any other contracts with agreement relating to the (A) acquisition or disposition of any labor unionsbusiness (whether by merger, sale of stock, sale of assets or otherwise) or (B) acquisition or disposition of assets outside the ordinary course of business;
(civ) Contracts (other than Benefit Plans) for any agreement relating to Indebtedness of the employment Company or engagement Indebtedness of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearto the Company;
(dv) Contracts evidencing Indebtedness any agreement that limits the freedom of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant Company to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging compete in any line of business business, in any market or geographic region with any Person, (ii) soliciting any customers, suppliers, employees customer segment or contractors of any other Person, or (iii) competing with any Person;
(ivi) Contracts that contain any contract or provide other agreement with any current or former officer, director, employee, consultant, agent or other representative or any agreement or understanding pursuant to which the Company may be liable for “most favored nations” termsany severance or termination pay or obligations;
(jvii) Contracts with any Governmental Authoritycontracts or other agreements for the sale of any of its assets or properties other than in the ordinary course of business or the grant to any Person of any preferential rights to purchase any of the assets or properties of the Company;
(kviii) Contracts entered into in connection any outstanding contracts or agreements with any mergerGovernment Agency;
(ix) any agreement for the purchase of materials, consolidation software, supplies, goods, services, equipment or other business combinationassets;
(x) any agreement (A) providing for the sale by the Company of materials, supplies, goods, services, equipment and involving more than $10,000, or with respect (B) which will result in any loss to the acquisition Company upon completion of performance thereof, nor are there any outstanding bids or disposition proposals that will not result in a normal profit;
(xi) any option to license, license (including software licenses, other than licenses for Off-the-Shelf Software with aggregate license fees of under $5,000) or franchise agreement;
(xii) any businesscommission, assets agency, dealer, sales representative or securities, marketing agreement;
(xiii) any agreement containing any right of first refusal or right of first negotiation;
(xiv) any equity agreement pursuant to which the Company is subject to confidentiality or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith obligations;
(xv) any agreement under which the Company agrees to indemnify any party other than sales of assets in the ordinary course of business), or in which the Company agrees to indemnify any Person for consequential or incidental damages or lost profits;
(lxvi) Contracts providing for the settlement of any material Proceedingcontract or agreement to provide goods or services to any Person on a preferential or most-favored basis;
(mxvii) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target agreement which encumbers any Company with any other Person.Intellectual Property Rights;
(nxviii) any outstanding powers-of-attorney granted by proposal related to the Company for any purpose whatsoeverCompany’s business; and
(oxix) Contracts any other agreement or series of related to capital projects and capital expenditures in excess of $100,000 agreements, which, individually or $250,000 in the aggregate. Other than , is material to the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aCompany.
(b) of the Disclosure Schedule, the Company has made available to Purchaser true True and complete copies of all Material Contracts, in each Material Contract (including all modificationscase as amended to date, amendments and supplements thereto and waivers thereunder)have been made available to Parent on the Company Data Site. Each Material Contract constitutes a valid and binding obligation of the Company and is in full force and effect and in all material respects. Each Material Contract is valid and enforceable against the applicable Target Company Company, as applicable, and, to the Company’s Knowledge, the other parties thereto in accordance with their its terms, subject to general equitable principles (regardless of whether such enforceability is considered in a proceeding at equity or at Law), and except to the extent enforcement as enforceability thereof may be affected limited by Enforceability Exceptionsapplicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application relating to creditors’ rights. Each Target The Company that is a party to a not in default under or breach of any Material Contract is in compliance in all material respects with the terms Contract, and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of Knowledge no event or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence circumstance has occurred or exists whichthat, with notice or lapse of time or both, may would (i) constitute any default or breach thereunder, (ii) impair or alter the rights of the Company or any third party, (iii) give rise toto a right of termination, serve as a basis forcancellation, amendment or acceleration, or would constitute an event (iv) result in the creation or imposition of any Lien on any assets or properties of the Company.
(c) To the Company’s Knowledge, no Person intends to terminate (whether for cause or convenience) or default under any Material Contract or result before the expiration of its stated term, if any, and, no Person intends not to renew such contract, if renewable by its terms. Except as set forth in a termination thereof or would cause or permit Section 2.11(c) of the acceleration or other changes Company Disclosure Schedule, to the Company’s Knowledge, no Claim for non-performance of any right Material Contract is pending or obligation threatened. There are no pending renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable under any Material Contract, and no Person has requested any such renegotiation. Except as separately identified in Section 2.5 of the loss Company Disclosure Schedule, no approval or consent of any material benefit thereunderPerson is needed in order that the Material Contracts continue in full force and effect following the consummation of the Transactions.
Appears in 1 contract
Material Contracts. Section 3.10 of the Disclosure 3.19.1 Schedule contains a list 3.19 sets forth all of the following types of Contracts contracts (and each amendment "MATERIAL CONTRACTS"), written or modification thereto) oral, to which any Target Company Seller is a party, party or by or to which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other may be bound or subject other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to contracts which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, do not involve an obligation in excess of $500,00050,000 in a calendar year: (i) contracts with any current or former officer, director, stockholder, employee, consultant, agent or other representative or with any entity in which any of the foregoing is a controlling person; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
union or association representing any employee; (ciii) Contracts contracts with any Person to sell, distribute or otherwise market any of Seller's Products and Services; (other than Benefit Plansiv) contracts with any Person for the employment manufacture or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations supply of any of Person;
Seller's products; (ev) contracts for the Leases;
sale of any properties other than in the ordinary course of business or for the grant to any Person of any option or preferential rights to purchase any properties; (fvi) Contracts partnership or joint venture agreements; (vii) contracts under which Seller agrees to indemnify any party or to share any liability of any party; (viii) contracts which cannot be cancelled without liability, premium or penalty payable by Seller or which can be canceled without liability, premium or penalty only on more than 30 days' notice; (ix) contracts with Material Suppliers;
customers, distributors or suppliers for the sharing of fees, the rebating of charges or other similar arrangements; (gx) Contracts with Material Customers;
(h) Contracts contracts containing any covenant covenants of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging Seller not to compete in any line of business or geographic region with any Person, Person in any geographical area or covenants of any other Person not to compete with Seller in any line of business or in any geographical area; (iixi) soliciting contracts relating to the acquisition by Seller of any customers, suppliers, employees operating business or contractors the capital stock of any other Person, ; (xii) contracts requiring the payment to any person of an override or similar commission or fee; (iiixiii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect contracts relating to the acquisition borrowing of money; (xiv) contracts containing obligations or disposition liabilities of any business, assets kind to the Shareholder; (xv) contracts or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing options for the settlement purchase of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company property for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures an aggregate purchase price in excess of $100,000 individually 50,000; (xvi) management or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aemployment contracts and other similar agreements with any Person; (xvii) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, contracts pursuant to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that terms of which there is either a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of current or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or future obligation or the loss right of any material benefit thereunder.Seller to make payments in excess of $50,000 or receive payments in excess of $50,000;
Appears in 1 contract
Material Contracts. Section 3.10 of To the Disclosure extent not set forth in an exhibit list to a report filed by the Company with the SEC since January 1, 2020, Schedule contains a list 3.9 lists each of the following types Contracts in effect as of Contracts (and each amendment or modification thereto) the Execution Date to which any Target the Company is a party, or by which such Target Company or its properties or assets party that are bound, as of material to the date of this Agreement Business (such Contracts, together with the Intellectual Property Licenses, each, each a “Material Contract”):
(ai) Other than all consulting, manufacturing and product testing Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company independent contractors or consultants (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or similar arrangements);
(ii) received payments from any third party in all Contracts with employees of the twelve (12) month prior Company, other than Contracts evidencing awards issued to employees under the date hereof, in excess of $500,000Company’s equity incentive plans;
(biii) collective bargaining agreements and each Contract for the sale of any of the assets of the Company used in the Business other contracts with than in the Ordinary Course or for the grant to any labor unionsPerson of any preferential right to purchase any of the Company’s assets used in the Business;
(civ) Contracts (other than Benefit Plans) each Contract that provides for any joint venture, strategic alliance, partnership, sharing of profits or similar arrangement by or involving the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearBusiness;
(dv) Contracts evidencing Indebtedness each Contract containing covenants of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant Company not to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging compete in any line of business or with any Person in any geographical area or not to solicit or hire any Person with respect to employment;
(vi) each Contract relating to the acquisition or disposition (by merger, purchase of stock or assets or otherwise) by the Company of any business, equity or assets (including any real property) of or to any other Person;
(vii) each Contract relating to the incurrence, assumption or guarantee of any indebtedness or imposing a Lien on any Purchased Assets, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements (other than Permitted Liens);
(viii) each Contract involving aggregate consideration payable to the Company by any other Person in excess of $50,000 per year;
(ix) each Contract providing for the exclusive right to distribute products of the Company in any geographic region or distribution channel;
(x) each Contract pursuant to which the Company may be obligated to pay for goods and services to be delivered or performed in excess of $50,000 per year, other than Contracts with professional service providers, including tax advisors, accountants and legal advisors;
(xi) each Contract involving any Personlease by the Company (as lessor or lessee) of any real or personal property;
(xii) each Contract under which the Company has made advances or loans to any officer, director, employee, Affiliate of the Company or any other Person (iiother than the advancement of reimbursable business expenses in the Ordinary Course);
(xiii) soliciting each Contract under which the Company has made any customersguaranty, supplierssurety or indemnification, employees direct or contractors indirect, of any material obligation of any officer, director, employee or Affiliate of the Company or of any other Person;
(xiv) each Contract that requires the Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(xv) each Contract that provides for the assumption of any Tax, environmental or (iii) competing with other material Liability of any Person;
(ixvi) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting, and advertising Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect related to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverBusiness; and
(oxvii) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses any other Contract that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, material to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected Business and not covered by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms Section 3.9(i) through and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default underincluding Section 3.9(xvi). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 1 contract
Material Contracts. (a) Section 3.10 5.15(a) of the Company Disclosure Schedule contains sets forth a correct and complete list of all of the following types of Contracts (and each amendment or modification thereto) to which any Target the Company is a party, party or by which such Target the Company or its properties or assets are bound, as any of the date assets or properties of this Agreement the Company is bound (such Contractscollectively, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and Contracts with Material Customersany current or former officer, Contracts pursuant to which director, equityholder or Affiliate of the Company or any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or Investment Entity;
(ii) received payments from Contracts for the sale or disposition of any third party of the assets of the Company any Investment Entity other than in the twelve (12) month prior Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase any of the date hereof, in excess assets of $500,000the Company;
(biii) collective bargaining agreements and any Contracts containing change of control or similar provisions or providing for severance, retention, change in control or other contracts with any labor unionssimilar payments;
(civ) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information;
(v) Contracts containing covenants of the Company any Investment Entity not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment;
(vi) Contracts containing any most-favored nations undertakings, rights of first refusal, price protection mechanisms or any other than Benefit Planssimilar provisions restricting the business of the Company;
(vii) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any Investment Entity of any operating business or material assets or the capital stock or equity of any other Person;
(viii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of the Company or any Investment Entity, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(ix) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide annual cash compensation in excess of $150,000 per yearbasis;
(dx) Contracts evidencing Indebtedness with independent contractors or consultants (or similar arrangements) that are not cancelable without penalty or further payment and without more than thirty (30) days’ notice;
(xi) Contracts providing for indemnification, direct or indirect, by the Company or any Investment Entity;
(xii) Contracts (or group of related Contracts) which involve the Target Companies expenditure of more than $25,000 annually or $50,000 in excess the aggregate or require performance by any party more than one (1) year from the date hereof and that are not cancelable by the Company or any Investment Entity without penalty or further payment and without more than ninety (90) days’ notice;
(xiii) Contracts for which the principal purpose is the licensing of $50,000any Intellectual Property by or to the Company or any Investment Entity;
(xiv) Contracts or plans regarding rights to or the issuance of any equity interest in the Company or any other profit-sharing plan, including any loan stock option plan, stock appreciation rights plan, phantom stock plan or credit agreements, promissory notes, security agreements, pledge agreements, mortgagesstock purchase plan or any other Contract any of the benefits of which will be increased, or similar letters the vesting of creditbenefits of which will be accelerated, or pursuant to which any Target Company has guaranteed any liabilities or obligations by the occurrence of any of Personthe transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(exv) the LeasesLease Agreements;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(jxvi) Contracts with any Governmental AuthorityEntity;
(kxvii) Contracts entered into in connection related to the compromise or settlement of any litigation or arbitration or other proceeding;
(xviii) Contracts with any merger, consolidation labor union or other business combination, or any collective bargaining agreement;
(xix) Contracts involving any outstanding powers of attorney executed on behalf of the Company;
(xx) Contracts with respect to the acquisition or disposition of any businessIntellectual Property Rights, assets or securitiesincluding any in-bound licenses, or any equity or debt investment in or any loan to any Person; providedout-bound licenses and cross-licenses, that the foregoing shall not apply to but excluding (i) non-disclosure agreements entered into in connection therewith the Ordinary Course of Business that do not include explicit licenses to Intellectual Property Rights; (other than sales of assets ii) non-exclusive inbound licenses for commercially available non-custom software that (1) is not incorporated into, linked with, or distributed in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company conjunction with any other Person.
Company products, and (n2) outstanding powers-of-attorney granted by is made generally available on standard terms involving annual payments from the Company for any purpose whatsoeverof less than $2,500; or (iii) Company’s written agreements with its customers that have been entered into on Company’s standard form customer agreement previously made available to Purchaser without material deviation therefrom; and
(oxxi) any other Contracts related to capital projects and capital expenditures in excess of that involve (i) $100,000 25,000 individually or $250,000 50,000 in the aggregate. Other than aggregate or more and is not cancelable by the Intellectual Property Licenses that Company or any Investment Entity without penalty within thirty (30) days, (ii) minimum purchase commitments by the Company or any Investment Entity, or (iii) ongoing service or support obligations and are not cancelable without penalty or refund within thirty (30) days.
(b) Section 5.15(b) of the Company Disclosure Schedule sets forth a correct and complete list of (i) all of the Contracts to which the Company is not required to disclose on Section 3.17(aa party that can be cancelled by the Company or any Investment Entity within ninety (90) days, including any penalty associated with such cancellation and (ii) all of the Disclosure Schedule, Contracts to which the Company has made available or any Investment Entity is a party that can be cancelled by a third party to Purchaser true any such Contract within ninety (90) days, whether as a result of the Acquisition or otherwise.
(c) True and complete copies of each Material Contract have been made available to Purchaser. Except as disclosed in Section 5.15(c) of the Company Disclosure Schedule: (including all modificationsi) neither the Company nor any Investment Entity has breached, amendments and supplements thereto and waivers thereunder). Each violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract, nor is the Company aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both; (ii) to the Knowledge of the Company, no other party to any Material Contract is in default thereunder; (iii) each Material Contract is a legal, valid and binding obligation of the Company and is in full force and effect effect; (iv) the consummation of the Acquisition will neither violate nor result in the breach, modification, cancellation, termination or suspension of any Material Contract; (v) the consummation of the Acquisition will not require the consent of any third party to a Material Contract; (vi) following the Closing, both Purchaser and is valid and enforceable against the Company (or the applicable Target Company and, Investment Entity) will be permitted to exercise all of the Company’s Knowledge, (or such Investment Entity’s) rights under the other parties thereto in accordance with their terms, except Material Contracts to the same extent enforcement may as though the Acquisition had not occurred and without being required to pay any additional amounts or consideration other than fees, royalties or payments that the Company (or such Investment Entity) would otherwise be affected by Enforceability Exceptions. Each Target required to pay had such Acquisition not occurred; (vii) none of the Material Contracts is with any Seller, manager, officer, or employee of the Company that is a or Investment Entity, or with any family member thereof; and (viii) there exists no condition or state of facts or circumstances involving any third party to a Material Contract that could reasonably be expected to constitute, in the aggregate, a Material Adverse Effect. There are no Material Contracts between the Company or any Investment Entity and any other Person under which there is in compliance in all material respects any dispute regarding the scope of such agreement, or performance under such agreement including with respect to any payments to be made or received by the terms and requirements Company thereunder. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements Company or any Investment Entity or reducing the volume of business such Material Contract. Neither party conducts with the Company noror any Investment Entity, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve whether as a basis for, result of the transactions contemplated hereby or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderotherwise.
Appears in 1 contract
Material Contracts. (a) Schedule 4.14 sets forth, by reference to the applicable subsection of this Section 3.10 of the Disclosure Schedule contains a list 4.14, all of the following types Contracts that are written, and to the Knowledge of Contracts (and each amendment or modification thereto) the Company, that are oral, to which any Target the Company is a party, party or by which such Target Company or its properties or assets are bound, as any of the date of this Agreement Company’s assets or properties are bound (such Contractscollectively, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments any Contract with Shareholder or an Affiliate of Shareholder or any current or former officer, director, shareholder or Affiliate of the Company;
(ii) any Contract with any labor union or association representing any employee of the Company;
(iii) any Contract for the sale of any of the assets of the Company other than in the Ordinary Course of Business or for the grant to any third party Person of any preferential rights to purchase any of its assets;
(iv) any Contract for joint ventures, strategic alliances, partnerships, licensing arrangements or franchise agreements, sharing of profits or proprietary information;
(v) any Contract containing covenants of the Company not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment or covenants of any other Person not to compete with the twelve Company in any line of business or in any geographical area or not to solicit or hire any person with respect to employment;
(12vi) month period prior any Contract relating to the date hereofacquisition or disposition (by merger, purchase of stock or assets or otherwise) by the Company of any operating business or material assets or the capital stock of any other Person;
(vii) any Contract relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of the Company, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements or conditional sale or title retention agreements;
(viii) any Contract providing for payments by or to the Company in excess of $500,000; 10,000 in any fiscal year or (ii) received payments from any third party $50,000 in the twelve aggregate during the term thereof;
(12ix) month prior any Contract requiring the Company to the date hereof, purchase or sell goods or services; (A) with firm commitments having a value in excess of $500,00010,000 or (B) having a term which is greater than six (6) months and which is not terminable by the Company on less than ninety (90) days’ notice without the payment of any termination fee or similar payment;
(bx) collective bargaining agreements and any Contract under which the Company has made advances or loans to any other contracts with Person in excess of $10,000 in any labor unionsfiscal year or $50,000 in the aggregate during the term thereof, except advances to employees for training, travel and business expenses in the Ordinary Course of Business;
(cxi) Contracts any Contract providing for severance, retention, change in control or other similar payments;
(other than Benefit Plansxii) any Contract for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide basis, except if such individual’s base annual cash compensation is less than $100,000;
(xiii) any Contract relating to the advertising, marketing or promotion of the business of the Company, which individually requires the Company to spend in excess of $150,000 25,000 per yearannum;
(dxiv) Contracts evidencing Indebtedness any agreements providing for the indemnification by the Company of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(ixv) Contracts that contain any confidentiality agreements entered into by the Company during the period commencing two (2) years prior to the date hereof pursuant to which confidential information has been provided to a third party or provide for “most favored nations” termsby which the Company was restricted from providing information to third parties;
(jxvi) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with Contract providing for any mergerrebates, consolidation allowances or other business combination, discounts to customers or with respect from suppliers to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverCompany; and
(oxvii) Contracts related to capital projects and capital expenditures in excess of $100,000 individually all other agreements, contracts or $250,000 commitments not made in the aggregate. Other than Ordinary Course of Business which are material to the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aCompany.
(b) Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against binding obligation of the applicable Target Company and, to the Knowledge of the Company’s Knowledge, of the other parties thereto enforceable against each of them in accordance with their termsits terms and, upon consummation of the transactions contemplated by this Agreement, shall, except as otherwise stated in Schedule 4.14, continue in full force and effect without penalty or other adverse consequence, with such exceptions as would not, individually or in the aggregate, reasonably be expected to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to have a Material Contract Adverse Effect. The Company is not in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such default under any Material Contract. Neither the Company , nor, to the Knowledge of the Company’s Knowledge, is any other party thereto, is to any Material Contract in breach of or default under (thereunder, with such exceptions as would not, individually or is alleged in the aggregate, reasonably be expected to be have a Material Adverse Effect. Except as stated in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s KnowledgeSchedule 4.14, no Occurrence event has occurred or circumstance exists whichthat (with or without notice, with notice or lapse of time or both, may give rise to, serve as ) would (i) constitute a basis for, material breach or would constitute an event default of default the Company or to the Knowledge of the Company any other party under any a Material Contract or result in a termination thereof (ii) permit termination, cancellation, acceleration, suspension or would cause or permit the acceleration or other changes modification of any right or obligation or the loss of any material benefit thereunderunder, result in any payment becoming due under, result in the imposition of any Liens on the assets or securities of the Company, or otherwise give rise to any right on the part of any Person to exercise any remedy or obtain any relief under, a Material Contract. No party to any of the Material Contracts has exercised any termination rights with respect thereto, and no party has given written notice of any significant dispute with respect to any Material Contract. The Company has made available or delivered to Parent true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto. Except for the Material Contracts set forth in Schedule 4.14 the Company is not a party to any other Material Contract.
Appears in 1 contract
Material Contracts. (a) Section 3.10 4.08(a) of the Disclosure Schedule contains a list Schedules lists each of the following types of Contracts (and each amendment or modification thereto) to by which any Target Company is a partythe Company, or by which such Target Company any of the Subsidiaries, or any of the Company’s or its properties or Subsidiaries’ assets are bound, as of the date of this Agreement bound (such Contracts, together with the all Contracts relating to Intellectual Property Licensesset forth in Section 4.12(b) of the Disclosure Schedules, each, a being “Material ContractContracts”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to all Contracts involving any third party in the twelve (12) month period prior to the date hereof, in excess capital expenditures or series of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies related capital expenditures in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(eii) all Contracts that provide for the Leasesindemnification by the Company or any Subsidiary of any Person, other than in the ordinary course of business, or the assumption of any (A) Tax Liability, (B) environmental Liability or (C) other Liability of any Person, solely with respect to clause (C), other than in the ordinary course of business;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) all Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect relate to the acquisition or disposition of any business, a material amount of equity or assets of any other Person (whether by merger, sale of stock, sale of assets or securitiesotherwise) pursuant to which the Company or any Subsidiary has any continuing obligations, or any equity continuing indemnification, “earn-out” or debt investment in other liabilities (fixed, contingent or otherwise);
(iv) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting, and public relations and advertising Contracts that provide for payment or receipt by the Company or any loan Subsidiary in connection with the Business in excess of $100,000 on an annual basis;
(v) all Contracts with (A) managers, directors, officers or employees or (B) independent contractors or consultants that, solely with respect to clause (B), provide for payments in excess of $50,000 individually;
(vi) all Contracts relating to indebtedness or the granting of security for indebtedness, and all guaranties;
(vii) all Contracts with any Governmental Authority;
(viii) all Contracts that limit or purport to limit the ability of the Company or any Subsidiary, to compete or engage in any line of business or with any Person or in any geographic area or during any period of time;
(ix) all joint venture, partnership or similar Contracts;
(x) all Contracts for the sale of assets (excluding Inventory, but including any master agreements, regarding Inventory, with customers whose purchases of Inventory were at least $50,000 for the twelve (12) months prior to the Option Exercise Date) of the Company or any Subsidiary involving the receipt by the Company or any Subsidiary or for the grant to any Person; providedPerson of any option, that right of first refusal or preferential or similar right to purchase any assets (excluding Inventory, but including any master agreements, regarding Inventory, with customers whose purchases of Inventory were at least $50,000 for the foregoing shall not apply twelve (12) months prior to non-disclosure agreements entered into the Option Exercise Date) of the Company or any Subsidiary, in connection therewith (each case other than sales of assets in the ordinary course of business;
(xi) all powers of attorney;
(xii) all collective bargaining agreements or Contracts with any Union;
(xiii) all Contracts for the purchase or lease of real estate;
(xiv) all Contracts for the acquisition of services, supplies, equipment, Inventory, or other personal property individually involving more than $50,000, other than purchase orders for Inventory in the ordinary course of business (but including any master agreements, regarding Inventory, with customers whose purchases of Inventory were at least $50,000 for the twelve (12) months prior to the Option Exercise Date);
(lxv) all Contracts providing for with a member or other equity holder of the Company or any Subsidiary, or any Affiliate of the Company or Subsidiary;
(xvi) all Contracts that relate to the settlement of any Action that occurred during the three (3) years prior to the Option Exercise Date or involve any material Proceedingcontinuing obligations;
(mxvii) limited liability company agreementsall Contracts with respect to the return of Inventory in the possession of customers by reason of alleged overshipment, partnership agreements, Tax Sharing Agreements defective merchandise or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Personotherwise where the customer has requested such return but the return has not yet been fulfilled.
(nb) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is valid and binding on the Company or the applicable Subsidiary in accordance with its terms and is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contracteffect. Neither the Company nornor any Subsidiary or, to the Company’s Sellers’ Knowledge, any other party thereto, thereto is in breach of or default under (or is alleged to be in breach of or default under). The Company , or has neither provided nor or received any notice of any intention to terminate terminate, any Material Contract, except for such breaches or defaults that would not be material to such Material Contract. To the Company’s Knowledge, no Occurrence No event or circumstance has occurred or exists whichthat, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder, except for such defaults, events or circumstances that would not constitute a material default under any such Material Contract. Complete and correct copies of each Material Contract (including all modifications, and supplements thereto and waivers thereunder) have been made available to Buyer by Sellers. There are no material disputes pending, or to Sellers’ Knowledge, threatened, under any Material Contract.
Appears in 1 contract
Sources: Unit Purchase Agreement (Twinlab Consolidated Holdings, Inc.)
Material Contracts. All of the following Contracts to which the Company or any of its Subsidiaries is a party or by which any of them or their respective assets or properties are bound are set forth in Section 3.10 4.9 of the Disclosure Schedule contains a list by reference to the applicable subsection below (such Contracts listed or required to be listed in Section 4.11 of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a partyDisclosure Schedule, or by which such Target Company or its properties or assets are boundcollectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(a) Other than any Contract or series of related Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to the same counterparty or its Affiliates which requires aggregate future expenditures by the Company or any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, of its Subsidiaries in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,00025,000;
(b) collective bargaining agreements and any other contracts Contract with any labor unions(i) a Material Customer or (ii) a Material Supplier;
(c) Contracts any Contract required to be disclosed in Section 4.23 of the Disclosure Schedule;
(other than Benefit Plansd) any Contract for the employment of, or engagement receipt of any officerservices from, employee (i) any director or officer of the Company or its Subsidiaries or (ii) any other individual Person on a full-time, part-time, consulting, independent contractor consulting or other basis that provide providing for aggregate annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person75,000;
(e) Contracts providing for severance, retention, change in control or other similar payments; any “success fees” or bonuses, or severance payments payable to employees of the LeasesCompany 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);
(f) Contracts with Material Suppliers;each Real Property Lease
(g) Contracts with Material Customersany 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;
(h) Contracts containing any covenant Contract for the disposition of a Target Company that restricts a Target Company any of the Company’s or any of its Affiliates from Subsidiary’s assets or business (i) engaging in any line whether by merger, sale of business stock, sale of assets or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Personotherwise);
(i) Contracts that contain or provide any Contract for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to 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 securitiesotherwise) (including, for the avoidance of doubt, Contracts containing continuing indemnification or contingent payment obligations);
(j) any Contract concerning a partnership, joint venture, joint development or other similar arrangement with one or more Persons;
(k) any Contract with a customer of the Company or any equity or debt investment in or any loan to any Person; provided, of its Subsidiaries that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith deviates (other than sales with respect to prices, payment amounts or delivery schedules) in any material respect from the Company’s standard form of assets in the ordinary course of business)customer Contract Made Available to Parent;
(l) Contracts providing for any Contract that grants or obtains or agrees to grant or obtain rights to use or register IP or IP Rights (whether granted by or to the settlement Company or any of any material Proceedingits Subsidiaries), excluding ordinary-course licenses to off-the-shelf software;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements any Contract under which the Company or joint venture agreements that involve a sharing any of profits, losses, costs its Subsidiaries is restricted from carrying on any business or liabilities by any Target Company other services or competing with any other Person.Person anywhere in the world, or restricted from soliciting or hiring any Person with respect to employment, or which would so restrict the Surviving Corporation, Parent or any successor in interest thereof after the Closing Date;
(n) outstanding powers-of-attorney granted by any Contract which (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 exclusive license, supply, distribution or other rights in connection with any product or technology of the Company for or any purpose whatsoeverof its Subsidiaries or (iii) rights of first refusal, rights of first negotiation or similar rights; andor
(o) Contracts related any other Contract to capital projects and capital expenditures the extent not otherwise disclosed in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) 4.9 of the Disclosure Schedule, Schedule that is material to the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder)or its Subsidiaries. Each Material Contract is in full force and effect effect, and is the legal, valid and enforceable against binding obligation of the applicable Target Company or any of its Subsidiaries which is party thereto, and, to the knowledge of the Company’s Knowledge, of the other parties thereto enforceable against each of them in accordance with their its terms, except to the extent enforcement as enforceability may be affected by the Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company’s Knowledge, any other party thereto, thereto is in violation, default or breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice the terms of any intention to terminate any of the Material Contract. To the Company’s Knowledge, Contracts and no Occurrence has occurred or condition exists whichthat, with notice or lapse of time or both, may would constitute such a violation, default or breach, 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 toto any default or breach of a Material Contract. No party to any of the Material Contracts has exercised any termination rights with respect thereto, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes and no party has given notice of any right 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, together with all amendments, modifications or obligation or the loss of any material benefit thereundersupplements thereto.
Appears in 1 contract
Material Contracts. Section 3.10 of (a) Set forth in the Xando Disclosure Schedule contains Letter is a list of all of the following types Contracts, other than purchase orders in the ordinary course of Contracts (and each amendment or modification thereto) business to which any Target Company Xando or a Subsidiary thereof is a party, party or by which such Target Company or to which Xando's or one of its Subsidiary's assets or properties are bound or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):subject:
(a1) Other than Contracts with Material Suppliers and any current or former officer, director, employee or consultant (other than at will employment arrangements);
(2) Contracts with Material Customersany labor union or association representing any employee of Xando or Subsidiary thereof;
(3) Contracts for the purchase or sale of materials, Contracts pursuant to supplies, equipment or merchandise, or the furnishings or receipt of services, which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, are not cancelable upon notice of one year or less and which involve consideration in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,00025,000;
(b4) collective bargaining agreements and Contracts for the sale of any material assets or properties of Xando or a Subsidiary thereof other contracts with any labor unionsthan in the ordinary course of business;
(c5) Joint venture or partnership agreements;
(6) Franchise, distribution or sales agency agreements or Contracts with any food brokers;
(7) Contracts under which Xando or a Subsidiary thereof agrees to indemnify any party (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure leases and supply and service agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) 8) Contracts providing with customers or suppliers for the settlement sharing of any material Proceedingfees, the rebating of charges or other similar arrangements;
(m9) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs Contracts containing obligations or liabilities of any kind to holders of Xando's or any of its Subsidiaries' securities as such;
(10) Contracts containing covenants not to compete in any line of business or with any Person in any geographical area or covenants of any other Person not to compete with Xando or any Subsidiary thereof in any line of business or in any geographical area;
(11) Contracts relating to the acquisition by Xando or any Target Company with Subsidiary thereof of any operating business or the capital stock of any other Person;
(12) Options for the purchase of any asset (tangible or intangible), for an aggregate purchase price of more than $25,000;
(13) Contracts requiring the payment to any person of any override or similar commission or fee;
(14) Contracts for the borrowing of money;
(15) Any other Contact not made in the ordinary course of business that is material to Xando and its Subsidiaries taken as a whole; or
(16) Any agreement or undertaking to enter into any of the foregoing.
(nb) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company Xando has made available to Purchaser true Cosi a correct and complete copies copy of each Material written Contract listed in the Xando Disclosure Letter. With respect to each such Contract:
(including all modifications1) The Contract is legal, amendments valid, binding and supplements enforceable against Xando or its Subsidiary that is party thereto and, to Xando's knowledge, the other party or parties thereto, subject to applicable bankruptcy, insolvency and waivers thereunder). Each Material Contract similar laws in effect from time to time relating to or affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and, to Xando's knowledge, is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements effect;
(2) Neither Xando nor any of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company its Subsidiaries nor, to the Company’s Knowledgeknowledge of Xando, any other party theretoto the Contact, is in breach of or default under (or is alleged to be in material breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledgedefault, and no Occurrence event has occurred or exists which, with the giving of notice or lapse of time would constitute a material breach or bothdefault by Xando or any of its Subsidiaries, may give rise toor, serve as a basis forto the knowledge of Xando, by any other party, or would constitute an event permit termination or acceleration of default under any Material Contract or result in a termination the term thereof or would cause amounts payable by Xando or permit the acceleration any of its Subsidiaries or any other changes such party thereunder; and
(3) Neither Xando nor any of any right or obligation or the loss of its Subsidiaries has repudiated in writing any material benefit thereunderprovision of the Contract.
Appears in 1 contract
Sources: Merger Agreement (Cosi Inc)
Material Contracts. 3. Section 3.10 3.11(a) of the Sellers Disclosure Schedule contains sets forth a complete and accurate list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a partyparty or is bound or which are included in the Tiger’s Milk Contribution, or by which such Target Company or its properties or assets in each case that fall within the following categories and that are bound, in force as of the date of this Agreement hereof (such Contractscollectively, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party lease or sublease of real property (whether as lessor or lessee);
(ii) other than purchase orders issued in the twelve ordinary course of business, any Contract for the purchase of services, equipment or other assets providing for either (12%5) month period prior to payments by the date hereof, in excess Business or the Companies of $500,000500,000 or more in any calendar year; or (ii%5) received payments from give rise to anticipated receipts by the Business or the Companies of more than $500,000 in any third party in the twelve (12) month prior to the date hereofcalendar year, in excess each case that cannot be terminated on not more than 90 days’ notice without payment by the Business or the Companies of $500,000any material penalty;
(biii) collective bargaining agreements and any material partnership, joint venture or other contracts with any labor unionssimilar Contract;
(civ) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect Contract relating to the acquisition or disposition of any businessbusiness (whether by merger, sale of stock, sale of assets or securitiesotherwise) not yet consummated or pursuant to which the Business or a Company has material continuing obligations following the date of this Agreement;
(v) any Contract relating to the creation, incurrence, assumption or guarantee of Indebtedness other than any such arrangements exclusively between one or more Companies;
(vi) any Contract containing covenants expressly limiting in any material respect the freedom of the Business or any Company to compete with any Person in a product line or line of business or operate in any jurisdiction;
(vii) any sales, distribution or other similar Contract providing for the sale by the Business or the Companies of materials, supplies, goods, services, equipment or other assets that provides for annual payments to the Business or the Companies of $500,000 or more;
(viii) any co-packing or co-manufacturing Contract or other Contract providing for the manufacture or production of any Products by a third party that provides for annual payments by the Business or the Companies of $500,000 or more;
(ix) any material Contract relating to any swap, forward, futures, warrant, option or other derivative transaction;
(x) any material option, license, franchise or similar Contract;
(xi) any material agency, dealer, sales representative, marketing or other similar Contract;
(xii) any employment, independent contractor, severance, retention, change in control or similar Contract with any current or former director, employee or officer of any Company in respect of which any Company has ongoing payment obligations;
(xiii) any labor agreement, collective bargaining agreement or other labor-related agreement or agreements with any labor union, labor organization or works council representing any Business Employee;
(xiv) any Contract that contains a material exclusivity, requirements, “take or pay” (pursuant to which the Companies would reasonably be expected to be subject to material exposure to pay for products or services beyond the reasonably anticipated needs of the Business when taking into account historical volumes purchased and required under such Contract) or similar provision binding on the Business or any Company;
(xv) any Contract containing “most favored nation” provisions or other preferential pricing or terms;
(xvi) any Contract with a Governmental Authority;
(xvii) any Contract pursuant to which the Business or any Company grants or is granted a license or right to use, or covenant not to be sued under, any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith Intellectual Property Rights (other than sales (A) licenses for commercially available software that are generally available on nondiscriminatory pricing terms which have an aggregate annual cost of assets $250,000 or less); or (B) non-exclusive licenses granted to customers of the Business in the ordinary course of business);
(lxviii) Contracts providing for any Contract between a Company, on the settlement one hand, and any Seller or any of any material Proceedingits Affiliates, on the other hand;
(mxix) limited liability company agreements, partnership agreements, Tax Sharing Agreements any Contract relating to the settlement or joint venture agreements resolution of a Legal Proceeding that would (i) impose material obligations or limitations on the operations of the Business after the Closing or (ii) the form of which would involve a sharing the payment of profits, losses, costs more than $250,000 by the Companies or liabilities by any Target Company with any other Person.the Business after the date hereof; or
(nxx) outstanding powers-of-attorney granted by any Contract committing the Company for any purpose whatsoever; and
(o) Contracts related Business to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in 1,000,000 after the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderdate hereof.
Appears in 1 contract
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains 3.8(a) sets forth a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are boundlist, as of the date of this Agreement (such ContractsAgreement, together with of each of the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than following types of Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from Subsidiaries is a party and which remain in effect:
(i) engaging Contracts material to the conduct and operations of its business and its properties;
(ii) Contracts containing covenants not to (or otherwise restricting or limiting the Company’s ability to) compete in any line of business or geographic region geographical area (including any covenant not to compete with respect to the manufacture, marketing, distribution or sale of any product or product line), solicit any customer of any Person, (ii) soliciting solicit or hire any customers18 employee, suppliers, employees consultant or contractors independent contractor of any Person or transact business or deal in any other Person, or (iii) competing manner with any other Person;
(iiii) Contracts that contain involving a joint venture, strategic alliance, partnership, or provide for “most favored nations” termslimited liability company relationship;
(jiv) Contracts with any Governmental Authoritygoverning or relate to Indebtedness, including guarantees for money borrowed by others;
(kv) Contracts entered into in connection with obligating the Company or any merger, consolidation of its Subsidiaries to develop any product or other business combination, or with respect technology;
(vi) Contracts relating to the acquisition or disposition of any business, material assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business)since January 1, 2010;
(lvii) Contracts providing for relating to any rights or obligations to undertake the settlement development or commercialization of any material Proceedingpharmaceutical product;
(mviii) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party not otherwise set forth on Schedule 3.8(a), Contracts relating to a Material Contract is Aradigm Technology (as defined in compliance in all material respects with the terms and requirements Ciprofloxacin License Agreement) or any related products or product candidates; or
(ix) Contracts involving the payment of such Material Contract and, to royalties or other amounts calculated upon the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements revenues or income of such Material Contract. Neither the Company nor, or any of its Subsidiaries or income or revenues related to any product or Intellectual Property of the Company’s Knowledge, Company or any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderits Subsidiaries.
Appears in 1 contract
Sources: Equity Purchase Agreement
Material Contracts. Section 3.10 of the Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers Except as disclosed in Schedule 3.25(a), the Company is not a party to or bound by, and Contracts with Material Customers, Contracts pursuant to which any Target Company none of the Company’s assets are bound by:
(i) any agreement for the purchase or sale of materials, supplies, goods, services, equipment or other assets (other than pursuant to purchase orders made payments to any third party in the twelve (12ordinary course of business consistent with past practice) month period prior to providing for annual payments or receipts by the date hereof, in excess Company of $500,000; 1,500,000 or more;
(ii) received payments from any third party in the twelve (12) month prior to the date hereofpartnership, in excess of $500,000joint venture or other similar agreement or arrangement;
(biii) collective bargaining agreements and any other contracts agreement for Indebtedness (whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with any labor unionsan aggregate outstanding principal amount not exceeding $1,000,000;
(civ) Contracts any agreement that limits in any material respect the freedom of the Company either (other than Benefit Plansx) to compete in any line of business, with any Person or in any area for any length of time or that subjects the employment or engagement Company to the obligations of any officer“most favored nation,” “most favored customer,” non-competition or similar clauses with respect to pricing or performance or (y) to solicit, engage or hire any Person as an employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearconsultant;
(dv) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts material agreement with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company Seller or any of its Affiliates from (i) engaging in or any line director or officer of business Seller or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Personits Affiliates;
(ivi) Contracts that contain any Contract or provide for “most favored nations” termscommitment requiring, after the Execution Date and relating to the Acquired Company, the mortgage, pledge, sale, or disposal of assets with a value in excess of $1,000,000 or release, grant, or transfer of Company rights with a value in excess of $1,000,000;
(jvii) Contracts with any Governmental AuthorityContract evidencing any outstanding agreements of guaranty or surety, direct or indirect, by the Company;
(kviii) Contracts entered into in connection any Contract evidencing Indebtedness, together with any merger, consolidation all security agreements or other business combinationLien documents related to or binding on the assets of the Company;
(ix) any Contract the breach or termination of which would, individually or with respect in the aggregate, result in a Company Material Adverse Effect;
(x) (A) any Contract relating to the Acquired Company for lease of personal property or (B) any Contract relating to the Acquired Company for lease of Real Property, in each case involving aggregate payments in excess of $1,000,000 per annum;
(xi) any Contract relating to the acquisition or disposition of any businessof the assets of the Company material to the conduct of the Acquired Company, assets other than such Contracts or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements other commitments entered into in connection therewith (other than sales of assets in the ordinary course of business)business that contemplate aggregate consideration of less than $1,000,000 to be paid or received by the Company;
(lxii) Contracts providing for the settlement of any material Proceeding;Contract relating to Company Intellectual Property Rights; or
(mxiii) limited liability company agreements, partnership agreements, Tax Sharing Agreements any Contract or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company commitment for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderforegoing.
Appears in 1 contract
Material Contracts. (a) Schedule 5.13(a) sets forth, by reference to the applicable subsection of this Section 3.10 of the Disclosure Schedule contains a list 5.13(a), all of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, party and for which there are continuing obligations as of or following the Closing Date or by which such Target any Company or its any Company’s assets or properties or assets are boundbound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and any current or former officer, director, equity holder, manager, member or Affiliate of any Company;
(ii) Contracts with Material Customers, any labor Union or association representing any Employee of any Company;
(iii) Contracts pursuant to which for the sale of any Target of the assets of any Company (i) made payments other than in the Ordinary Course of Business or for the grant to any third party Person of any preferential rights to purchase any of its assets;
(iv) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information;
(v) Contracts containing: (A) covenants of any Company not to compete in the twelve any line of business or with any Person in any geographical area or not to solicit or hire any Person or (12B) month period prior covenants of any other Person not to compete with any Company in any line of business or in any geographical area or not to solicit or hire any Person;
(vi) Contracts relating to the date hereofacquisition (by merger, purchase of equity or assets or otherwise) by any Company of any operating business or material assets or the capital stock of any other Person;
(vii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of Company, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(viii) Contracts (A) providing for payments by or to any Company in excess of $500,000; 25,000 in any fiscal year or $50,000 in the aggregate during the term thereof or (iiB) received payments from any third party in the twelve (12) month prior to the date hereof, in excess that involve delivery of $500,0005,000 yards or more of product;
(bix) collective bargaining agreements and Contracts providing for severance, retention, any bonus, change in control or other contracts with any labor unionssimilar payments;
(cx) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis, excluding offer letters whereby any Company employs an individual on an “at-will” basis that provide annual cash compensation in excess of $150,000 per yearare terminable without prior notice or penalty;
(dxi) material management Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan and Contracts with Independent Contractors or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, consultants (or similar letters of credit, arrangements) that are not cancelable without penalty or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Personfurther payment and without more than 30 days’ notice;
(exii) the Leasesoutstanding Contracts of guaranty, surety or indemnification, direct or indirect, by any Company;
(fxiii) all Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts obligating any Company to provide or obtain products or services for a period of one year or more or containing any covenant of a Target Company that restricts a Target Company minimum purchase requirements, take-or-pay provisions, exclusivity requirement, exclusive-dealing provision, requirements contracts or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person“most-favored nation”, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nationspricing” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into or similar clause in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition favor of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 1 contract
Sources: Equity and Asset Purchase and Contribution Agreement (Concrete Partners Holding, LLC)
Material Contracts. Section 3.10 of the Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material CustomersExcept as set forth in Section 4.11 of the Buyer Disclosure Schedule, Contracts pursuant neither Buyer nor any of its Subsidiaries is a party to which any Target Company or bound by:
(i) made any agreement for the purchase of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments to any third party in the twelve by Buyer and its Subsidiaries of US$2,000,000 or more or (12B) month period prior to the date hereofaggregate payments by Buyer and its Subsidiaries of US$2,000,000 or more, in excess each case that cannot be terminated on not more than 60 days’ notice without payment by Buyer or any such Subsidiary of $500,000; or any material penalty;
(ii) received payments from any third party in the twelve (12) month prior to the date hereofsales, in excess of $500,000;
(b) collective bargaining agreements and any distribution or other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) similar agreement providing for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company sale by Buyer or any of its Affiliates from (i) engaging in any line Subsidiaries of business materials, supplies, goods, services, equipment or geographic region with any Person, (ii) soliciting any customers, suppliers, employees other assets that provides for annual payments to Buyer and its Subsidiaries of US$2,000,000 or contractors of any other Person, or more;
(iii) competing with any Personmaterial partnership, joint venture, dealer, distribution or other similar agreement or arrangement;
(iiv) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect agreement relating to the acquisition or disposition of any businessmaterial business (whether by merger, sale of stock, sale of assets or securitiesotherwise);
(v) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (A) with an aggregate outstanding principal amount not exceeding US$2,000,000 or (B) entered into subsequent to the date of this Agreement as permitted by Section 6.01;
(vi) any material agreement that limits the freedom of Buyer or any of its Subsidiaries to compete in any line of business or with any Person or in any area;
(vii) any contract or commitment relating to capital expenditures and involving future payments in excess of US$2,000,000 individually or US$2,000,000 in the aggregate;
(viii) any employment agreement with or offer letter to an employee or individual consultant, contractor, or any equity or debt investment in salesperson of Buyer or any loan to of its Subsidiaries, providing for annual payments of US$ 2,000,000 or more;
(ix) any Personsales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of Buyer or any of its Subsidiaries; providedor
(x) any other agreement, that the foregoing shall commitment, arrangement or plan not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets made in the ordinary course of business);
(l) Contracts providing for the settlement of any business that is material Proceeding;
(m) limited liability company agreementsto Buyer and its Subsidiaries, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve taken as a sharing of profits, losses, costs or liabilities by any Target Company with any other Personwhole.
(nb) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually Each agreement, contract, plan, lease, arrangement or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not commitment required to disclose on be disclosed pursuant to this Section 3.17(a) is a valid and binding agreement of Buyer or a Subsidiary of Buyer, as the Disclosure Schedulecase may be, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect effect, and is valid and enforceable against the applicable Target Company andnone of Buyer, any of its Subsidiaries or, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements Knowledge of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s KnowledgeBuyer, any other party thereto, thereto is in default or breach of or default in any respect under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice the terms of any intention to terminate such agreement, contract, plan, lease, arrangement or commitment, except for any such defaults or breaches which would not have a Buyer Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderAdverse Effect.
Appears in 1 contract
Material Contracts. (a) Section 3.10 4.11(a) of the Disclosure Schedule contains a list of Schedules lists each Contract that is material to the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with all Contracts concerning the Intellectual occupancy, management, or operation of any Real Property Licenses(as defined in Section 4.12(a)), each, a being “Material ContractContracts”):), including the following:
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant each Contract of the Company involving aggregate consideration to which any Target be paid or received by the Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof10,000 and which, in excess of $500,000each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(b) collective bargaining agreements and all Contracts that provide for the indemnification by the Company of any Person or the assumption of any Tax (as defined in Section 4.20(a)), environmental, or other contracts with Liability of any labor unionsPerson;
(c) all Contracts relating to Intellectual Property (other than Benefit Plans) for the employment or engagement of any officeras defined in Section 4.13(a)), employee or other Person on a full-timeincluding all licenses, part-timesublicenses, consultingsettlements, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearcoexistence agreements, covenants not to sue, and permissions;
(d) except for Contracts evidencing Indebtedness relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of PersonCompany;
(e) all Contracts that limit or purport to limit the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant ability of a Target the Company that restricts a Target Company or any of its Affiliates from (i) engaging to compete in any line of business or geographic region with any PersonPerson or in any geographic area or during any period of time; 115439161.13 0074720-00001
(f) all Contracts relating to any joint venture, (ii) soliciting any customerspartnership, supplierslimited liability company or other similar Contract relating to the formation, employees creation, operation, management, sharing of profit or contractors losses or control of any other Personpartnership, strategic alliance or (iii) competing with any Personjoint venture;
(ig) all Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect relating to the acquisition or disposition of any businessassets, business or real property (whether by merger, sale of stock, sale of assets or securitiesotherwise) that are material to the Company, taken as a whole, and with respect to which the Company has material obligations remaining to be performed or any equity or debt investment in or any loan to any Person; provided, that material liabilities continuing after the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales date of assets in the ordinary course of business)this Agreement;
(lh) all Contracts providing for the settlement of with a Governmental Authority or with any material Proceedingother Person that is a subcontract relating to a Contract between such Person and a Governmental Authority;
(mi) limited liability company agreements, partnership agreements, Tax Sharing Agreements all employment agreements and Contracts with independent contractors or joint venture agreements that involve a sharing of profits, losses, costs consultants (or liabilities by any Target Company with any other Person.
(nsimilar arrangements) outstanding powers-of-attorney granted by to which the Company for any purpose whatsoeveris a party; and
(oj) Contracts related any other Contract that is material to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is and not required to disclose on Section 3.17(abe disclosed pursuant to the foregoing clauses (i) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract through (including all modifications, amendments and supplements thereto and waivers thereunderix). .
(b) Each Material Contract is valid and binding on the Company in accordance with its terms and is in full force and effect and is valid and enforceable against effect, except as enforceability may be limited by general equitable principles. None of the applicable Target Company andor, to the Companybest of Seller’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, knowledge any other party thereto, is in breach of or default under (or is alleged to be in breach of or default under), any Material Contract. The Company None of Seller, the Company, or any other party to any Material Contract has neither provided nor or received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse Complete and correct copies of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any each Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit (including all modifications, amendments, and supplements thereto and waivers thereunder) have been made available to Buyer.
Appears in 1 contract
Material Contracts. Section 3.10 of the Disclosure Schedule contains a list (a) The Company has delivered or otherwise made available to Parent true, correct and complete copies of the following types of Contracts contracts and agreements (and each amendment or modification theretoall amendments, modifications and supplements thereto and all side letters to which the Company is a party affecting the obligations of any party thereunder) to which any Target the Company is a party, party or by which such Target Company or any of its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”)::
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made any agreement presently in effect for the purchase of inventory, supplies, equipment or other real or personal property, or the procurement of services, except individual purchase orders or aggregate purchase orders to a single vendor involving payments to of less than $100,000;
(ii) any third party lease presently in the twelve (12) month period prior to the date hereofeffect or ownership of equipment, machinery or other personal property involving aggregate annual payments in excess of $500,000; 100,000;
(iii) any agreement presently in effect for the sale or lease of products or furnishing of its services, except individual purchase orders or aggregate purchase orders from a single customer involving payments of less than $100,000;
(iiiv) received payments from any joint venture, partnership or other contract or arrangement presently in effect involving the sharing of profits other than license agreements;
(v) any agreement presently in effect relating to the purchase or acquisition, by merger or otherwise, of a significant portion of its business, assets or securities by any other person, or of any other person by it, other than as contemplated herein;
(vi) any agreement presently in effect containing a covenant or covenants which purport to limit its ability or right to engage in any lawful business activity material to it or to compete with any person or entity in a business material to it;
(vii) any agreement presently in effect pursuant to which it has appointed any organization or person to act as its distributor or sales agent or pursuant to which it has been appointed a distributor or sales agent by any third party party;
(viii) any agreement presently in effect with any of its officers, directors or affiliates;
(ix) any agreement presently in effect for the twelve (12) month prior license of any patent, copyright, trade secret or other proprietary information agreements involving the payment by or to the date hereof, Company in excess of $500,00025,000;
(bx) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment agreement presently in effect involving payments to or engagement obligations of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation it in excess of $150,000 per year;100,000, not otherwise described in this Section 2.21; or
(dxi) Contracts evidencing Indebtedness any agreement of the Target Companies indebtedness or capital equipment leases presently in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures effect in excess of $100,000 individually or $250,000 (collectively, together with any such contracts entered into in accordance with Section 4.1, the aggregate. Other than the Intellectual Property Licenses that "Contracts").
(b) Except as set forth in Section 2.21 of the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, :
(i) There is no default under any Contract either by the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company andor, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements knowledge of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, by any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, and no Occurrence event has occurred or exists which, that with notice or the lapse of time or boththe giving of notice or both could constitute a default thereunder by the Company or, may give rise toto the knowledge of the Company, serve as any other party, in any such case, individually or in the aggregate, in which such default or event could reasonably be expected to have a basis forMaterial Adverse Effect on the Company;
(ii) No party to any such Contract has given notice to the Company of or made a claim against the Company with respect to any breach or default thereunder, in any such case in which such breach or would constitute an event default could reasonably be expected to have a Material Adverse Effect on the Company; and
(iii) To the knowledge of default under the Company, no party to any Material such Contract intends to cancel, withdraw, modify or result in a termination thereof or would cause or permit the acceleration or other changes of amend any right or obligation or the loss of any material benefit thereundersuch Contract.
Appears in 1 contract
Material Contracts. (a) Except as set forth on Section 3.10 4.21(a) of the Company Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are boundSchedule, as of the date hereof, neither the Company nor any of this Agreement its Subsidiaries is a party to or bound by, whether in writing or not, any of the following (other than agreements solely between or among the Company and its wholly-owned Subsidiaries and not containing any rights of or obligations to any third party) (any item set forth in one sub-section of Section 4.21(a) of the Company Disclosure Schedule need not be repeated in another sub-section of Section 4.21(a) if applicability to such Contracts, together with other sub-section is reasonably apparent from the Intellectual Property Licenses, each, a “Material Contract”disclosure set forth in the first such sub-section):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made any agreement or series of related agreements for the purchase, sale (other than coal supply or coal product sales agreements), receipt, lease or use of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments by or to the Company or any third party of its Subsidiaries of $500,000 or more or (B) aggregate payments by or to the Company or any of its Subsidiaries of $2,500,000 or more;
(ii) any partnership, joint venture, limited liability company, operating, shareholder, investor rights or other similar agreement or arrangement with any Person;
(iii) any distributor, dealer, sales agency, sales representative, marketing or similar contracts;
(iv) any agreement or series of related agreements relating to, or entered into in connection with, the acquisition or disposition of the equity securities of any Person (other than in respect of the investments with funds held in escrow accounts established to support reclamation obligations of the Company or any of its Subsidiaries), any business or any material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(v) any agreement relating to indebtedness for borrowed money, the deferred purchase price of property or the prepaid sale of goods or products (in any such case, whether incurred, assumed, guaranteed or secured by any asset and, in the twelve (12) month period prior case of agreements relating to the date hereofdeferred purchase price of property, with a value in excess of $500,000; 100,000), including indentures, mortgages, loan agreements, capital leases, security agreements or (ii) received payments from any third party other agreements for the incurrence of indebtedness, other than trade accounts payable incurred in the twelve ordinary course of business;
(12vi) month prior any agreement relating to any interest rate, currency or commodity derivative or hedging transaction (excluding any agreements for the purchase of diesel fuel where physical delivery is intended);
(vii) any agreement (including any keepwell agreement) under which (A) to the date hereofknowledge of the Company any Person has directly or indirectly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries (other than any such guarantees by the Company and its wholly-owned Subsidiaries), in case of each such liability or obligation, in an amount in excess of $500,000;
1,000,000 or (bB) collective bargaining agreements and the Company or any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment of its Subsidiaries has, directly or engagement of any officerindirectly, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Personother Person (other than the Company or any wholly-owned Subsidiary);
(eviii) any agreement that (A) limits the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant freedom of a Target Company that restricts a Target the Company or any of its Affiliates from (i) engaging Subsidiaries to compete in any line of business or geographic region with any PersonPerson or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains exclusivity or “most favored nation” obligations or restrictions binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(ix) any employment, consultancy, deferred compensation, loan, retention, bonus, severance, retirement or other similar agreement or arrangement (including any amendment to any such existing agreement or arrangement) with any director, officer or employee of the Company or any of its Subsidiaries (other than loans to non-executive employees not in excess of $10,000 individually or $100,000 in the aggregate);
(x) any consulting agreement or similar arrangement with an independent contractor providing for (i) annual payments by the Company or any of its Subsidiaries of $100,000 or more, (ii) soliciting aggregate payments by the Company or any customers, suppliers, employees of its Subsidiaries of $250,000 or contractors of any other Person, more or (iii) competing with any Persona term in excess of three years;
(ixi) Contracts that contain or provide for “most favored nations” termsany collective bargaining agreement;
(jxii) Contracts with any Governmental Authority;
contracts or agreements relating to the provision of contract mining (k) Contracts entered into in connection with excluding any merger, consolidation or other business combination, or agreement solely with respect to the acquisition provision of contract labor) by or disposition of any business, assets or securities, to the Company or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business)its Subsidiaries;
(lxiii) Contracts providing for the settlement any lease or sublease of any material Proceedingor relating to (A) real property leased to others, (B) tangible personal property leased to others or (C) mining or exploration rights leased to others;
(mxiv) limited liability company any contracts or agreements related to the Company’s or its Subsidiaries storage or transportation of coal (including stock piling and loading agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
) providing for either (ni) outstanding powers-of-attorney granted annual payments by the Company for or any purpose whatsoever; andof its Subsidiaries of $250,000 or more or (ii) aggregate payments by the Company or any of its Subsidiaries of $1,000,000 or more;
(oxv) Contracts related to capital projects and capital expenditures any coal supply agreement or coal product sales agreement; or
(xvi) any other agreement, commitment, arrangement or plan not of a type described above but with a value in excess of $100,000 individually 1,000,000.
(b) Each agreement, contract, plan, lease, arrangement or $250,000 commitment disclosed or required to be disclosed pursuant to Section 4.21(a) (and, for purposes of (A) the making of this representation and warranty as of the Effective Time solely for purposes of Section 4.30 and (B) the satisfaction or failure of the condition set forth in Section 9.02(a)(iv), each agreement, contract, plan, lease, arrangement or commitment entered into between the date hereof and the Closing Date that would have been required to be disclosed pursuant to Section 4.21(a) if it had been in effect as of the date hereof) is referred to as a “Material Contract”. Each Material Contract is, to the Company’s knowledge, a valid and binding agreement of the parties thereto (other than the Company and its Subsidiaries), and, to the Company’s knowledge, is in full force and effect and in all material respects enforceable against such other parties, in accordance with its terms (except to the extent that enforceability may be limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws from time to time in effect affecting generally the enforcement of creditors’ rights and remedies and (ii) general principles of equity, whether in a proceeding at law or in equity) and prior to the date hereof the Company or any of its Subsidiaries has not received any written notice to terminate, in whole or material part, any of the same. 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 under the material terms of any such Material Contract, and, to the knowledge of the Company, no event or circumstance has occurred that, with notice or lapse of time or both, is reasonably likely to constitute any event of default thereunder that would be reasonably expected to result in the aggregatetermination of such Material Contract. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true True and complete copies of each Material Contract (including all modifications, modifications and amendments and supplements thereto and waivers thereunder). Each Material Contract is thereto) in full force and effect and is valid and enforceable against as of the applicable Target Company and, date hereof have been made available to Parent prior to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderdate hereof.
Appears in 1 contract
Sources: Merger Agreement (Patriot Coal CORP)
Material Contracts. Section 3.10 of the Disclosure Schedule contains a list (i) Centennial Bank has Previously Disclosed and provided to Acquiror complete and correct copies of the following types of Contracts (and each amendment or modification thereto“Material Contracts”) to which any Target Company Centennial Bank is a party, or by which such Target Company or its properties or assets are it may be bound, as or to which its assets or properties may be subject, a list of which is set forth in Section 3.02(s) of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):Bank Disclosure Schedule:
(a1) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess lease of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000real property;
(b2) collective bargaining agreements and any partnership, limited liability company, joint venture or other contracts with any labor unionssimilar agreement or arrangement;
(c3) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect Contract relating to the acquisition or disposition of any business or operations (whether by merger, sale of stock, sale of assets or otherwise);
(4) any individual Contract for the purchase of services, materials, supplies, goods, equipment or other assets or property that provides for either (1) annual payments of $50,000 or more or (2) aggregate payments of $50,000 or more;
(5) all Contracts, other than those set forth under clause (4) above, for the purchase of services, materials, supplies, goods, equipment or other assets or property that, together with all other such Contracts, provide for aggregate payments of $500,000 or more;
(6) any Contract that creates future payment obligations in excess of $100,000 and that by its terms does not terminate or is not terminable without penalty upon notice of sixty (60) days or less, or any Contract that creates or would create a Lien;
(7) any Contract providing for a power of attorney on behalf of Centennial Bank;
(8) any Contract, other than this Agreement, providing for exclusive dealing or limiting the freedom of Centennial Bank or any of its current or former employees to compete in any line of business or with any person or in any area, or that would so limit their freedom;
(9) any Contract, other than this Agreement, that requires Centennial Bank to disclose confidential information or to indemnify or hold harmless any person;
(10) any Contract, other than this Agreement, that is in effect, or has been entered into in the two years prior to the date hereof, with (1) any Affiliate of Centennial Bank, (2) any current or former director, officer, employee, consultant or stockholder of Centennial Bank or any of its Affiliates, or (3) any member of the Family of a person identified in clauses (1) or (2) of this paragraph;
(11) any Contract with a Governmental Entity;
(12) any agreement or contract entered into by Centennial Bank relating to, in any way, any proposal for a merger, consolidation or other business combination involving Centennial Bank or any other proposal or offer to acquire in any manner the capital stock, business, assets or securitiesdeposits of, or Centennial Bank since January 1, 2008;
(13) any equity or debt investment in or any loan to any Person; provided, that the foregoing shall other Contract not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement business consistent with Past Practice or that is material to it or its financial condition or results of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Personoperations.
(nii) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is a valid and legally binding agreement of Centennial Bank and, to Centennial Bank’s knowledge, the counterparty or counterparties thereto, is enforceable in accordance with its terms (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles) and is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contracteffect. Neither the Company norCentennial Bank, nor to the CompanyCentennial Bank’s Knowledgeknowledge, any other party theretocounterparty or counterparties, is in breach of any provision of or in default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists whichor, with the giving of notice or lapse of time or both, may give rise towould be in default) under, serve as a basis forand has not taken any action resulting in the termination of, acceleration of performance required by, or would constitute an event resulting in a right of default under termination or acceleration under, any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderContract.
Appears in 1 contract
Material Contracts. Section 3.10 (a) Schedules (i) through (ix) of the Company Disclosure Schedule contains Letter set forth a list or description of each of the following types of Contracts (and each amendment or modification thereto) to which any Target the Company is a party, party that are in effect on the Agreement Date (the Contracts identified or by which required to be identified in such Target Company or its properties or assets are bound, as Schedules of the date of this Agreement (such ContractsCompany Disclosure Letter, together with are referred to as the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other any Contract providing for payments by or to the Company (or under which the Company has made or received such payments) in the period since the Company’s inception in an aggregate amount of $50,000 or more;
(ii) (A) any joint venture Contract, (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons and (C) any Contract that involves the payment of royalties to any other Person;
(iii) any separation agreement or severance agreement with any current or former employees under which the Company has any actual or potential Liability; 36
(iv) other than licenses for generally available software or technology for which the Company is obligated to pay less than $100,000 per year and no more than $500,000 in the aggregate, all licenses, sublicenses and other Contracts with Material Suppliers to which the Company is a party and Contracts with Material Customers, Contracts pursuant to which the Company acquired or is authorized to use any Target Third-Party Intellectual Property Rights used in the development, marketing or licensing of the Company Products;
(v) any Contract providing for the joint development of any software, technology or Intellectual Property Rights either by or for the Company (iother than employee invention assignment agreements and consulting agreements with Authors on the Company’s standard form of agreement);
(vi) made payments to any Contract that authorizes any third party to host, store, warehouse, or provide cloud computing services in connection with, any of the Company Products or Company Intellectual Property, other than such Contracts for services that are generally available and for which the Company is obligated to pay less than $100,000 per year and no more than $500,000 in the twelve aggregate;
(12vii) month period prior any settlement agreement with respect to any Legal Proceeding;
(viii) any Contract pursuant to which the date hereofCompany has acquired a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any Contract pursuant to which it has any material ownership interest in excess of $500,000any other Person; and
(ix) any Contract with any Governmental Entity, any Company Authorization, or any Contract with a government prime contractor, or higher-tier government subcontractor, including any indefinite delivery/indefinite quantity contract, firm-fixed-price contract, schedule contract, blanket purchase agreement, or task or delivery order (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;each a “Government Contract”).
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) All Material Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation are in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness written form. The Company has performed all of the Target Companies in excess obligations required to be performed by it and is entitled to all benefits under, and as of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company Agreement Date is not required alleged to disclose on Section 3.17(a) be in default in respect of, any Material Contract. Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is valid and enforceable against the applicable Target Company andeffect, subject only to the Company’s Knowledgeeffect, if any, of applicable bankruptcy and other similar Applicable Laws affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies. There exists no default or event of default or event, occurrence, condition or act, with respect to the Company or to the knowledge of the Company as of the Agreement Date, with respect to any other contracting party, that, with the giving of notice, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or boththe happening of any other event or condition, may give rise to, serve as would reasonably be expected to (i) become a basis for, default or would constitute an event of default under any Material Contract or result (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in a termination thereof delivery schedule under any Material Contract, (C) the right to accelerate the maturity or would cause performance of any obligation of the Company under any Material Contract, or permit (D) the acceleration right to cancel, terminate or modify any Material Contract. As of the Agreement Date, the Company has not received any written notice or other changes written communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Contract. The Company has no Liability for renegotiation of any right or obligation or the loss Government Contracts. True, correct and complete copies of any material benefit thereunderall Material Contracts have been Made Available to Acquirer.
Appears in 1 contract
Sources: Merger Agreement (Facebook Inc)
Material Contracts. (a) Except as set forth in Section 3.10 3.14(a) of the Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which Schedule, neither Company nor any Target Company Subsidiary is a party, party to or by which such Target Company or its properties or assets are boundbound by, as of the date hereof, any of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):following:
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments any contract or agreement entered into since January 1, 2017 (and any contract or agreement entered into at any time to any third party in the twelve (12) month period prior to extent that material obligations remain as of the date hereof), in excess of $500,000; or (ii) received payments from any third party other than in the twelve (12) month prior to ordinary course of business consistent with past practice, for the date hereof, in excess acquisition of $500,000;
(b) collective bargaining agreements and the securities of or any material portion of the assets of any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(eii) any trust indenture, mortgage, promissory note, loan agreement, Mortgage Loan purchase agreement, or other contract, agreement or instrument for the Leasesborrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP, in each case, where Company or any Company Subsidiary is a lender, borrower or guarantor other than agreements evidencing deposit liabilities, trade payables and contracts or agreements relating to borrowings entered into in the ordinary course of business;
(fiii) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant contract or agreement limiting the freedom of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging Company Subsidiary to engage in any line of business or to compete with any other Person or prohibiting Company from soliciting customers, clients or employees, in each case whether in any specified geographic region or business or generally;
(iv) any contract or agreement with any PersonAffiliate of Company or its Subsidiaries;
(v) any agreement of guarantee, support or indemnification by Company or the Company Subsidiaries, assumption or endorsement by Company or the Company Subsidiaries of, or any similar commitment by Company or the Company Subsidiaries with respect to, the obligations, liabilities (iiwhether accrued, absolute, contingent or otherwise) soliciting any customers, suppliers, employees or contractors indebtedness of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts Person other than those entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business;
(vi) any agreement under which a payment obligation in excess of $50,000 would arise or be accelerated, in each case as a result of the announcement or consummation of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional acts or events);
(lvii) Contracts providing for the settlement any alliance, cooperation, joint venture, shareholders’ partnership or similar agreement involving a sharing of profits or losses relating to Company or any material ProceedingCompany Subsidiary;
(mviii) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company employment agreement with any other Person.employee or officer of Company or any Company Subsidiary;
(nix) outstanding powers-of-attorney any broker, distributor, dealer, agency, sales promotion, customer or client referral, underwriter, administrative services, market research, market consulting or advertising agreement providing for annual payments by Company or the Company Subsidiaries of more than $50,000;
(x) any agreement, option or commitment or right with, or held by, any third party to acquire, use or have access to, any assets or properties, or any interest therein, of Company or the Company Subsidiaries, other than in connection with the sale of Loans, Loan participations or investment securities in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company;
(xi) any contract or agreement that contains any: (A) exclusive dealing obligation; (B) “clawback” or similar undertaking requiring the reimbursement or refund of any fees; (C) “most favored nation” or similar provision granted by Company or any Company Subsidiary; or (D) provision that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of Company for or any purpose whatsoever; andCompany Subsidiary to own, operate, sell, transfer, pledge or otherwise dispose of any assets or business;
(oxii) Contracts related any material contract or agreement which would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement;
(xiii) any contract under which Company or any Company Subsidiary will have a material obligation with respect to capital projects and capital expenditures an “earn-out,” contingent purchase price or similar contingent payment obligation, or any other material liability after the date hereof;
(xiv) any lease or other contract (whether real, personal or mixed, tangible or intangible) pursuant to which the annualized rent or lease payments for the lease year that includes December 31, 2020, as applicable, were in excess of $100,000 individually 50,000;
(xv) any contract or agreement with respect to the performance by Company or the Company Subsidiaries of Loan servicing with any outstanding obligations that are material to Company or any Company Subsidiary;
(xvi) any contract or agreement that: (A) grants Company or one of its Subsidiaries any right to use any Intellectual Property (other than “shrink-wrap,” “click-wrap” or “web-wrap” licenses in respect of commercially available software) and that provides for payments in excess of $250,000 50,000; (B) permits any third Person to use, enforce or register any Intellectual Property, including any license agreements, coexistence agreements and covenants not to use; or (C) restricts the right of Company or one of its Subsidiaries to use or register any Intellectual Property;
(xvii) any contract or agreement that is a settlement agreement other than releases immaterial in nature or amount entered into in the aggregate. Other ordinary course of business with the former employees of Company or the Company Subsidiaries or independent contractors in connection with the routine cessation of such employee’s or independent contractor’s employment;
(xviii) any contract or agreement that involved or is expected to involve the payment of more than $50,000 by Company and the Company Subsidiaries in 2020 or 2021 (other than any such contracts which are terminable by Company or any Company Subsidiary on 60 days’ or less notice without any required payment or other conditions, other than the Intellectual Property Licenses condition of notice); or
(xix) any contract not listed above that is material to the financial condition, results of operations or business of Company or the Company Subsidiaries, including any contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC). Each contract, arrangement, commitment or understanding of the type described in this Section 3.14(a), whether or not required to disclose on set forth in Section 3.17(a3.14(a) of the Disclosure Schedule, the is referred to herein as a “Material Contract.” Company has made available to Purchaser true Parent true, correct and complete copies of each Material Contract in effect as of the date hereof.
(including all modifications, amendments and supplements thereto and waivers thereunder). i) Each Material Contract is valid and binding on Company or its applicable Subsidiary and in full force and effect and is valid and enforceable against the applicable Target Company effect, and, to the Knowledge of Company’s Knowledge, is valid and binding on the other parties thereto; (ii) Company and each of its Subsidiaries and, to the Knowledge of Company, each of the other parties thereto, has complied with or performed in all material respects all obligations required to be complied with or performed by it to-date under each Material Contract; (iii) neither Company nor any Company Subsidiary has Knowledge of, or has received notice of, any violation of any Material Contract by any of the other parties thereto which would reasonably be expected to have, either individually or in accordance with their termsthe aggregate, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms Adverse Effect on Company or any Company Subsidiary; and requirements of such Material Contract and(iv) no event or condition exists which constitutes or, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with after notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event a breach or default on the part of default Company or any Company Subsidiary or, to the Knowledge of Company, any other party thereto, under any such Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderContract.
Appears in 1 contract
Material Contracts. Section 3.10 Except: (i) for the contracts filed with the ------------------- Company SEC Documents pursuant to Item 601 of Regulation S-B under the rules and regulations of the Disclosure SEC; (ii) as set forth in Schedule contains a list of 2.21 (the following types of Contracts contracts in (i) and each amendment (ii) being collectively referred to herein as the "Material Contracts"); and ------------------ (iii) for this Agreement, and other contracts and agreements which individually or modification thereto) in the aggregate are not material to which any Target Company is a party, or by which such Target Company or its properties or assets are boundthe Company's businesses, as of the date of this Agreement (such ContractsExecution Date, together with the Intellectual Property Licenses, each, Company is not a “Material Contract”):party to or bound by:
(a) Other than Contracts with Material Suppliers and Contracts with Material Customersany distribution agreement, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereofmanufacturer's representative agreement, in excess of $500,000; partnership agreement or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000joint R&D or technology sharing arrangements;
(b) collective bargaining agreements and any other contracts with continuing contract for the purchase or sale of materials, supplies, equipment or services, or any labor unionsagency or indemnification arrangement, involving in the case of any such contract more than $50,000 over the life of the contract;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officertrust indenture, employee mortgage, promissory note, loan agreement or other Person on a full-timecontract for borrowed money not reflected in the Company Financial Statements, part-timeany currency exchange, consulting, independent contractor commodities or other basis that provide annual cash compensation hedging arrangement or any leasing transaction involving in excess of $150,000 per year50,000 and of the type required to be capitalized in accordance with GAAP;
(d) Contracts evidencing Indebtedness of the Target Companies any contract for capital expenditures or royalty payments in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person50,000 in the aggregate;
(e) any contract limiting the Leasesfreedom of Company to engage in any line of business, to acquire any product or asset from any other Person, to sell any product or asset to, or to perform any service for, any Person, or to compete with any other Person (as that term is defined in the Exchange Act);
(f) Contracts with Material Suppliersany confidentiality, secrecy or nondisclosure contract, which individually or in the aggregate, materially affects the business or operations of the Company;
(g) Contracts with Material Customersany contract pursuant to which Company is a lessor of real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving in the case of any such personal property contact more than $50,000 over the life of the contract;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region contract with any Person, (ii) soliciting any customers, suppliers, employees or contractors Person that would be required to be disclosed under Item 404 of any other Person, or (iii) competing with any PersonRegulation S-B under the rules and regulations of the SEC;
(i) Contracts that contain any contract which provides for the indemnification of any officer, director, employee or provide for “most favored nations” terms;agent; or
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any mergeragreement of guarantee, consolidation support, assumption or other business combination, or with respect to the acquisition or disposition of any business, assets or securitiesendorsement of, or any equity similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or debt investment in otherwise) or indebtedness of any loan to any Person; provided, that the foregoing shall other Person not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets reflected in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other PersonFinancial Statements.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 1 contract
Material Contracts. Section 3.10 of the (a) Except for this Agreement, Disclosure Schedule contains a list 5.14(a) sets forth, by reference to the applicable subsection of this Section 5.14(a), all of the following types of Contracts (and each amendment or modification thereto) to which Cherry or any Target Company of its Subsidiaries is a party, party or by which such Target Company it or its assets or properties or assets are boundbound (collectively, as of the date of this Agreement (such “Cherry Material Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(ai) Other than Contracts with Material Suppliers and a stockholder or Affiliate thereof or any current or former officer, director, stockholder or Affiliate of Cherry or any of its Subsidiaries;
(ii) Contracts with Material Customers, Contracts pursuant to which for the sale of any Target Company (i) made payments of the assets of Cherry or any of its Subsidiaries other than in the Ordinary Course of Business or for the grant to any third party Person of any preferential rights to purchase any of its assets; Table of Contents
(iii) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information;
(iv) Contracts containing covenants of Cherry or any of its Subsidiaries not to compete in the twelve any line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment or covenants of any other Person not to compete with Cherry or any of its Subsidiaries in any line of business or in any geographical area or not to solicit or hire any person with respect to employment;
(12v) month period prior Contracts relating to the date hereofacquisition (by merger, purchase of stock or assets or otherwise) by Cherry or any of its Subsidiaries of any operating business or material assets or the capital stock of any other Person;
(vi) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of Cherry or any of its Subsidiaries, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(vii) purchase Contracts giving rise to Liabilities of Cherry or any of its Subsidiaries in excess of $500,000; 1,000;
(viii) all Contracts providing for payments by or (ii) received payments from to Cherry or any third party in the twelve (12) month prior to the date hereof, of its Subsidiaries in excess of $500,0001,000 in any fiscal year or $1,000 in the aggregate during the term thereof;
(bix) collective bargaining agreements and all Contracts obligating Cherry or any other contracts with of its Subsidiaries to provide or obtain products of services for a period of one year or more or requiring Cherry or any labor unionsof its Subsidiaries to purchase or sell a stated portion of its requirements or outputs;
(cx) Contracts under which Cherry or any of its Subsidiaries has made advances or loans to any other Person;
(xi) Contracts providing for severance, retention, change in control or other than Benefit Planssimilar payments;
(xii) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide providing annual cash compensation in excess of $150,000 per year50,000.00;
(dxiii) material management Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan and Contracts with independent contractors or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, consultants (or similar letters of credit, arrangements) that are not cancelable without penalty or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Personfurther payment and without more than thirty (30) days’ notice;
(exiv) the Leases;
(f) outstanding Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company guaranty, surety or indemnification, direct or indirect, by Cherry or any of its Affiliates from Subsidiaries; Table of Contents (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(ixv) Contracts that contain (or provide for “most favored nations” terms;
(jgroup of related Contracts) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation which involve the expenditure of more than $1,000.00 annually or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets $1,000.00 in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements aggregate or joint venture agreements that involve a sharing of profits, losses, costs or liabilities require performance by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by party more than one year from the Company for any purpose whatsoeverdate hereof; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 1 contract
Sources: Merger Agreement (Institute for Wealth Holdings, Inc.)
Material Contracts. Section 3.10 3.17(a) of the Company Disclosure Schedule contains a list lists (i) all material Contracts, including all amendments thereto (within the meaning of Item 601(10) of Regulation S-K) of the Company and its subsidiaries that have not been filed as exhibits to the SEC Reports and (ii) each of the following types of Contracts (and each amendment or modification thereto) to which the Company or any Target Company of its subsidiaries is a party:
(i) Contract that purports to limit, curtail or by which such Target restrict the ability of the Company or any of its existing or future subsidiaries or affiliates to compete in any geographic area or line of business or restrict the Persons to whom the Company or any of its existing or future subsidiaries or affiliates may sell products or deliver services;
(ii) Contract relating to the research and development and clinical trials conducted or to be conducted for or on behalf of the Company and its subsidiaries;
(iii) customer Contract providing for or otherwise involving the payment of credits, rebates, discounts or other similar allowances;
(iv) partnership or joint venture agreement;
(v) Contract for the acquisition, sale or lease of material properties or assets are bound(by merger, as purchase or sale of stock or assets or otherwise) entered into since January 1, 2005;
(vi) Contract with any (x) Governmental Authority or (y) director or officer of the date Company or any of this Agreement (such Contracts, together with its subsidiaries or any affiliate of the Intellectual Property Licenses, each, a “Material Contract”):Company;
(avii) Other than Contracts with Material Suppliers and Contracts with Material Customersloan or credit agreement, Contracts mortgage, indenture, note or other Contract or instrument evidencing Indebtedness by the Company or any of its subsidiaries or any Contract or instrument pursuant to which Indebtedness may be incurred or is guaranteed by the Company or any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000its subsidiaries;
(bviii) collective bargaining financial derivatives master agreement or confirmation, or futures account opening agreements and any other contracts with any labor unionsand/or brokerage statements, evidencing financial hedging or similar trading activities;
(cix) Contracts (other than Benefit Plans) for the employment voting agreement, registration rights agreement or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearstockholders agreement;
(dx) Contracts evidencing Indebtedness mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any material property or assets of the Target Companies Company or any of its subsidiaries;
(xi) customer, client or supply Contract that is reasonably likely to involve consideration in fiscal year 2007 or fiscal year 2008 in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(exii) the LeasesContract (other than customer, client or supply Contracts) that involves consideration (whether or not measured in cash) of greater than $250,000;
(fxiii) Contracts with Material Supplierscollective bargaining Contract;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 1 contract
Sources: Merger Agreement (Specialized Health Products International Inc)
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains a list of 3.15(a) lists the following types of Contracts (and each amendment or modification thereto) to which the Company or any Target Company Subsidiary is a party, party or by which such Target Company or its properties or assets are bound, as of the date of this Agreement may be bound (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract” and, collectively, the “Material Contracts”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to notes, debentures, guarantees, loans, credit or financing agreements or instruments, or other Contracts for Indebtedness, including any third party agreements or commitments for future loans, credit or financing, in the twelve (12) month period prior to the date hereof, each case in excess of $500,000; or , other than any of the foregoing relating to any intercompany indebtedness;
(ii) received leases, rental or occupancy agreements, installment and conditional sale agreements, and other Contracts affecting the ownership of, leasing of, title to or other interest in, any tangible personal property or real property involving individual annual payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,00040,000;
(biii) collective bargaining material joint venture, partnership or limited liability company agreements and any other contracts with any labor unionsinvolving a share of profits, losses, costs or liabilities;
(civ) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee license agreement or other Person on a full-time, part-time, consulting, independent contractor Contract relating to Intellectual Property involving individual annual payments by or other basis that provide annual cash compensation to the Company in excess of $150,000 per year100,000 and any consulting agreement relating to research and development or outsourced technology services;
(dv) Contracts evidencing Indebtedness between the Company or a Company Subsidiary, on the one hand, and Seller or any director, officer or Affiliate of Seller, the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from Company Subsidiary, on the other hand (other than (i) engaging in any line of business or geographic region with any Person, employment arrangements and (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to customary non-disclosure agreements and assignment of confidential or proprietary information agreements, in each case, entered into in connection therewith (other than sales of assets in the ordinary course of business);
(lvi) all Contracts providing for under which the settlement Company or a Company Subsidiary is or may become obligated to pay any amount in respect of deferred or conditional purchase price (other than ordinary trade terms), indemnification obligations, purchase price adjustment or otherwise in connection with any (x) acquisition or disposition of all or substantially all of the assets or securities constituting a line of business of any material ProceedingPerson, (y) merger, consolidation or other business combination, or (z) series or group of related transactions or events of a type specified in subclauses (x) and (y);
(mvii) limited liability company agreements, partnership agreements, Tax Sharing Agreements all Contracts (including options) to sell or joint venture agreements that involve otherwise dispose of any assets having a sharing fair market value in excess of profits, losses, costs or liabilities by any Target Company with any $250,000 other Person.than in the ordinary course of business;
(nviii) outstanding powers-of-attorney granted by Contracts under which a party provides products or services to the Company or any Company Subsidiary on an exclusive basis for any purpose whatsoeveran amount reasonably likely to exceed aggregate annual payments of $2,000,000 that cannot be terminated without penalty upon less than 90 days’ notice; and
(oix) Contracts related to capital projects and capital expenditures agreements containing (A) covenants presently limiting, in excess any material respect, the ability of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required or any Company Subsidiary to disclose on Section 3.17(acompete with any Person in any line of business or in any area or territory or (B) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract provisions granting any Person “most favored nation” status.
(including all modifications, amendments and supplements thereto and waivers thereunder). b) Each Material Contract is in full force and effect and is represents a legally valid and enforceable against binding obligation of the applicable Target Company and, to or the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that Subsidiary which is a party to a Material Contract is in compliance in all material respects with thereto. Except for such exceptions as would not be material, as of the terms Agreement Date, (i) each of the Company and requirements of such Material Contract and, the Company Subsidiaries (and to the Company’s KnowledgeKnowledge of Seller, each other Person that party thereto) has performed all obligations required to be performed by it under each of the Material Contracts to which it is a party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither (ii) neither the Company nor, nor any Company Subsidiary (and to the Company’s KnowledgeKnowledge of Seller, any each other party thereto, ) is in breach of or default under (or is alleged to be in breach violation of, or default under), any of the Material Contracts to which it is a party, nor has the Company or any Company Subsidiary received any written notice that it has breached or violated any of the Material Contracts to which it is a party. The Company has neither provided nor received completion of the transactions contemplated in this Agreement will not cause or result in any notice material breach or material default of a Material Contract, or in the acceleration of, or material increase in, the amount of any intention to terminate payment arising under any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Riddell Bell Holdings, Inc.)
Material Contracts. (a) Section 3.10 5.13(a) of the Disclosure Schedule contains a list sets forth, by reference to the applicable subsection of this Section 5.13(a), all of the following types of Contracts (and each amendment or modification thereto) in force to which any Target Company Seller is a party, party or by which such Target Company the assets or its properties or assets of any Seller are bound, as of the date of this Agreement bound (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(ai) Other than Contracts with Material Suppliers and any current officer, director, shareholder, member or Affiliate of any Seller;
(ii) Contracts with Material Customers, any labor union or association representing any Employee;
(iii) Contracts pursuant to which for the sale of any Target Company (i) made payments of the assets of any Seller other than the sale of inventory in the Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase or use any of its assets;
(iv) Contracts regarding the distribution of any products;
(v) Contracts with any customer of any Seller;
(vi) Contracts providing for sales and marketing assistance, including Contracts with third party parties who supply customers of the Business directly or indirectly;
(vii) Contracts for joint ventures, strategic alliances, partnerships, or other similar Contracts which involve a sharing of revenues, profits, losses, costs, Liabilities or proprietary information by any Seller with any other Person;
(viii) Contracts containing covenants of any Seller not to compete in the twelve any line of business or with any Person in any geographical area or not to solicit or hire any Person with respect to employment or covenants of any other Person not to compete with any Seller in any line of business or in any geographical area or not to solicit or hire any Person with respect to employment or granting any exclusive rights or licenses with respect to any Intellectual Property or Technology;
(12ix) month period prior Contracts relating to the date hereofacquisition (by merger, purchase of stock or assets or otherwise) by any Seller of a business, material assets or the capital stock of any other Person;
(x) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of any Seller, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(xi) purchase Contracts giving rise to Liabilities of any Seller in excess of $500,000; or (ii) received payments from any third party 20,000, other than inventory purchase orders in the twelve Ordinary Course of Business;
(12xii) month prior Contracts providing for payments by or to the date hereof, any Seller in excess of $500,00020,000 in any fiscal year or $50,000 in the aggregate during the term thereof, except purchase orders and customer orders in the Ordinary Course of Business;
(bxiii) collective bargaining agreements and Contracts obligating any other contracts Seller to provide or obtain products or services for a period of one (1) year or more, requiring any Seller to purchase or sell a stated portion of its requirements or outputs, or Contracts otherwise involving fixed price or fixed volume arrangements not entered into in the Ordinary Course of Business consistent with any labor unionspast practice;
(cxiv) Contracts under which any Seller has made advances or loans to any other Person except for advances in the Ordinary Course of Business to Employees not hired by Purchaser at the Closing;
(xv) Contracts providing for severance, retention, change in control or other than Benefit Planssimilar payments;
(xvi) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide providing annual cash compensation in excess of $150,000 per year50,000;
(dxvii) management Contracts and Contracts with independent contractors or consultants (or similar arrangements) that are not cancelable without penalty or further payment and without more than thirty (30) days’ notice;
(xviii) Contracts evidencing Indebtedness of guaranty, surety or indemnification, direct or indirect, by any Seller, and Contracts containing an agreement to indemnify any other Person against any claim of infringement, unauthorized use, misappropriation, dilution or violation of Intellectual Property or Technology;
(xix) Contracts (or group of related Contracts) which require performance by any party more than one (1) year from the date hereof other than disclosed in Section 5.13(a) of the Target Companies Disclosure Schedule in excess regard to any other subsection of this Section 5.13(a);
(xx) any license or royalty Contract or any other Contract (including Intellectual Property Licenses) relating to any Intellectual Property or Technology (excluding licenses pertaining to “off-the-shelf” commercially available Software used pursuant to shrink-wrap or click-through license agreements on reasonable terms for a license fee of no more than $50,00010,000);
(xxi) Contracts providing for bonuses, including any loan profit sharing, pension, retirement, other form of deferred compensation, collective bargaining or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or the like;
(xxii) Contracts pursuant to which any Target Company Seller has guaranteed any liabilities agreed to provide “most favored nation” pricing or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with similar terms and conditions to any Person;
(ixxiii) Contracts providing for royalties or similar payments based on the revenues or profits of the Business taken as a whole;
(xxiv) Contracts that contain require a consent to, or provide for “most favored nations” termsthat would prohibit or delay the consummation of the transactions contemplated by, this Agreement, excluding any Restricted Immaterial Contracts and any vendor Contracts that are not otherwise Material Contracts and are between/among any Seller and a vendor with which Purchaser or one of its Affiliates enjoys a pre-existing relationship;
(jxxv) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverBody; and
(oxxvi) Contracts related that are otherwise material to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aany Seller.
(b) Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against binding obligation of the applicable Target Company and, to the Company’s Knowledge, Seller and the other parties thereto thereto, enforceable against each of them in accordance with their termsits terms and, upon consummation of the transactions contemplated by this Agreement, the Purchased Contracts shall, except to as otherwise stated in Section 5.13(b) of the extent enforcement may be affected by Enforceability ExceptionsDisclosure Schedule, continue in full force and effect without penalty or other adverse consequence following the Closing. Each Target Company that is a party to a For the avoidance of doubt, any non-binding pricing arrangements or other non-binding understandings with customers and suppliers of Sellers do not constitute Material Contract Contracts. No Seller is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such default under any Material Contract. Neither the Company , nor, to the Company’s KnowledgeKnowledge of Sellers, is any other party thereto, is to any Material Contract in breach of or default under (thereunder, and no event has occurred that, with the lapse of time or is alleged to be in the giving of notice, or both, would constitute a breach or default under)by any Seller or any other party thereunder. The Company No party to any of the Material Contracts has neither provided nor received exercised any termination rights with respect thereto, and as of the date hereof no such party has given notice of any intention significant dispute with respect to terminate any Material Contract. To Each Seller has, and will assign to Purchaser at the Company’s KnowledgeClosing, no Occurrence has occurred good and valid title to the Material Contracts to which such Seller is a party that are Purchased Contracts, free and clear of all Liens other than Permitted Exceptions. Sellers have Delivered to Purchaser true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereundersupplements thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Core-Mark Holding Company, Inc.)
Material Contracts. Section 3.10 of the Disclosure Schedule contains a list SCHEDULE 4.15 sets forth all of the following types of Contracts (and each amendment or modification thereto) which are currently in effect to which any Target the Company is a party, party or by which such Target Company or its properties or assets are boundit is bound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”"MATERIAL CONTRACTS"):
(a) Other than Contracts with Material Suppliers and any Seller or any current officer, director, employee or consultant of the Company or with any Affiliate of such Persons; (b) Contracts with Material Customers, any labor union or association representing any employee of the Company; (c) Contracts pursuant to which any Target the Company (i) made payments is required to any third party in the twelve (12) month period prior purchase or sell a stated portion of its requirements or output from or to the date hereof, in excess of $500,000another party; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of for the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations sale of any of Person;
the assets of the Company other than in the ordinary course of business or for the grant to any Person of any preferential rights to purchase any of its assets; (e) the Leases;
joint venture agreements; (f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant covenants of a Target the Company that restricts a Target Company or any of its Affiliates from (i) engaging not to compete in any line of business or geographic region with any Person, Person in any geographical area or covenants of any other Person not to compete with the Company in any line of business or in any geographical area; (iig) soliciting Contracts relating to the acquisition by the Company of any customers, suppliers, employees operating business or contractors the capital stock of any other Person, or ; (iiih) competing with any Person;
Contracts relating to the borrowing of money; (i) Contracts that contain under which the Company acts as a distributor, dealer or provide for “most favored nations” terms;
franchiser; (j) all Contracts with any Governmental Authority;
concerning a partnership, joint venture, joint development or other similar cooperation arrangement; (k) all confidentiality and non-disclosure Contracts entered into in connection with (other than standard non-disclosure forms signed by employees generally, examples of which have been provided to Purchaser); (l) all Contracts under which the Company has advanced or loaned funds to any mergerPerson, consolidation or including employees of the Company (other business combination, or than those with respect to the acquisition travel, entertainment or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets expenses incurred in the ordinary course of businessbusiness advanced to active employees made in the ordinary course of business and consistent with past practices and which are presently deductible under the Code as business expenses);
(l) Contracts providing for the settlement of any material Proceeding;
; (m) limited liability company agreements, partnership agreements, Tax Sharing Agreements all Contracts under which the Company has guaranteed any indebtedness or joint venture agreements that involve a sharing obligation of profits, losses, costs or liabilities by any Target Company with any other Person.
; (n) outstanding powersall Contracts with distributors, sales representatives, dealers or other Persons (other than customers who are end-of-attorney granted by users of such products) relating to the distribution, sale or supply of products of the Company for any purpose whatsoever; and
or (o) Contracts related to capital projects and capital expenditures in excess any other Contract, other than Real Property Leases, which involves the expenditure of more than $100,000 individually 25,000 annually or $250,000 in requires performance by any party more than one year from the aggregatedate hereof. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has There have been made available to Purchaser the Purchaser, its Affiliates and their Representatives true and complete copies of each all of the Material Contract (including Contracts. Except as set forth on SCHEDULE 4.15, all modifications, amendments of the Material Contracts and supplements thereto and waivers thereunder). Each Material Contract is other agreements are in full force and effect and is are the legal, valid and binding obligation of the Company, enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto it in accordance with their its terms, except subject to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors' rights and remedies generally and subject, as to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract andenforceability, to the Company’s Knowledgegeneral principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Except as set forth on SCHEDULE 4.15, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company is not in default in any material respect under any Material Contracts, nor, to the Company’s Knowledgeknowledge of either Shareholder, is any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of default thereunder in any material benefit thereunderrespect.
Appears in 1 contract
Sources: Stock Purchase Agreement (United Stationers Supply Co)
Material Contracts. Section 3.10 3.12 of the Disclosure Schedule contains sets forth a true, correct and complete list of all Contracts of the following types of Contracts (and each amendment or modification thereto) to for which any Target a Company Entity is a party, party or by which such Target Company any of its assets or its properties (including, without limitation, the Real Property) are bound or assets are bound, as of the date of this Agreement subject (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts any Contract with Material Suppliers and Contracts with Material Customers, Contracts pursuant any customer or supplier set forth or required to which any Target Company be set forth on Section 3.13 of the Disclosure Schedule (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000excluding executory purchase orders);
(b) collective bargaining agreements and any other contracts with any labor unionsContract or group of related Contracts requiring a capital expenditure or commitment in excess of $50,000 per annum;
(c) Contracts any Contract providing for the sale, lease, license or other disposition by any of the Company Entities of any assets or properties (including, without limitation, any Real Property, Technology or Intellectual Property) to another Person outside of the ordinary course of business (other than Benefit Plans) for the employment any such asset that is obsolete, surplus, damaged or engagement of any officer, employee or other Person on a fullworn-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearout);
(d) Contracts evidencing Indebtedness any Contract providing for the purchase, lease, license or acquisition by any of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations Entities of any assets or properties (including, without limitation, any Real Property, Technology or Intellectual Property) from another Person outside the ordinary course of business or of any business or equity interests from another Person, in each case, whether by merger, consolidation, equity sale, asset sale or otherwise;
(e) the Leasesany Contract providing for any merger, consolidation, restructuring, reorganization, recapitalization, conversion or other similar transaction or arrangement;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company Contract that restricts a Target Company or any of its Affiliates from (i) engaging limits or purports to limit, in any material respect, the ability of any Company Entity to engage in or compete in any line of business or geographic region with any Person, (ii) soliciting to conduct activity in any customers, suppliers, employees geographic area or contractors during any period of any other Persontime, or to solicit any Person to enter into a business or employment relationship (iii) competing with any Person;
(i) Contracts that contain other than confidentiality or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith the ordinary course of business), (ii) contains exclusivity obligations, or (iii) contains a “most favored nation”, performance guaranty or other than sales of assets provision in which pricing, discounts or benefits are based on those provided to another Person;
(g) any Contract providing for any indemnification or warranty by any Company Entity, except for customary commercial product warranties pursuant to Contracts entered into in the ordinary course of business);
(h) any Contracts relating to (i) any Indebtedness of any Company Entity, (ii) any letters of credit, bankers’ acceptances, performance bonds, sureties, guaranties, credit support or other similar obligations of any Company Entity or (iii) hedging arrangements designed to protect against fluctuations in interest rates, currency rates or commodity prices (including any interest or currency rates swaps and commodity forwards) of any Company Entity;
(i) any Contract under which the Company Entities have advanced or loaned any other Person any amounts, except for any trade credit in connection with account receivables arising in the ordinary course of business;
(j) any Contract relating to the employment or engagement of any Current Employee or any individual consulting, sales agency, sales representative or independent contractor (i) with an annual base salary or fees that are (or are expected in 2021 to be) in excess of $145,000, or (ii) that cannot be terminated at any time without notice for any or no reason and without severance, penalty or any other Losses;
(k) any Contract providing for any lease of Real Property by any Company Entity to another Person or any easement or other rights of use or occupancy by either Company to another Person;
(l) Contracts providing for the settlement any Contract under which any Company Entity is lessor of personal property, or permits any material Proceedingthird party to hold or operate any personal property owned or controlled by it which involves consideration in excess of $100,000;
(m) limited liability company agreementsany material broker, partnership agreementsdistributor, Tax Sharing Agreements or joint venture agreements that involve a sharing of profitsdealer, lossesmanufacturer’s representative, costs or liabilities by any Target Company with any other Person.franchise, agency, marketing and advertising Contracts;
(n) outstanding powers-of-attorney granted by other than and excluding licenses for generally available commercial Software products supplied under end user licenses and licenses with an annual or total fee of less than $100,000, any Contract that grants a license or interest (including any covenant, release, immunity or other right) in any Owned Intellectual Property or Owned Technology or that relates to the Company for acquisition, transfer, use, development, sharing or license or grant of any purpose whatsoever; andother right in any material Technology or Intellectual Property;
(o) Contracts related any Contract relating to capital projects and capital expenditures a Related Party Arrangement;
(p) any Contract (other than the Company Options set forth on the Option Schedule) providing for the payment of any cash or other compensation or benefits upon or in connection with (whether alone or in conjunction with any other event or circumstance) the sale of all or a material portion of any of the Company Entities’ assets outside the ordinary course of business or a change of control of any of the Company Entities, including pursuant to the transactions contemplated by this Agreement;
(q) any Contract involving the settlement or compromise of any Action or threatened Action that contain (A) any outstanding monetary obligations, individually or in the aggregate, in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses (B) any non-monetary obligations that would be material to the Company Entities;
(r) any Contract with any Governmental Entity;
(s) any Contract under which any Company Entity provides or receives any rebates in excess of $100,000;
(t) any Contract relating to any joint venture, partnership, joint development or other similar arrangements between any Acquired Company and any other Person; and
(u) any Contract reasonably expected to result in future payments, fees or other consideration to or by any Company Entity in excess of $100,000, except for Contracts (excluding executory purchase orders) that are terminable on less than ninety (90) days’ notice without penalty or termination fee. Neither the Company Entities nor, to the knowledge of the Company, any other party, is not required in, or has received written notice of any, material violation of or default under (including any condition that with the passage of time or the giving of notice would cause such a material violation or default under) any Material Contract. The Sellers have made available to disclose on Buyer a true, correct and complete copy of each Material Contract. Except as set forth in Section 3.17(a) 3.12 of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid valid, binding and enforceable against the applicable Target Company Entities party thereto and, to the knowledge of the Company’s Knowledge, the other party or parties thereto in accordance with their its terms, except to the extent enforcement as such may be affected limited by Enforceability Exceptions. Each Target Company that bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other Laws affecting creditors’ rights generally and by general equitable principles, whether such enforceability is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result considered in a termination thereof proceeding in equity or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderat Law.
Appears in 1 contract
Sources: Securities Purchase Agreement (Sensata Technologies Holding PLC)
Material Contracts. Except as disclosed in Section 3.10 2.15 of the Target Disclosure Schedule contains a list Memorandum or otherwise reflected in the Target Financial Statements, none of the following types Target Entities, nor any of Contracts their respective Assets, businesses, or operations, is a party to, or is bound by, or receives benefits under, (and each amendment i) any employment, severance, termination, consulting, or modification theretoretirement Contract, (ii) any Contract relating to which the borrowing of money by any Target Company is Entity or the guarantee by any Target Entity of any such obligation (other than Contracts evidencing trade payables and Contracts relating to borrowings or guarantees made in the ordinary course of business), (iii) any Contract which prohibits or restricts any Target Entity from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (iv) any Contract involving Intellectual Property (other than "shrink-wrap" software licenses), (v) any Contract relating to the purchase or sale of any goods or services (other than Contracts entered into in the ordinary course of business and involving payments under any individual Contract not in excess of $100,000), (vi) any Contract with independent contractors, railroads, shipping companies, distributors, dealers, manufacturers' representatives, sales agents or franchisees involving an annual payment to or from Target of $100,000 or more, (vii) any Contract relating to any (1) merger, consolidation or combination with any Person, (2) any sale, dividend, split or other disposition of any capital stock or other equity interests of any Person, (3) any tender offer (including without limitation a partyself-tender), exchange offer, recapitalization, liquidation, dissolution or similar transaction, (4) any sale, dividend or other disposition of all or a material portion of the Assets and Operating Properties of any Person or (5) the entering into of any agreement or understanding, or the granting of any rights or options, with respect to any of the foregoing ((1) through (5) collectively referred to herein as a "Business Combination"), (viii) any Contract between or among Target, on the one hand, and any current or former officer, director, stockholder (including Seller or CTI) or Affiliate of any Target Entity, and (ix) any other Contract or amendment thereto that would be required to be filed as an exhibit to a Form 10-K filed by which such Target Company or its properties or assets are bound, with the SEC as of the date of this Agreement (such Contracts, together with all Contracts referred to in Sections 2.9 and 2.14(a), the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers "Target Contracts"). With respect to each Target Contract and Contracts with Material Customers, Contracts pursuant to which any except as disclosed in Section 2.15 of the Target Company Disclosure Memorandum: (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect effect; (ii) no Target Entity is in Default in any material respect thereunder; (iii) no Target Entity has repudiated or waived any material provision of any such Contract; and is valid and enforceable against the applicable Target Company and(iv) no other party to any such Contract is, to the Company’s KnowledgeKnowledge of Target, in Default in any material respect, or has repudiated or waived any material provision thereunder. All of the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice indebtedness of any intention to terminate Target Entity for money borrowed is prepayable at any Material Contract. To the Company’s Knowledge, no Occurrence has occurred time by such Target Entity without penalty or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderpremium.
Appears in 1 contract
Sources: Stock Purchase Agreement (Intertape Polymer Group Inc)
Material Contracts. (a) The Sellers have made available to the Buyer in the Data Room true and complete copies of the contracts and agreements (whether written or oral), together with all amendments, waivers or changes thereto, to which any Seller or Company Group Member is a party or by which any of them is bound (excluding any contracts or agreements which have been terminated by completion or otherwise and under which no obligations remain outstanding) in any of the following categories (all contracts listed or required to be listed in Section 3.10 3.08 of the Disclosure Schedule contains a list of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such ContractsSchedule, together with the Intellectual Real Property LicensesLeases, eachcollectively, a the “Material ContractContracts”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) contract for the employment or engagement purchase of any officer, employee or other Person on fixed asset for a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies price in excess of $50,000;
(ii) any contract or agreement, or group of contracts or agreements, involving payment of more than $50,000 in any twelve month period relating to the purchase by any Company Group Member of any product or service (excluding services which constitute Seller Transaction Expenses);
(iii) any contract or agreement, or group of related contracts or agreements, for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $50,000;
(iv) any contract not terminable on less than 30 days’ notice without penalty (other than any penalty that would reasonably be expected to be less than $50,000);
(v) any contract limiting any Company Group Member’s or Employee’s freedom to compete in any line of business or with any Person;
(vi) any contract under which any Company Group Member has incurred, assumed or guaranteed Indebtedness in principal amount of more than $50,000 or otherwise placing an Encumbrance on any assets of the Company Group Members;
(vii) any contract for the disposition of any portion of the combined assets or business of the Company Group Members (other than sales of products in the ordinary course of business) or any contract for the acquisition of the assets or business of any other business (other than purchases of inventory or components in the ordinary course of business) or any capital stock or other equity interest of any other Person or any contract relating to any merger, consolidation or reorganization of any Company Group Member with any other Person;
(viii) any bonus, pension, profit sharing, retirement or other form of deferred compensation plan;
(ix) any contract for the employment or retention of any director, officer, trustee, independent contractor, individual employee or other person, including any loan contract with any director, officer, trustee, employee or credit agreementsindependent contractor with respect to change of control payment, promissory notesretention bonus, security agreements, pledge agreements, mortgages, severance or similar letters of creditbenefits or any collective bargaining agreement;
(x) any contract relating to sales, distribution or co-marketing arrangements or that requires the payment of, or pursuant to which any Target Company has guaranteed Group Member is entitled to receive, any liabilities royalties, finders’ fees, commissions or obligations similar payments;
(xi) any PRC Supply Agreement and any other contract with or relating to any outsourced or contract manufacturer;
(xii) any contract providing “most favored” pricing or exclusive rights with respect to the manufacturing, marketing, sale or distribution of any products of any of Personthe Company Group Members;
(exiii) the Leasesany contract containing licenses of any Intellectual Property granted by any Company Group Member;
(fxiv) Contracts with Material Suppliersany contract containing licenses granted to any Company Group Member to the Intellectual Property of any other Person (excluding readily available, off-the-shelf software requiring aggregate payments of less than $50,000);
(gxv) Contracts any power of attorney or agency agreement or arrangement with Material Customers;
(h) Contracts containing any covenant Person pursuant to which such Person is granted the authority to act for or on behalf of a Target any Company that restricts a Target Company Group Member or any Company Group Member is granted the authority to act for or on behalf of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(ixvi) Contracts that contain or provide for “most favored nations” termsany contract with any Major Customer;
(jxvii) Contracts any contract with any Major Supplier;
(xviii) any contract with any Governmental Authority;
(kxix) except for the Organizational Documents of the Company Group Members, any contract involving any joint venture, partnership, strategic alliance, sharing of profits or losses or similar arrangements; and
(xx) any lease or agreement or similar contract under which any Company Group Member is (x) lessee of, or holds or operates, any personal property owned by any other party for which the annual rental exceeds $50,000 or (y) lessor of or permits any third party to hold or operate any personal property.
(b) A true and complete list of the Material Contracts entered into is set forth in connection Section 3.08 of the Disclosure Schedule. The Material Contracts are in full force and effect in accordance with their respective terms. There does not exist a default on behalf (with or without notice, or lapse of time, or both) of any Company Group Member in respect of any Material Contract or, to the Knowledge of the Sellers, a default by any other party thereto. Each Material Contract will continue to be legal, valid, binding and enforceable against the applicable Company Group Member and, to the Knowledge of the Sellers, any other party to such agreements, and in full force and effect on substantially identical terms, immediately following the Closing. No Company Group Member and no other party has repudiated any Material Contract or given any written or, to the Knowledge of the Sellers, oral notice that it intends to terminate any Material Contract.
(c) Each Material Contract that limits any Company Group Member’s freedom to compete in any line of business or with any merger, consolidation Person which is not a Company Group Member Affiliate or other business combination, or that contains any exclusive rights with respect to the acquisition manufacturing, marketing, sale or disposition distribution of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement products of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target the Company Group Members is specifically identified in Section 3.08 of the Disclosure Schedule with any other Personan asterisk.
(nd) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures Except as set forth in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a3.08(d) of the Disclosure Schedule, all of the Company has made available Material Contracts relating to Purchaser true and complete copies of each Material Contract (including all modificationssales, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against distribution or co-marketing arrangements are terminable by the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with Group Member without penalty upon 30 days’ notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderless.
Appears in 1 contract
Sources: Securities Purchase Agreement (Atkore International Holdings Inc.)
Material Contracts. Section 3.10 Schedule 3.8 lists all of the Disclosure Schedule contains a list agreements, contracts (other than contracts implied in law) and commitments (other than agreements, contracts or commitments relating to assets in the investment portfolio of the Company) of the following types of Contracts (and each amendment or modification thereto) to which any Target the Company is a party, party or by which such Target Company it or any of its properties or assets are bound, is bound as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):hereof:
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000collective bargaining agreement;
(b) collective bargaining agreements and any other contracts with any labor unionsemployment, consulting, stay-pay or severance agreement;
(c) Contracts any agreement with any Person containing any provision or covenant currently in effect limiting the ability of the Company to (i) sell any products or services of or to any other than Benefit PlansPerson, (ii) for the employment engage in any line of business, or engagement of (iii) compete with or obtain products or services from any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearPerson;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant leases relating to which any Target Company has guaranteed any liabilities or obligations of any of Personthe Leased Real Property;
(e) any contract or arrangement pursuant to which the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company has made or any of its Affiliates from (i) engaging in any line of business will make loans or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Personadvances, or (iii) competing with any Person;
(i) Contracts that contain has or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation will have incurred debts or other business combination, become a guarantor or surety or pledged its credit on or otherwise become responsible with respect to any undertaking of another (except for the acquisition negotiation or disposition collection of any business, assets or securities, or any equity or debt investment negotiable instruments in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets transactions in the ordinary course of business);
(lf) Contracts providing for any indenture, credit agreement, loan agreement, note, mortgage, security agreement, lease of real property or personal property, loan commitment or other contract or arrangement relating to the settlement borrowing of any material Proceedingfunds, an extension of credit or financing;
(mg) limited liability company agreementsany contract or arrangement involving a partnership, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing or other cooperative undertaking;
(h) any outstanding written proxies, powers of profitsattorney, lossesor similar delegations of the authority of the Company (other than those given in connection with client contracts and those given in the ordinary course of business in connection with customary third party claim servicing agreements);
(i) any agreement (other than employment, costs consulting, stay pay or liabilities by any Target Company severance agreements) with any other Person.present individual officer, director or employee of the Company;
(nj) outstanding powers-of-attorney granted any other agreement, contract or commitment (other than client contracts) which, in any case, requires payments or receipts by a party thereto after the date of this Agreement of more than $250,000 annually;
(k) any client contract relating to the Major Customers as listed on Schedule 3.23; or
(l) any agreement between the Company for and any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) Affiliate of the Disclosure Schedule, the Company Company. Seller has made available to Purchaser Buyer true and complete copies of the items listed in Schedule 3.8 (collectively, the “Contracts”), which constitute all material contracts, agreements and other instruments, oral or written, to which the Company is a party or by which the Company is bound. The Company is not in breach of any material representation, warranty or covenant contained in any Contract, and, to Seller’s knowledge, the Company is not in default with respect thereto. Seller has no knowledge that any other party to any Contract is in breach of any material representation, warranty or covenant contained in such Contract or is claimed to be in default in complying with any provision thereof or has committed or permitted any event which, with or without due notice or lapse of time or both, would constitute such a default. To Seller’s knowledge, each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against binding upon the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their its terms, except and to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the CompanySeller’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledgeknowledge, no Occurrence event has occurred or condition exists which, with notice or lapse of time or both, may give rise to, serve as which constitutes a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes material breach of any right or obligation or the loss of Contract by any material benefit thereunderparty thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Security Capital Corp/De/)
Material Contracts. Section 3.10 Schedule 3.27 sets forth a true and complete list of the Disclosure Schedule contains a list each of the following types of Contracts (and each amendment or modification thereto) to which any Target the Company or the Company Subsidiary is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement party (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which Contract for the employment of any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000officer;
(b) collective bargaining agreements and Contract providing for severance or similar payment to any officer, individual employee, or other contracts with any labor unionsPerson;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation Contract relating to Indebtedness in excess of $150,000 per year100,000 or to the mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens) on any Asset or group of Assets of the Company or the Company Subsidiary;
(d) Contracts evidencing Indebtedness Contract involving the sale of a material amount of accounts receivable of the Target Companies in excess of $50,000, including Company or the Company Subsidiary to any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Personother Person at a discount;
(e) the Leasesguarantee of any obligation for borrowed money or other Indebtedness;
(f) Contracts Contract with Material Suppliersrespect to the lending or investing of a material amount of funds;
(g) Contracts with Material CustomersContract under which the Company or the Company Subsidiary is the lessee of or the holder or operator of any real or material personal property owned by any other Person;
(h) Contracts containing Contract under which the Company is the lessor of or permits any covenant of a Target Company that restricts a Target third Person to hold or operate any real or material personal property owned or controlled by the Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Personthe Company Subsidiary;
(i) Contracts that contain assignment, license, covenant, indemnification or provide for “most favored nations” other agreement with respect to material Intellectual Property or confidential information, with the exception of shrink-wrap, click-wrap, or similar nonexclusive, commercially available software granted to the Company or the Company Subsidiary on standard terms;
(j) Contract or group of related Contracts with the same Person for the sale of Assets or services which generate in excess of $200,000 in revenues in any Governmental Authority12-month period;
(k) Contracts entered into Contract which prohibits, in connection with any mergermaterial respect, consolidation the Company or other the Company Subsidiary from freely engaging in business combination, or with respect anywhere in the world;
(l) Contract relating to the acquisition purchase, distribution, marketing or disposition sales of any business, assets or securities, a material amount of the Company’s or any equity or debt investment in or any loan to any other Person; provided’s products, that the foregoing shall not apply to non-disclosure except for nonexclusive dealer and installer agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for business and containing terms consistent, in all material respects, with the settlement forms of any material Proceedingdealer agreement and installer agreement provided to the Purchaser;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company Contract with any other Person.Affiliate;
(n) outstanding powersContract with (i) any customer or supplier which gives rise to payments in excess of $200,000 in any 12-of-attorney granted by month period and (ii) with the Ford Motor Company for or any purpose whatsoeverof its Affiliates; andor
(o) Contracts related other Contract material to capital projects and capital expenditures in excess the business of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, or the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder)Subsidiary. Each Material Contract (a) is valid, binding and enforceable against the Company or the Company Subsidiary, as the case may be, and, to the Knowledge of the Seller, against each other party thereto, in accordance with its terms, except that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect relating to creditors’ rights and general principles of equity, and (b) is in full force and effect on the date hereof and the Company or the Company Subsidiary, as the case may be, has performed all material obligations required to be performed by it under, and is valid and enforceable against the applicable Target Company not in material default or material breach of in respect of, any Material Contract, and, to the Company’s Knowledge, Knowledge of the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s KnowledgeSeller, no Occurrence event has occurred or exists which, with due notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event such a material default. To the Knowledge of the Seller, each other party to each Material Contract has performed all material obligations required to be performed by it under, and is not in material default under or material breach of in respect of, any Material Contract and, to the Knowledge of the Seller, no event has occurred which, with due notice or result in lapse of time or both, would constitute such a termination thereof or would cause or permit material default. There has been made available to the acceleration Purchaser (i) a true and complete copy of each of the Material Contracts, together with all amendments, waivers or other changes thereto, and (ii) a true and correct description of any right or obligation all material oral Contracts to which the Company or the loss Company Subsidiary is a party or by which any of any their respective material benefit thereunderAssets may be bound.
Appears in 1 contract
Sources: Stock Purchase Agreement (Clean Energy Fuels Corp.)
Material Contracts. Section 3.10 of (a) Except for the Disclosure contracts specifically identified in Schedule contains 7.17(a), neither the Company nor any Subsidiary is a list party to or bound by any of the following types of Contracts written contracts, other than contracts which have already been fully performed (and each amendment or modification theretovollständig erfüllt) in relation to which any Target Company is a party, or the main obligations (Hauptleistungspflichten) by which such Target Company or its properties or assets are bound, as of the date of this Agreement all parties thereto (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(ai) Other agreements relating to the acquisition or sale of interests in other companies, businesses or real estate; 2813477 SV\1613529.24
(ii) any distributor, original equipment manufacturer, reseller, sales, advertising, agency or manufacturer’s representative contract involving in the case of any such contract a minimum annual payment obligation of the Company or any Subsidiary in excess of EUR 100,000;
(iii) agreements that require shareholder or supervisory board approval under applicable law or the rules of procedure of any Group Company;
(iv) any contract for the purchase, sale or license of materials, supplies, equipment, services, software, IP Rights or other assets involving in the case of any such contract a consideration of more than Contracts EUR 100,000 over the life of the contract;
(v) any mortgage, promissory note, factoring agreement, loan agreement or other contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with Material Suppliers IFRS and Contracts with Material Customers, Contracts all other agreements for the incurrence of any long term or short term financial indebtedness and obligations (and incurrence of any obligation to that effect);
(vi) rental- or lease agreements relating to fixed or current assets and real property and any contract pursuant to which the Company or any Target Subsidiary is a lessor or lessee of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving in the case of any such contract a minimum annual payment obligation or claim of the respective Group Company in excess of EUR 100,000;
(ivii) made payments agreements providing for the purchase or sale of fixed assets with a value of EUR 100,000 or more;
(viii) any guarantees, suretyships (Bürgschaften), letters of comfort (Patronatserklärungen), indemnification obligations (Freistellungsverpflichtungen), assumption of debt (Schuldübernahme), or any similar commitment with respect to, the liabilities or indebtedness of another Group Company or any third party;
(ix) (A) any joint venture contract, partnership- or shareholder agreement, (B) any contract that involves a sharing of revenues, profits, cash flows, expenses or losses with another Group Company or any third party or (C) any contract that involves the payment of royalties to another Group Company or any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000EUR 100,000 per annum;
(bx) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for that limit or purport to limit the employment or engagement freedom of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant Group Company to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging compete in any line of business or geographic region business, with any Personthird party, (ii) soliciting in any customers, suppliers, employees geographic area or contractors during any period of any other Person, or (iii) competing with any Persontime;
(ixi) Contracts that contain or agreements which provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into of the following in connection with any mergerchange of control of any Group Company: (a) any consent requirement, consolidation (b) the termination or modification of the agreement or a right of the other business combinationparty to terminate, modify or renegotiate the agreement, (c) any option or similar 2813477 SV\1613529.24 right of the other party or (d) any other disadvantage for any Group Company, including any acceleration of any payment to, or right of, any third party;
(xii) any in-license agreement or out-license agreements with respect to the acquisition third parties;
(xiii) agreements with sales representatives (Handelsvertreter), distributors (Eigenhändler), commission agents (Kommissionäre) and other sales representatives or disposition of any business, assets consultancy agreements;
(xiv) agreements or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall commitments not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets made in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(oxv) Contracts related to capital projects and capital expenditures any other agreements providing for a minimum annual payment obligation or claim of the respective Group Company in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aEUR 100,000.
(b) of the Disclosure Schedule, the Company has made available to Purchaser true True and complete copies of each all Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder)Contracts have been delivered to the Purchaser prior to the Signing Date. Each All Material Contract is Contracts are in full force and effect (and is valid to the Sellers' Knowledge comply with applicable law and enforceable against the applicable Target regulation and all conditions precedent provided for their effectiveness have been satisfied). No notice of termination has been received by any Group Company with respect to any Material Contract, and, to the Company’s Knowledgeexcept as disclosed in Schedule 7.17(a), none of the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target any Material Agreement has indicated to a Seller or any Group Company that is a party it intends to terminate a Material Contract is in compliance in all material respects or terminate or reduce its business dealings with the terms and requirements of such Material Contract and, to the any Group Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the any Group Company nor, to the Company’s Sellers’ Knowledge, any other party thereto, to any Material Contract is in default or breach under any such agreement. Neither the execution of or default under (or is alleged to be in this Agreement nor the consummation of the transactions contemplated hereby will constitute a breach or default under). The Company has neither provided nor received any notice of any intention to terminate , or result in the termination or modification of, any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 1 contract
Sources: Share Purchase and Transfer Agreement (Integrated Device Technology Inc)
Material Contracts. Section 3.10 2.6(a) of the Equityholder Disclosure Schedule contains Schedules sets forth a correct and complete list of all of the following types of Contracts (and each amendment or modification thereto) to which any Target the Company is a partyparty (collectively, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts Any: (i) Contract under which the Company sold or purchased (or agreed to sell or purchase) products or services pursuant to which any Target Company the aggregate payments due to or from the Company, respectively, during the one (i1) made payments to any third party in the twelve (12) month year period prior to preceding the date hereofof this Agreement was equal to or exceeded twenty-five thousand dollars ($25,000); (ii) sales or billing and invoices to prospects or customers under which the Company has not received a formal sales contract or purchase order for equipment, in excess software and/or services that provides for payment of at least twenty-five thousand dollars ($500,00025,000); or (iiiii) received payments from any third party in the twelve Contract providing for aggregate marketing expenses of at least twenty-five thousand dollars (12) month prior to the date hereof$25,000), in excess of $500,000on a one-time or recurring basis;
(b) collective bargaining agreements any Contract for the employment of any employee of the Company (including severance, retention or related Contracts), which shall, for the avoidance of doubt, include offer letters and any other contracts with any labor unionssimilar documents;
(c) Contracts (other than Benefit Plans) for any Contract under which the employment Company has agreed to indemnify any third Person with respect to, or engagement to otherwise share, the Liability of any officer, employee or other third Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearfor Taxes;
(d) Contracts evidencing Indebtedness any Contract (or group of related Contracts) involving a commitment by the Target Companies in excess Company to make a capital expenditure or leasehold improvement or series of capital expenditures or leasehold improvements or to purchase any capital asset(s) involved more than ten thousand dollars ($10,000) individually or fifty thousand dollars ($50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person) in the aggregate;
(e) any Contract that contains a covenant not to compete that limits or will limit the LeasesCompany from engaging in its business, as currently conducted or planned to be conducted, in any geographic market;
(f) Contracts with Material Suppliersany Real Property Lease or Personal Property Lease;
(g) Contracts with Material Customersany Contract establishing or agreeing to establish a partnership or joint venture;
(h) any asset purchase agreements, stock purchase agreements, and other acquisition or divestiture agreements, including any Contracts containing any covenant of a Target Company that restricts a Target Company relating to the sale, lease or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors disposal of any other Personmaterial properties or assets of the Company, or for consideration in excess of one thousand dollars (iii) competing with any Person$1,000);
(i) Contracts that contain or provide for “most favored nations” termsany Contract relating to Indebtedness, other than trade payables to suppliers of the Company incurred in the ordinary course of business consistent with past practice;
(j) Contracts with any Governmental AuthorityContract under which the Company has directly or indirectly guaranteed any Liabilities of another Person;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or collective bargaining agreement;
(l) any Contract with respect to the acquisition or disposition issuance of any business, assets or securities, or any equity or debt investment in or securities of the Company;
(m) any loan to any Person; provided, that the foregoing shall other material Contract not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets made in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.; and
(n) outstanding powers-of-attorney granted by any commitments or Contracts to enter into any of the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures foregoing. Except as set forth in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a2.6(b) of the Equityholder Disclosure ScheduleSchedules, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modificationsis a legally valid and binding obligation of the Company, amendments enforceable against the Company in accordance with its terms, and, to the Knowledge of the Company, is a legally valid and supplements thereto binding obligation of the counterparty thereto, enforceable against such counterparty in accordance with its terms, subject, in each such case, to the Equitable Exceptions, and waivers thereunder). Each Material Contract is in full force and effect effect. Except as set forth in Section 2.6(c) of the Equityholder Disclosure Schedules: (i) the Company is not breach of, or default under, any Material Contract; and is valid and enforceable against the applicable Target Company and, (ii) to the Company’s Knowledge, the other parties thereto in accordance with their terms, except no counterparty to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a any Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of thereof or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder.
Appears in 1 contract
Sources: Merger Agreement (Data Storage Corp)
Material Contracts. (a) Schedule 5.15(a) sets forth, by reference to the applicable subsection of this Section 3.10 of the Disclosure Schedule contains a list 5.15(a), all of the following types of Contracts (and each amendment or modification thereto) to which any Target Company Seller or any of the Acquired Subsidiaries is a party, party or by which such Target Company any of them or its their respective assets or properties or assets are boundbound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Real Property Lease, Personal Property Lease or Intellectual Property License;
(ii) Contracts with Material Suppliers and Shareholder or any of its Affiliates or any current or former officer, director, equity holder, manager, member or Affiliate of any Seller or any of the Acquired Subsidiaries;
(iii) Contracts with Material Customers, any labor union or association representing any Employee;
(iv) Contracts pursuant to which for the sale of any Target Company (i) made payments of the assets of Sellers or any of the Subsidiaries other than in the Ordinary Course of Business or for the grant to any third party Person of any preferential rights to purchase any of its assets including all Contracts that require a Seller to purchase or sell a stated portion of the requirements or outputs of such Seller or that contain “take or pay” provisions;
(v) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information;
(vi) Contracts containing covenants of any Seller or any of the Acquired Subsidiaries not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any Person with respect to employment or covenants of any other Person not to compete with any Seller or any of the twelve Acquired Subsidiaries in any line of business or in any geographical area or not to solicit or hire any Person with respect to employment;
(12vii) month period prior Contracts relating to the date hereofacquisition (by merger, purchase of equity or assets or otherwise) by any Seller or any of the Acquired Subsidiaries of any operating business or material assets or the capital stock of any other Person or any real property;
(viii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of Sellers, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(ix) purchase Contracts giving rise to Liabilities of any Seller or any of the Acquired Subsidiaries in excess of $500,000; 50,000;
(x) all Contracts providing for payments by or (ii) received payments from to any third party in Seller or any of the twelve (12) month prior to the date hereof, Acquired Subsidiaries in excess of $500,00020,000 in any fiscal year or $60,000 in the aggregate during the term thereof that are not cancellable without penalty, fees or other payment without more than 30 days’ notice;
(bxi) collective bargaining agreements and any other contracts with any labor unionsContracts providing for the purchase, distribution or sale of lubricant products by Sellers;
(cxii) Contracts providing for severance, retention, change in control or other similar payments;
(other than Benefit Plansxiii) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide annual cash compensation in excess of $150,000 per yearbasis;
(dxiv) material management Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan and Contracts with independent contractors or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, consultants (or similar letters of credit, arrangements) that are not cancelable without penalty or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Personfurther payment and without more than 30 days’ notice;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(jxv) Contracts with any Governmental AuthorityBody;
(kxvi) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition powers of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business)attorney currently effective and outstanding;
(lxvii) outstanding Contracts providing for of guaranty, surety or indemnification, direct or indirect, by any Seller or any of the settlement of any material ProceedingAcquired Subsidiaries;
(mxviii) limited liability company agreements, partnership agreements, Tax Sharing Agreements Contracts that are otherwise material to Sellers and the Acquired Subsidiaries or joint venture agreements that involve a sharing the operation of profits, losses, costs or liabilities by any Target Company with any other Personthe Business and are not previously disclosed pursuant to this Section 5.15.
(nb) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) Each of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract Contracts is in full force and effect and is the legal, valid and enforceable against binding obligation of the applicable Target Company andSeller or Acquired Subsidiary which is a party thereto, to the Company’s Knowledge, and of the other parties thereto enforceable against each of them in accordance with their termsits terms and, upon consummation of the Transactions, shall, except to the extent enforcement may be affected by Enforceability Exceptionsas otherwise set forth on Schedule 5.15(b), continue in full force and effect without penalty or other adverse consequence. Each Target Company that is a party to a Material Contract No Seller nor any Acquired Subsidiary is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such default under any Material Contract. Neither the Company , nor, to the Company’s KnowledgeKnowledge of Sellers, is any other party thereto, is to any Material Contract in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledgethereunder, and no Occurrence event has occurred or exists which, that with notice or the lapse of time or both, may give rise to, serve as a basis for, the giving of notice or both would constitute an event a breach or default by Sellers, any Acquired Subsidiary or any other party thereunder. Except as set forth on Schedule 5.15, no party to any of default under the Material Contracts has exercised any termination rights with respect thereto, and no party has given notice of any significant dispute with respect to any Material Contract to Seller. Sellers have delivered to Purchasers true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications 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 material benefit thereundersupplements thereto.
Appears in 1 contract
Material Contracts. (a) Section 3.10 3.11 of the Company Disclosure Schedule contains Letter set forth a list of each of the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from Subsidiaries is a party, and which are in effect as of the date hereof or by which the Company or any of its Subsidiaries is currently bound (“Material Contracts”):
(1) any Contract providing for payments by or to the Company, and any Contract (whether or not active) involving outstanding Liabilities, in each case in an aggregate amount per annum of US$100,000 or more;
(2) any distributor, reseller or similar agreement, or any Contract providing for the grant of rights to license, market or sell its products or services to any other Person of more than US$100,000 annually;
(3) (i) engaging in any line of business or geographic region with any Personjoint venture Contract, (ii) soliciting any customersContract (other than with respect to sales commissions under Contract with employees) that involves a sharing of revenues, suppliersprofits, employees cash flows, expenses or contractors of any losses with other PersonPersons, or (iii) competing with any Contract that involves the payment of royalties to any other Person;
(i4) Contracts that contain any Contract pursuant to which any other party is granted exclusive rights or provide for “most favored nationsparty” terms;
(j) Contracts rights of any type or scope, or volume discounts, volume minimum commitments or guarantees, with respect to any Governmental Authority;
(k) Contracts entered into in connection with of the Company Products or Company Intellectual Property, or containing any mergernon-competition covenants, consolidation covenants not to sue, or other business combination, restrictions or prohibitions imposed on the Company with respect to the acquisition or disposition Company’s business practices (including the sale and distribution of any businessproducts or services or the purchase of any software or services), assets the Company Products or securitiesCompany Owned Intellectual Property or that would bind, or any equity purport to bind, the Company or debt investment in or any loan Purchaser post-Closing to any Person; providedsuch non-competition covenants, that covenants not to sue, or other restrictions or prohibitions, excluding in each case restrictions or prohibitions imposed by Applicable Laws (such as export control and embargo countries);
(5) All licenses, sublicenses and other Contracts to which the foregoing shall not apply Company is a party and pursuant to which the Company acquired or is authorized to use any Third-Party Intellectual Property Rights used in the development, marketing or licensing of the Company Products, other than “shrink wrap,” “click wrap,” or “browse-wrap” and similar generally available commercial end-user licenses to software;
(6) any Contract providing for the development of any Software, technology or Intellectual Property Rights, independently or jointly, either by or for the Company (other than employee invention assignment agreements and written consulting agreements with Authors on substantially the Company’s standard form of agreement and “shrink wrap,” “click wrap,” or “browse-wrap” and similar generally available commercial end-user licenses to software);
(7) any confidentiality, secrecy or non-disclosure agreements Contract other than any such Contract entered into in connection therewith (other than sales of assets by the Company in the ordinary course of business)business consistent with past practice;
(l) Contracts providing for the settlement 8) any Contract pursuant to which rights of any material Proceedingthird party are triggered or become exercisable, or under which any other consequence, result or effect arises, in connection with or as a result of the execution of this Agreement, the other Transaction Documents or the consummation of the Transactions contemplated hereunder or thereunder, either alone or in combination with any other event;
(m9) limited liability company agreementsany Contract relating to the sale, partnership agreementsissuance, Tax Sharing Agreements grant, exercise, award, purchase, repurchase or joint venture redemption of any Company Shares or any other securities of the Company or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor;
(10) any Contract of guarantee, support, indemnification (other than as provided pursuant to its standard customer agreements that involve a sharing in the ordinary course of profitsbusiness and “shrink wrap,” “click wrap,” or “browse-wrap” and similar generally available commercial end-user licenses to software), lossesassumption or endorsement of, costs or liabilities by any Target Company similar commitment with respect to, the Liabilities or indebtedness of any other Person.;
(n11) outstanding powers-of-attorney granted by any lease of personal or real property;
(12) any Contract or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a material Encumbrance on any material portion of the assets of the Company for or its Subsidiary;
(13) any purpose whatsoeverinter-company Contract;
(14) any settlement Contract;
(15) any Contract with any Governmental Authority; and
(o16) Contracts related to capital projects and capital expenditures in excess any other material agreement that was entered into outside the ordinary course of $100,000 individually business or $250,000 in is inconsistent with the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aCompany’s past practices.
(b) of the Disclosure Schedule, the The Company has made available delivered to the Purchaser true accurate and complete copies of all written Material Contracts required to be identified in Section 3.11(a) of the Company Disclosure Schedule, including all amendments thereto; and (ii) Section 3.11(a) of the Company Disclosure Schedule provides an accurate description of the material terms of each Material Contract identified in Section 3.11(a) of the Company Disclosure Schedule that is not in written form.
(including all modifications, amendments and supplements thereto and waivers thereunder). c) Each Material Contract is a valid and binding agreement of the party thereto, is in full force and effect effect, is enforceable by the Company in accordance with its terms, and the Company is valid and enforceable against the applicable Target Company not and, to the Knowledge of the Company’s Knowledge, the no other parties party thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract anddefault under or breach of, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of any such Material Contract. Neither the Company nor, to the Company’s Knowledgeand no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (i) result in a violation or breach of any other provisions of any Material Contract by any party thereto, is in breach of (ii) give any Person the right to declare a default or default exercise any remedy under any Material Contract, (iii) give any Person the right to accelerate the maturity or is alleged to be in breach or default under). The Company has neither provided nor received any notice performance of any intention Material Contract, or (iv) give any Person the right to cancel, terminate or modify any Material Contract. To Following the Closing Date, Purchaser, the Company and their respective Subsidiaries will be permitted to exercise all of the Company’s Knowledgerights under the Material Contracts to the same extent the Company would have been able to had the transactions contemplated by this Agreement not occurred and without being required to pay any additional amounts or consideration other than fees, no Occurrence has occurred royalties or exists which, with notice payments which the Company would otherwise be required to pay had such transactions contemplated hereby not occurred.
(d) No Person is renegotiating any amount paid by or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default payable to the Company under any Material Contract or result in a termination thereof renegotiating any other term or would cause or permit the acceleration or other changes provision of any right or obligation or the loss of any material benefit thereunderMaterial Contract.
Appears in 1 contract
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains a list of the following types of 6.11(a) sets forth all Contracts (and each amendment or modification theretoall amendments, ---------------- modifications and supplements thereto and all side letters to which such Seller is a party affecting the obligations of any party thereunder) to which such Seller or any Target Company of its Subsidiaries is a party, party or by which such Target Company or any of its properties or assets are boundbound that relate to: (i) material licensing, as merchandising, installation, servicing, production, manufacturing, retailing, sales (including sales agency) or programming, production or distribution (including any programming "puts"), including all such contracts and agreements containing exclusivity or "most favored nation" provisions; (ii) a right of first refusal, first negotiation, "tag along" or "drag along" rights applicable to any capital stock or material assets of such Seller; (iii) a partnership or joint venture, or cooperative development efforts; (iv) the acquisition, sale, lease or other disposition of material properties or assets of such Seller or its Subsidiaries or predecessors (by merger, purchase or sale of assets or stock or otherwise) entered into since January 1, 1998; (v) agreements with any Governmental Entity; (vi) material promotion, marketing, sponsorship or similar arrangements; (vii) indebtedness for borrowed money, letters of credit, security agreements, lockbox arrangements or guaranties of the date foregoing; (viii) real property deeds or leases and material equipment leases including all satellite transponder leases; (ix) material software or Intellectual Property license or maintenance agreements; (x) customer services (including telemarketing and billing); (xi) the provision of this Agreement any services, products or payments to or from any officer, director, employee or other affiliate of such Seller or such officer, director or employee; (such Contractsxii) all agreements relating to the retransmission of Primestar's signal by cable systems or any other multichannel programming distributor; and (xiii) all binding commitments and agreements to enter into any contracts or agreements relating to any of the foregoing (collectively, together with any such Contracts entered into in accordance with Section 9.1, the Intellectual Property Licenses, each, a “"Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;----------- -------- Contracts"). ---------
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for To the employment or engagement knowledge of any officersuch Seller, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness each of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Material Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company andin accordance with its terms, and there is no default or alleged default under any Material Contract so listed either by such Seller or, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements Knowledge of such Material Contract andSeller, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, by any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, and no Occurrence event has occurred or exists which, that with notice or the lapse of time or both, may give rise to, serve as a basis for, the giving of notice or both would constitute an a default thereunder by such Seller or, to the Knowledge of such Seller, any other party, in any such case in which such default or event of default under would, individually or in the aggregate, have a Material Adverse Effect on such Seller. Except as set forth in Schedule 6.11(a), all Material Contracts between such ---------------- Seller and its Distributors, sales agents, dealers and retailers are terminable by such Seller without cause on not greater than 30 days' notice, with no material termination fee or, except for commissions or fees earned prior to the termination date, continuing payment obligations thereunder.
(c) No party to any Material Contract has given notice to such Seller of, or result made a claim against such Seller with respect to, any breach or default thereunder, in any such case in which such breach or default would, individually or in the aggregate, have a termination thereof or would cause or permit the acceleration or other changes Material Adverse Effect on such Seller. Such Seller is not currently being audited, and has not received notice of an intent to conduct any right or obligation or the loss of audit, under any material benefit thereunderprogramming agreement.
(d) Schedule 6.11(d) identifies all of Sellers' Full Service Providers ---------------- and master sales agents.
(e) The payment terms with respect to the leasing of the GE transponders are set forth in the GE Transponder Lease.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tci Satellite Entertainment Inc)
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains a list 4.14 lists each of the following types Contracts and other agreements (or, in the case of Contracts (and each amendment or modification theretooral Contracts, summaries thereof) to which any Target the Company is a party, party or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from assets or properties is bound or subject (such Contracts and agreements being "Material Contracts"):
(i) engaging in any line of business or geographic region with any Personadvertising, market research and other marketing agreements;
(ii) soliciting any customersemployment, suppliersseverance, employees non-competition, consulting or contractors other agreements of any other Personnature with any current or former stockholder, partner, officer or employee of the Company or any Affiliate of any of such Persons;
(iii) competing with any agreements relating to the making of any loan or advance by the Company;
(iv) any agreements providing for the indemnification by the Company of any Person;
(iv) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts any agreements with any Governmental Authority;
(k) Contracts Authority except those entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business)business which are not material to the Company;
(lvi) Contracts providing any Contracts, agreements and other arrangements for the settlement sale of assets or for the furnishing of services, goods or products by or to the Company, including supply agreements, (A) with firm commitments having a value in excess of $10,000 or (B) having a term which is greater than six months and which is not terminable by the Company on less than 90 days' notice without the payment of any material Proceedingtermination fee or similar payment;
(mvii) limited liability company any broker, distributor, dealer, representative or agency agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.;
(nviii) outstanding powers-of-attorney granted any agreements (including settlement agreements) currently in effect pursuant to which the Company licenses the right to use any Intellectual Property to any Person or from any Person, and research and development agreements;
(ix) any confidentiality agreements entered into by the Company for during the period commencing five years prior to the date hereof pursuant to which confidential information has been provided to a third party or by which the Company was restricted from providing information to third parties, other than those entered into the ordinary course of business relating to the Company's operations;
(x) any purpose whatsoevervoting trust or similar agreements relating to any of the Ownership Interests to which any of the Shareholders or the Company is a party;
(xi) any joint venture, partnership or similar documents or agreements;
(xii) any agreements that limit or purport to limit the ability of the Company to own, operate, sell, transfer, pledge or otherwise dispose of any assets; and
(oxiii) all other agreements, Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 commitments not made in the aggregate. Other than ordinary course of business which are material to the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aCompany.
(b) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is legal, valid and binding on and enforceable against the Company and, to the Knowledge of the Company or a Shareholder, the other parties thereto and is in full force and effect and is valid and enforceable against except as enforceability may be limited by applicable law. Upon consummation of the applicable Target Company andtransactions contemplated by this Agreement, to the Company’s KnowledgeKnowledge of the Company or the Shareholders, the other parties thereto each Material Contract shall remain in accordance with their termsfull force and effect without any loss of benefits thereunder and, except as disclosed on Schedule 4.14, without the need to obtain the consent of any party thereto to the extent enforcement may be affected transactions contemplated by Enforceability Exceptionsthis Agreement. Each Target The Company that is a party to a Material Contract is in compliance in all material respects not (and with the terms and requirements giving of such notice or lapse of time would not be) in material breach of, or material default under, any Material Contract and, to the Company’s KnowledgeKnowledge of the Company or the Shareholders, each no other Person that is party to such Material Contract thereto is in compliance in all material respects with the terms and requirements of such breach of, or material default under, any Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor not received any written notice that any Material Contract is not enforceable against any party thereto, that any Material Contract has been terminated before the expiration of its term or that any intention party to a Material Contract intends to terminate such Material Contract prior to the termination date specified therein, or that any other party is in breach of, or default under, any Material Contract. To True and complete copies of all Material Contracts or, in the Company’s Knowledgecase of oral agreements, no Occurrence has occurred or exists whichif any, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination written summaries thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderhave been delivered to Purchaser.
Appears in 1 contract
Sources: Merger Agreement (Uti Corp)
Material Contracts. Section 3.10 Except for the material contracts identified and described in Schedule 2.17 of the Disclosure Schedule contains a list of (collectively, the following types of Contracts (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):), Target is not a party to or bound by any material contract, including, without limitation:
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party agreement presently in the twelve (12) month period prior effect relating to the date hereofsale of any securities, in excess of $500,000; assets or (ii) received payments from any third party in the twelve (12) month prior to the date hereofbusiness, in excess of $500,000by merger or otherwise;
(b) collective bargaining agreements and any trust indenture, mortgage, promissory note, loan agreement or other contracts contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with any labor unionsGAAP;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearcontract with any person with whom Target does not deal at arm’s length;
(d) Contracts evidencing Indebtedness any contract limiting the freedom of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging engage in any line of business or geographic region to compete with any Personother Person or any confidentiality, (ii) soliciting any customers, suppliers, employees secrecy or contractors of any other Person, or (iii) competing with any Personnon-disclosure contract;
(ie) Contracts that contain any distributor, sales, advertising, agency or provide for “most favored nations” termspublishing contract;
(jf) Contracts with any Governmental Authoritycontract that expires, or may be renewed at the option of any person other than Target so as to expire, more than one year after the date of this Agreement;
(kg) Contracts entered into any continuing contract for the purchase of materials, supplies, equipment or services involving, in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition case of any businesssuch contract, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that more than $50,000 over the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales life of assets in the ordinary course of business)contract;
(lh) Contracts providing any contract for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 50,000 in the aggregate. Other than ;
(i) any contract pursuant to which Target is a lessor of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property;
(j) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the Intellectual Property Licenses that obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other person or entity;
(k) any agreement to pay, discharge, settle or otherwise satisfy in an amount in the Company is not required excess of $50,000 in any one case or $100,000 in the aggregate, any claim asserted or threatened against Target;
(l) any amendment, modification, or supplement to disclose on Section 3.17(a) any of the Disclosure Scheduleforegoing; or
(m) any agreement to do, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit any of the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderforegoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (INX Inc)
Material Contracts. (a) Section 3.10 5.15(a) of the Company Disclosure Schedule contains sets forth a correct and complete list of all of the following types of Contracts (and each amendment or modification thereto) to which the Company or any Target Company Subsidiary is a party, or by which such Target any of the assets or properties of the Company or its properties or assets any Company Subsidiary are boundcurrently bound (collectively, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and Contracts with Material Customersany current or former officer, Contracts pursuant to which manager, equityholder or Affiliate of the Company or any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or Subsidiary;
(ii) received payments from Contracts for the sale or disposition of any third party of the assets of the Company or any Company Subsidiary other than in the twelve (12) month prior Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase any of the date hereof, in excess assets of $500,000the Company;
(biii) collective bargaining agreements and any Contracts containing change or control or similar provisions or providing for severance, retention, change in control payments, or other contracts with any labor unionssimilar payments;
(civ) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information;
(v) Contracts containing covenants of the Company or Company Subsidiary not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment;
(vi) Contracts containing any most-favored nations undertakings, rights of first refusal, price protection mechanisms or any other than Benefit Planssimilar provisions restricting the business of the Company or any Company Subsidiary;
(vii) 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 material assets or the capital stock or equity of any other Person;
(viii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of the Company or any Company Subsidiary, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(ix) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-time, consulting, independent contractor time or consulting or other basis that provide annual cash compensation in excess of $150,000 per yearbasis;
(dx) Contracts evidencing Indebtedness with independent contractors or consultants (or similar arrangements) that are not cancelable without penalty or further payment and without more than thirty (30) days’ notice;
(xi) [Intentionally Omitted];
(xii) Contracts (or group of related Contracts) that involve the Target Companies expenditure of more than $25,000 annually or $50,000 in excess the aggregate or require performance by any party more than one (1) year from the date hereof and that are not cancelable by the Company or any Company Subsidiary without penalty or further payment and without more than ninety (90) days’ notice;
(xiii) Contracts for which the principal purpose is the licensing of $50,000any Intellectual Property by or to the Company or any Company Subsidiary;
(xiv) Contracts or plans regarding rights to or the issuance of any equity interest in the Company or any Company Subsidiary or any other profit-sharing plan, including any loan equity option plan, equity appreciation rights plan, phantom equity plan or credit agreements, promissory notes, security agreements, pledge agreements, mortgagesequity purchase plan or any other Contract any of the benefits of which will be increased, or similar letters the vesting of creditbenefits of which will be accelerated, or pursuant to which any Target Company has guaranteed any liabilities or obligations by the occurrence of any of Personthe transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(exv) the LeasesLease Agreements;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(jxvi) Contracts with any Governmental AuthorityEntity;
(kxvii) Contracts entered into in connection related to the compromise or settlement of any litigation or arbitration or other proceeding;
(xviii) Contracts with any merger, consolidation labor union or other business combination, or any collective bargaining agreement;
(xix) Contracts involving any outstanding powers of attorney executed on behalf of the Company;
(xx) Contracts with respect to the acquisition or disposition of any businessIntellectual Property Rights, assets or securitiesincluding any in-bound licenses, or any equity or debt investment in or any loan to any Person; providedout-bound licenses and cross-licenses, that the foregoing shall not apply to but excluding (i) non-disclosure agreements entered into in connection therewith the Ordinary Course of Business that do not include explicit licenses to Intellectual Property Rights; (other than sales of assets ii) non-exclusive inbound licenses for commercially available non-custom software that (1) is not incorporated into, linked with, or distributed in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company conjunction with any other Person.
Company or Company Subsidiary products, and (n2) outstanding powers-of-attorney granted by is made generally available on standard terms involving annual payments from the Company for of less than $10,000; or (iii) Company’s or any purpose whatsoeverCompany Subsidiary’s written agreements with its customers that have been entered into on Company’s or any Company Subsidiary’s standard form customer agreement previously made available to Parent without material deviation therefrom; and
(oxxi) any other Contracts related to capital projects and capital expenditures in excess of that involve (i) $100,000 25,000 individually or $250,000 50,000 in the aggregate. Other than the Intellectual Property Licenses that aggregate or more and is not cancelable by the Company is or any Company Subsidiary without penalty within thirty (30) days, (ii) minimum purchase commitments by the Company or any Company Subsidiary, or (iii) ongoing service or support obligations and are not required to disclose on cancelable without penalty or refund within thirty (30) days.
(b) Section 3.17(a5.15(b) of the Company Disclosure Schedule, Schedule sets forth a correct and complete list of (i) all of the Contracts to which the Company has made available or any Company Subsidiary is a party that cannot be cancelled by the Company or any Company Subsidiary within ninety (90) days, including any penalty associated with such cancellation and (ii) all of the Contracts to Purchaser true which the Company or any Company Subsidiary is a party that can be cancelled by a third party to any such Contract within ninety (90) days, whether as a result of the Mergers or otherwise.
(c) True and complete copies of each Material Contract have been made available to Parent. Except as disclosed in Section 5.15(c) of the Company Disclosure Schedule: (including all modificationsi) neither the Company nor any Company Subsidiary has breached, amendments and supplements thereto and waivers thereunder). Each violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract Contract, nor is in full force and effect and is valid and enforceable against the applicable Target Company andaware, to the Company’s Knowledge, of any event that would constitute such a breach, violation or default with the other parties thereto in accordance with their termslapse of time, except giving of notice or both; (ii) to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that Knowledge of the Company, no other party to any Material Contract is in default thereunder; (iii) each Material Contract is a legal, valid and binding obligation of the Company or Company Subsidiary and is in full force and effect; (iv) the consummation of the Mergers will neither violate nor result in the breach, modification, cancellation, termination or suspension of any Material Contract; (v) the consummation of the Mergers will not require the consent of any third party to a Material Contract; (vi) following the Closing, both Parent and the Company (or the applicable Company Subsidiary) will be permitted to exercise all of the Company’s (or such Company Subsidiary’s) rights under the Material Contracts to the same extent as though the Mergers had not occurred and without being required to pay any additional amounts or consideration other than fees, royalties or payments that the Company (or such Company Subsidiary) would otherwise be required to pay had such Mergers not occurred; (vii) none of the Material Contracts is with any Stockholder, manager, director, officer, or employee of the Company or Company Subsidiary, or with any family member thereof; and (viii) to the Knowledge of the Company, there exists no condition or state of facts or circumstances involving any third party to a Material Contract that could reasonably be expected to constitute, in the aggregate, a Material Adverse Effect. There are no Material Contracts between the Company or any Company Subsidiary and any other Person under which there is in compliance in all material respects any dispute regarding the scope of such agreement, or performance under such agreement including with respect to any payments to be made or received by the terms and requirements Company or any Company Subsidiary thereunder. To the Knowledge of the Company, no party to a Material Contract has any intention of terminating such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements Company or any Company Subsidiary or reducing the volume of business such Material Contract. Neither party conducts with the Company noror any Company Subsidiary, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve whether as a basis for, result of the transactions contemplated hereby or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderotherwise.
Appears in 1 contract
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains a list 4.11(a) lists each of the following types of Contracts (contracts and each amendment or modification thereto) agreements to which any Target such Company is a party, or by which such Target Company or its properties or assets are bound, party as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a contracts and agreements described below being “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers the Company Holders or any Affiliate thereof;
(ii) Contracts for the sale of any of the assets of such Company other than in the Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase any of its assets;
(iii) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information;
(iv) Contracts containing covenants of such Company not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment or covenants of any other Person not to compete with such Company in any line of business or in any geographical area or not to solicit or hire any individual with respect to employment;
(v) Contracts relating to the acquisition by such Company of any operating business or material assets or the capital stock of any other Person;
(vi) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of such Company, including indentures, guarantees, loan or credit agreements, sale and Contracts leaseback agreements, purchase money obligations incurred in connection with Material Customersthe acquisition of property, Contracts mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(vii) any Contract pursuant to which any Target Vault Cash is supplied to such Company (i) made payments to any third party for use in the twelve Company ATMs (12) month period prior “Vault Cash Agreements”), such cash borrowed under such agreements being referred to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000herein as “Vault Cash Borrowings”;
(bviii) collective bargaining agreements and any other contracts with any labor unionsContract pursuant to which armored car services are provided to such Company;
(cix) any Contract pursuant to which maintenance or repair services are supplied to such Company with respect to the Company ATMs;
(x) any Contract pursuant to which such Company is provided any telecommunications services in connection with the operation of the Company ATMs;
(xi) the twenty-five (25) largest Company Merchant Agreements, as measured by the amount of gross revenues received by all of the Companies during the most recently completed fiscal year and the current fiscal year-to-date of the Companies;
(xii) any Contract (commonly referred to as “processor contracts”) pursuant to which ATM transactional processing services are provided to such Company with respect to such Company’s ATMs;
(xiii) any Contract (commonly referred to as “branding contracts”) pursuant to which such Company permits a financial institution to place its name and trademarks on any of the Company ATMs and pursuant to which that institution’s cardholders are permitted to use those Company ATMs on a surcharge free basis;
(xiv) any Contract (commonly referred to as “advance functionality contracts”) pursuant to which such Company is enabled to provide services such as ▇▇▇▇ payment, check cashing or other services at some of the Company ATMs;
(xv) any Contract (commonly referred to as a “surcharge free agreement”) pursuant to which such Company has agreed to permit the cardholders of certain designated financial institutions to make cash withdrawals from certain Company ATMs without the assessment of a surcharge fee;
(xvi) any Contract (commonly referred to as a “sponsorship agreement”) pursuant to which a financial institution sponsors such Company’s participation in the financial electronic payment networks such as MasterCard, Visa, Cirrus, Interlink, Maestro, Plus, Pulse, NYCE and STAR;
(xvii) Contracts under which such Company has made advances or loans to any other Person;
(xviii) Contracts, polices or plans which obligate the Company to pay or provide any severance or other than Benefit Planspayments or benefits upon termination of employment, change of control, sale of assets or equity, or retention, to, or for, any employee of the Target Companies;
(xix) Contracts for the employment or engagement of any officer, employee or other Person individual on a full-time, part-timetime or consulting basis;
(xx) Contracts with independent contractors or consultants that are not cancelable without penalty or further payment and without more than 30 days’ notice;
(xxi) outstanding Contracts of guaranty, consultingsurety or indemnification by such Company, independent contractor other than indemnification provisions in leases, Company Merchant Agreements, branding agreements and other Contracts entered into in the Ordinary Course of Business or in business acquisition agreements described in clause (v) above;
(xxii) each Contract under which a Company has granted a third party a power of attorney;
(xxiii) all Intellectual Property Licenses or any other Contracts relating to any Intellectual Property or Technology (excluding licenses pertaining to Shrinkwrap Software);
(xxiv) any Distribution Agreement with a Dealer and the list of Distribution Agreements on Schedule 4.11(a) includes an accurate count of the number of ATMs that are being serviced by the Companies pursuant to each such Distribution Agreement;
(xxv) any Contract in which (I) services are provided to such Company for compensation that is based on the amount of revenues or sales generated as a result of such services, (II) such Company will be required to pay a change-of-control or similar type of fee or payment by reason of the completion of the transactions contemplated hereby or (III) such Company will have the option to terminate such Contract upon payment of a specified fee or other basis that provide payment upon completion of the transactions contemplated hereby; and
(xxvi) any Contract not listed in respect of the categories set forth above other than Company Merchant Agreements with an annual cash compensation payment in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person100,000.
(nb) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose Except as set forth on Section 3.17(a) of the Disclosure ScheduleSchedule 4.11(b), the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and such Company is valid and enforceable against the applicable Target Company andnot in material breach of, to the Company’s Knowledgeor material default under, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of any such Material Contract. Neither the Company , nor, to the Company’s KnowledgeKnowledge of the Companies, is any other party thereto, is to any Material Contract in material breach of or default under (or is alleged thereunder. Except as disclosed on Schedule 4.11(b), no party to be any Material Contract has exercised in breach or default under). The Company writing any termination rights with respect thereto, and no party has neither provided nor received any given written notice of any intention material dispute with respect to terminate any Material Contract.
(c) Such Company has delivered to Buyer a correct and complete copy of each written Material Contract. To the Company’s Knowledge, Schedule 4.11(c) contains an accurate and complete description of all material terms of all oral Material Contracts.
(d) There is no Occurrence has occurred or exists event which, with upon giving of notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of a material breach or material default under any such Material Contract or result in a termination thereof or would cause or permit the termination, modification or acceleration of such Material Contract.
(e) With regard to the Company Merchant Agreements of the Companies:
(i) Schedule 4.11(e) includes a copy of the current standard forms used by the Companies (the “Contract Forms”) utilized in negotiating Company Merchant Agreements since January 1, 2012, other than national contracts. Except as shown on Schedule 4.11(e)(i), none of the Company Merchant Agreements (A) is a Contract between a Company, on the one hand, and any Company Holder, Affiliate of a Company Holder or any present or former director, officer or employee of a Company or Company Holder or Affiliate of a Company Holder, on the other changes hand, (B) creates any type of partnership, joint venture or profit sharing agreement or (C) imposes any non-compete, exclusivity or similar restrictions on any Company or any Affiliate thereof. Originals or copies of all of the Company Merchant Agreements are located in the business premises and offices covered by the Leases and have been made available for inspection by Purchaser.
(ii) Except as would not be or result in, alone or together, a Material Adverse Effect and except as otherwise shown on Schedule 4.11(e)(ii), (A) each of the Company Merchant Agreements is valid, binding and enforceable against the parties thereto in accordance with its terms, and is in full force and effect, (B) the Companies have not violated any provision of, or failed to perform any obligation required under the provisions of, any Company Merchant Agreement, (C) to the Knowledge of the Companies, no other party is in breach, or has received written notice of breach, of any right or obligation Company Merchant Agreement and (D) no event has occurred that with the lapse of time or the loss giving of notice or both would constitute a breach or default by any material benefit thereunderCompany, or, to the Knowledge of the Companies, any other party under any Company Merchant Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Cardtronics Inc)
Material Contracts. (a) Section 3.10 4.07(a) of the Disclosure Schedule contains a list Schedules lists each of the following types of Contracts (and each amendment x) by which any of the Purchased Assets are bound or modification theretoaffected or (y) to which any Target Company Seller is a party, party or by which such Target Company it is bound in connection with the Business or its properties or assets are bound, as of the date of this Agreement 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 Disclosure Schedules and all Intellectual Property LicensesAgreements set forth in Section 4.11(b) of the Disclosure Schedules, each, a “being "Material Contract”Contracts"):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, all Contracts involving aggregate consideration in excess of $500,000; 25,000 and which, in each case, cannot be cancelled without penalty or without more than 90 days' notice;
(ii) received payments from any third party in all Contracts that require Seller to purchase or sell a stated portion of the twelve (12) month prior to requirements or outputs of the date hereof, in excess of $500,000Business or that contain "take or pay" provisions;
(biii) collective bargaining agreements and any other contracts with any labor unions;
(c) all Contracts (other than Benefit Plans) that provide for the employment or engagement indemnification of any officerPerson or the assumption of any Tax, employee environmental or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess Liability of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(iiv) all Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect 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 securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of businessotherwise);
(lv) Contracts providing for the settlement of any material Proceedingall broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts;
(mvi) limited liability company agreementsall 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 trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees);
(viii) all Contracts with any Governmental Authority ("Government Contracts");
(ix) all Contracts that limit or purport to limit the ability of Seller to compete in any line of business or with any Person or in any geographic area or during any period of time;
(x) all joint venture, partnership agreementsor similar Contracts;
(xi) all Contracts for the sale of any of the Purchased Assets or for the grant to any Person of any option, Tax Sharing Agreements right of first refusal or joint venture preferential or similar right to purchase any of the Purchased Assets;
(xii) all powers of attorney with respect to the Business or any Purchased Asset;
(xiii) all collective bargaining agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company Contracts with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeverUnion; and
(oxiv) all other Contracts related that are material to capital projects and capital expenditures in excess of $100,000 individually the Purchased Assets or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) operation of the Disclosure Schedule, the Company has made available Business and not previously disclosed pursuant to Purchaser true and complete copies of each Material Contract this Section 4.07.
(including all modifications, amendments and supplements thereto and waivers thereunder). b) Each Material Contract is valid and binding on Seller in accordance with its terms and is in full force and effect and is valid and enforceable against the applicable Target Company andeffect. None of Seller or, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Seller's Knowledge, any other party thereto, thereto is in breach of or default under (or is alleged to be in breach of or default under). The Company , or has neither provided nor or received any notice of any intention to terminate terminate, any Material Contract. To the Company’s Knowledge, no Occurrence No event or circumstance has occurred or exists whichthat, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer. There are no disputes pending or threatened under any Contract included in the Purchased Assets.
Appears in 1 contract
Material Contracts. Section 3.10 of the Disclosure (a) Schedule contains a list of the following types of 3.11 lists all Contracts (and each amendment or modification theretocollectively, “Material Contracts”) to which any Target Company of the Companies is a party or by which any of the Companies is bound, and which are currently in effect and constitute the following:
(i) all contracts and agreements that provide for annual liabilities, obligations, payments or expenses by, or annual payments or income to, any of the Companies, or that require the payment or incurrence by any of the Companies of $250,000 or more (other than ordinary course purchase and sale orders);
(ii) all partnership, joint venture or limited liability company contract, arrangements or agreements to which any of the Companies is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(biii) collective bargaining all license agreements with respect to material Intellectual Property Rights granted or held by any of the Companies with respect to any material Intellectual Property Rights, except for (A) licenses with respect to pre-packaged software applications, (B) employee invention assignment or similar agreements in form and substance which are not as a whole materially different from the form of employee invention assignment provided by Seller to Company, and (C) nonexclusive licenses granted in the ordinary course of business to customers of any other contracts with of the Companies for use of products supplied directly or indirectly by any labor unionsof the Companies in form which are not as a whole materially different from the form of customer agreement provided by Seller to Company;
(civ) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee all contracts or other Person on a full-time, part-time, consulting, independent contractor or other basis documents that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of substantially limit the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations freedom of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging Companies to compete in any line of business or geographic region with any Person, (ii) soliciting Person or in any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Persongeographic area;
(iv) Contracts that contain all agreements or provide for “most favored nations” termsother documents of any of the Companies (including any guaranty) in respect of Indebtedness, including financial instruments of indenture or security instruments (typically interest-bearing) such as notes, mortgages, loans and lines of credit;
(jvi) Contracts with all contracts, agreements or other documents of any Governmental Authorityof the Companies in respect of property or assets (whether real or personal, tangible or intangible) in which any of the Companies holds a leasehold interest, except for any lease for equipment or office furniture which does not, individually, involve annual payments by the Companies in excess of $25,000 in any one case;
(kvii) Contracts entered into all forms of warranty agreements or product guarantees currently in connection with any merger, consolidation or other business combination, or effect with respect to products sold or services rendered by any of the acquisition Companies, of the Companies other than warranty agreements or disposition of any business, assets or securitiesproduct guarantees entered into, or any equity or debt investment in or any loan to any Person; providedgranted, that by the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets Companies in the ordinary course of business);
(lviii) Contracts all leases providing for annual rentals of personal property of more than $50,000, except for any lease that is terminable by any of the settlement Companies upon 120 days’ notice or less without the payment of any material Proceedingpenalty or material termination fee;
(mix) limited liability company agreementsall agreements for the purchase of materials, partnership agreementssupplies, Tax Sharing Agreements goods, services, equipment or joint venture agreements other assets that involve a sharing of profits, losses, costs or liabilities provide for aggregate payments by any Target Company with of the Companies of $50,000 or more, annually, except for (i) any other Person.
arrangement that is terminable by any of the Companies upon 120 days’ notice or less without the payment of any material penalty or material termination fee and (nii) outstanding powers-of-attorney granted by any purchase orders for goods or services entered into in the Company for any purpose whatsoeverordinary course of business; and
(ox) Contracts related any employment contract or agreement with any current employee of any of the Companies that provides for annual salary and bonus payments to capital projects and capital expenditures such employee by any of the Companies in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a150,000.
(b) of the Disclosure Schedule, the The Company has delivered or made available to Purchaser true and complete Buyer copies of each all Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder)Contracts. Each Material Contract is in full force and effect and is valid and enforceable against None of the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company Companies nor, to the Knowledge of the Company’s Knowledge, any other party thereto, is in breach of thereof or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract, or has given written notice of breach or default to any of the Companies, except for such breaches or defaults as would not, individually or in the aggregate, have a Material Adverse Effect. Each Material Contract required to be disclosed pursuant to Section 3.11(a) is a valid and binding agreement of the Company or result a Subsidiary, as applicable, enforceable in accordance with its terms against the Company or a Subsidiary, as applicable, and, to the Knowledge of the Company, the other contracting party, and is in full force and effect. None of the Companies has received any written notice of termination thereof or would cause or permit the acceleration or intention to terminate from any other changes of any right or obligation or the loss of any material benefit thereunderparty to a Material Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Material Contracts. Section 3.10 (a) Schedule 4.13(a) of the Company Disclosure Schedule contains a list Schedules sets forth all of the following types of Contracts (and each amendment or modification thereto) to which any Target an Acquired Company is a party, party or by which such Target Company or its properties or assets are it is bound, in each case, as of the date of this Agreement (such Contractscollectively, together with the Intellectual Property LicensesContracts listed or required to be listed on Schedule 4.13(a) of the Company Disclosure Schedules, each, a the “Material ContractContracts”):
(ai) Other than Contracts with Material Suppliers and any Related Party;
(ii) Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments relating to any third party acquisition or dispositions made by an Acquired Company of any operating business, material assets or the share capital or other equity securities of any Person (including any Acquired Company and whether by merger, sale of stock, sale of assets or otherwise), in the twelve each case, (12A) month period prior to the date hereof, for consideration in excess of $500,000; 500,000 or (iiB) received payments from any third party that contain representations, warranties, covenants, indemnities or other obligations of such Acquired Company that are still in the twelve (12) month prior to the date hereof, in excess of $500,000effect;
(biii) collective bargaining agreements and any other contracts with any labor unionsContracts in which an Acquired Company is a party in a joint venture, strategic alliance, profit-sharing, general or limited partnership or similar arrangement;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Person;
(e) the Leases;
(f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(hiv) Contracts containing any covenant of a Target Company that restricts a Target Company restricting or any of its Affiliates from (i) engaging limiting in any line material respect the ability of an Acquired Company to compete in any business or geographic region with any Person, (ii) soliciting Person or in any customers, suppliers, employees geographic area or contractors of solicit or otherwise engage any other Person, Person as a supplier or (iii) competing with any Personcustomer;
(iv) Contracts relating to or evidencing the incurrence, assumption or guarantee of Debt (other than advances to employees for expenses or transactions with customers on credit, in each case, in the Ordinary Course of Business);
(vi) Contracts imposing a Lien on any material assets or properties of any Acquired Company, other than Liens which will be released at or prior to Closing and Permitted Liens;
(vii) any Contract or series of related Contracts involving, requiring or that contain contemplates the Acquired Companies to make capital expenditures in excess of $500,000 in the aggregate;
(viii) any stockholders’ agreement, investors’ rights agreement, registration rights agreement or provide for similar Contract;
(ix) Contracts granting any Person an option or a right of first refusal or first offer or similar preferential right to purchase or acquire any Equity Securities or any material asset of any Acquired Company;
(x) Any contract (A) with any sole source suppliers of material products or services or (B) that includes any “most favored nations” termsterms and conditions, any exclusive dealing or minimum purchase or sale, “take or pay” obligations, arrangements or requirements to purchase substantially all of the output or production of a particular supplier that, in any such case, is material to the Acquired Companies taken as a whole;
(jxi) Contracts with any a Governmental AuthorityBody other than Contracts that are not material and are entered into in the Ordinary Course of Business;
(kxii) Contracts entered into in connection with the settlement of any merger, consolidation or Legal Proceeding that contains any material ongoing continuing obligations (other business combination, or than confidentiality obligations with respect to the acquisition terms of the settlement);
(xiii) Contracts under which an Acquired Company has granted or disposition of received any business, assets license or securitiessublicense, or any equity or debt investment in or any loan covenant not to ▇▇▇, with respect to any Person; providedIntellectual Property, that other than (i) “off the foregoing shall not apply shelf” licenses pursuant to non-disclosure which Intellectual Property is made available through regular commercial distribution channels on standard terms and conditions and (ii) agreements entered into in connection therewith the Ordinary Course of Business pursuant to which Intellectual Property is non-exclusively licensed to customers or service providers;
(xiv) Contracts (other than sales a Company Benefit Plan) which involve the expenditure by an Acquired Company, or would result in payments to an Acquired Company, of assets more than $500,000 in the ordinary course aggregate in any twelve (12) month period or $2,000,000 in the aggregate over the term of business)such Contract that are not terminable by such Acquired Company without penalty on notice of one hundred eighty (180) days or less;
(lxv) Contracts providing for the settlement of any material ProceedingReal Property Leases;
(mxvi) limited liability company agreementsany employment, partnership agreementsseverance, Tax Sharing Agreements termination or joint venture agreements consulting Contract with a Key Employee or any change in control, retention or transaction bonus Contract that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company provides for any purpose whatsoeversuch bonus in an amount of $100,000 or more; and
(oxvii) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(aany Collective Bargaining Agreement.
(b) of the Disclosure Schedule, the The Company has made available to Purchaser Buyer prior to the date of this Agreement a true and complete copies correct copy of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunderthereto). Each Material Contract is (x) a legal, valid and binding obligation of the applicable Acquired Company and, to the Knowledge of the Company, of each counterparty thereto and (y) is in full force and effect and is valid and enforceable against the applicable Target Company and, to the Company’s Knowledge, the other parties thereto in accordance with their termsits terms and conditions, subject to the Equitable Exceptions, except for such failures to be legal, valid and binding or in full force and effect that would not, individually or in the aggregate, have a Material Adverse Effect. None of the Acquired Companies, nor to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a party to a Material Contract is in compliance in all material respects with the terms and requirements Knowledge of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of of, or in default under under, any such Material Contract, and no event has occurred (or is alleged to be in other than any breach or default under). The Company that has neither provided nor received any notice of any intention been cured prior to terminate any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, date hereof) that with notice or lapse of time or both, may give rise to, serve as a basis for, or both would constitute such a breach or default thereunder by an event Acquired Company, 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, have a Material Adverse Effect. Except as would not, individually or in the aggregate, have a Material Adverse Effect, (i) as of the date hereof, no Acquired Company has received any written claim or written notice or, to the Knowledge of the Company, any other claim or notice regarding (A) any purported breach or default of any Material Contract or any dispute thereunder or (B) the non-renewal or termination of any Material Contract, (ii) no Acquired Company has waived any of its material rights or material benefits under any Material Contract and (iii) as of the date hereof, no written notice or, to the Knowledge of the Company, any other notice to terminate in whole or result in a termination thereof or would cause or permit part has been served with respect to any Material Contract. For purposes of this Section 4.13(b), the acceleration or other changes term “Material Contract” shall be construed as if it were not defined by reference to the date of any right or obligation or the loss of any material benefit thereunderthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Murphy USA Inc.)
Material Contracts. (a) Section 3.10 4.21(a) of the Company Disclosure Schedule contains a list of the following types of Contracts (and lists each amendment or modification thereto) material Contract to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments other Person has entered into on behalf of or for the benefit of Company, pursuant to any third party in the twelve (12) month period prior which, to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per year;
(d) Contracts evidencing Indebtedness Knowledge of the Target Companies in excess of $50,000Company, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of creditthe Company otherwise benefits, or pursuant to which Company’s assets or liabilities are otherwise bound or affected, and in each case that falls within one of the following categories (collectively, the “Material Contracts”):
(i) Shareholder agreements, voting trusts, proxies or other binding arrangements or understandings among all or any Target of the stockholders or other Equity Interest holders of the Company has guaranteed any liabilities relating to the voting of their respective capital stock of the Company or obligations other Equity Interest in the Company;
(ii) Investor rights agreements, registration rights agreements and other Contracts granting rights of any nature to any holder of Company capital stock or other securities of, or other equity interest in, the Company, or to persons having rights to acquire such capital stock, securities or equity interest;
(iii) Contracts related to the issuance or transfer of the securities of, or any other Equity Interest in, the Company, including stock purchase agreements, warrants, convertible notes, and other notes;
(iv) Personal property leases and conditional sales and title retention agreements for personal property, in each case involving payments of more than $5,000 individually or $25,000 in the aggregate for related leases;
(v) Real Property leases and subleases and any other Contracts relating to any right, title or interest in or to Real Property;
(vi) any Customer Contract;
(vii) any in-bound licenses and related Contracts, other than licenses for commercial off the shelf software licensed by the Company in the Ordinary Course of Business not required to be scheduled on Schedule 4.15(c);
(viii) any out-bound licenses and related Contracts, other than Customer Contracts entered into in the Ordinary Course of Business;
(ix) any Contract relating to any sales, agency, distribution, marketing, service/product tie-in, barter or in-kind agreement;
(x) any Contract for the manufacture, service or maintenance of any equipment or other personal property of Company involving payments of more than $5,000;
(xi) any other Contract for capital expenditures or for the purchase of goods or services in excess of $5,000 for individual items or more than $25,000 for a category or type of goods or services, other than the purchase of supplies in the Ordinary Course of Business;
(xii) any mortgage or other Contract involving financing or borrowing of money for the Company, or evidencing indebtedness or any Liability for borrowed money or any obligation for the deferred purchase price of property in each case for or of the Company (excluding normal trade payables);
(xiii) any Contract to indemnify any Person, to share in or contribute to the Liability of any Person or to guarantee any Liability of any Person, other than Customer Contracts entered into in the Ordinary Course of Business;
(xiv) any joint venture, partnership, cooperative arrangement or similar Contract and any other Contract involving a sharing of profits;
(xv) any Contract related to the acquisition of a business or the equity of any other Person;
(exvi) any Contract for the Leasespurchase or sale of any assets or for the option or rights to purchase or sell any assets in excess of $5,000 per purchase order and in any case other than in the Ordinary Course of Business;
(fxvii) Contracts any Contract with Material Suppliersor with respect to any consultant, independent contractor or employee of the Company, including with respect to bonus, stock option or other incentive equity, termination payments or other compensation, and further including any Contract with any labor union, other than employment offer letters in the Company’s standard form;
(gxviii) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company or any of its Affiliates from (i) engaging in any line of business or geographic region with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts Contract with any Governmental Authority;
(kxix) Contracts entered into in connection any insurance policy or other Contract pertaining to insurance;
(xx) any Contract containing covenants not to compete applicable to the Company, with any Person in any geographical area;
(xxi) any power of attorney, proxy or similar instrument, except for the power of attorney granted to Company’s counsel or foreign patent agents or similar persons for the prosecution of matters related to the Company’s Registered Intellectual Property Rights;
(xxii) any Contract for the purchase or sale of foreign currency or otherwise involving foreign exchange transactions;
(xxiii) any Contract containing a “most-favored nation” or other provision requiring adjustment of cost, pricing, priority or other terms or conditions of the Contract, or performance obligations under such Contract;
(xxiv) any Contract requiring Company to “pass through” or otherwise provide any party to such Contract the full or partial benefit of reduced royalty rates, production or other costs;
(xxv) any Contract which by its terms requires the consent of the other party to the transfer or assignment of such Contract, including in the in the event the Company shall sell all or substantially all of its assets or business or otherwise be subject to a merger, reorganization, consolidation or change in control;
(xxvi) any Contract between Company and an Affiliate, other than employment offer letters in the Company’s standard form;
(xxvii) any confidentiality, non-disclosure or similar Contract between Company and any third party; and
(1) Any other Contract which provides for payment or performance by any party thereto having an aggregate value of $5,000 or more, including future payments, performance of services or delivery of goods or materials to or by Company of an aggregate amount or value in excess of $25,000 on an annual basis, (2) any other Contract outside the Ordinary Course of Business of Company and (3) any Contract the terms of which are not arm’s-length.
(b) Section 4.21(b) of the Company Disclosure Schedule sets forth any proposed Contract under negotiation or discussion that would fall under any of the categories in subsection (a) above if it is executed or otherwise becomes legally binding at any time in the future.
(c) The Material Contracts constitute all of the material contracts used in or, to the Company’s Knowledge, necessary for the conduct of the business combinationof the Company as currently conducted in a manner consistent with the conduct of the business in the previous year.
(d) Company has provided to Parent true, accurate and complete copies of all of the Material Contracts, and there are no oral or written amendments, modifications, side letters, supplements or other arrangements or agreements in existence with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan Material Contracts which have not been provided to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other PersonParent.
(ne) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure Schedule, the Company has made available to Purchaser true and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target legally binding on Company and, to the Company’s Knowledge, the other parties thereto thereto, and each Material Contract is enforceable in accordance with their termsits terms with respect to Company and, except to the extent enforcement may be affected Knowledge of Company, with respect to each other party to such Material Contract. Company has no Knowledge of any pending or threatened bankruptcy, insolvency or similar Proceeding with respect to any party to any Material Contract.
(f) To the Knowledge of Company, no audit or similar review or investigation has been or is being conducted by Enforceability Exceptions. Each Target Company that is a any party to a Material Contract is in compliance in all material respects Contract. Company has no Knowledge of, and has not received any written notice or written request with the terms respect to, any such audit, review or investigation, and requirements Company has no Knowledge of such Material Contract and, any facts that are reasonably likely to lead to the Company’s Knowledgecommencement of any such audit, each other Person that review or investigation.
(g) Company is party to such Material Contract is not in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in violation or material breach of or material default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice of any intention to terminate any Material Contract. To the Knowledge of Company, no third party to any Material Contract is in material violation or breach of or material default under any Material Contract. No action by Company has been taken, and to Company’s Knowledge, no Occurrence action has occurred or exists whichbeen taken by another Person, which would, with or without notice or lapse of time time, (i) result in a violation or bothbreach of any of the provisions of any Material Contract other than immaterial violations or breaches, may (ii) give rise toany Person the right to declare a material default under or exercise any remedy under any Material Contract, serve as a basis for(iii) give any Person the right to accelerate the maturity or performance of any Material Contract, or would constitute an event (iv) give any Person the right to cancel, terminate or modify any Material Contract or assert a counterclaim, defense or offsetting claim under a Material Contract. Company has no Knowledge of, and has received no written notice of, any of default the foregoing, and Company has no Knowledge of facts that are reasonably likely to result in any of the foregoing.
(h) No Person (i) is renegotiating, or (ii) has requested a renegotiation of, any amount paid or payable to Company under any Material Contract or any other term or provision of any Material Contract. Company has not waived any of its material rights under any Material Contract. Performance of the Material Contracts by Company as of the Closing Date will not result in a termination thereof any violation of or would cause failure to comply with any Legal Requirement. Company has not guaranteed or permit otherwise agreed to insure or become liable for in any way any Contract or Liability of another Person, or pledged any of Company’s assets to secure the acceleration performance or payment of any Material Contract. Neither Company nor any of its Affiliates or officers, nor, to the Knowledge of Company, any employee or agent of Company or any other Person acting on Company’s behalf, has directly or indirectly within the last five (5) years provided, or agreed to provide, any tangible or intangible benefit to any customer, supplier, Governmental Authority, employee or other changes Person that would result in any violation of any right or obligation or the loss of any material benefit thereunderLegal Requirement.
Appears in 1 contract
Sources: Merger Agreement (NightHawk Radiology Holdings Inc)
Material Contracts. Section 3.10 4.1(d) of the Company Disclosure Schedule contains sets forth a complete and accurate list of all currently effective written or oral contracts, agreements, leases, instruments or legally binding contractual commitments to which the Company is a party that meet any of the following types of Contracts criteria (and each amendment or modification thereto) to which any Target Company is a party, or by which such Target Company or its properties or assets are bound, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, each, a “"Material Contract”"):
(a) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in contract with a customer of the twelve (12) month period prior Company or with any entity that purchases goods or services from the Company for consideration paid to the date hereof, Company of $100,000 or more in any fiscal year of the Company;
(ii) any contract for capital expenditures or the acquisition or construction of fixed assets in excess of $500,000; 50,000 in any fiscal year of the Company;
(iii) any contract for the purchase or lease of goods or services (ii) received including without limitation, equipment, materials, software, hardware, supplies, merchandise, parts or other property, assets or services), requiring aggregate future payments from any third party in by the twelve (12) month prior to the date hereof, Company in excess of $500,00050,000 in any fiscal year of the Company;
(biv) collective bargaining agreements and any other contracts with any labor unions;
(c) Contracts (other than Benefit Plans) for contract relating to the employment borrowing of money or engagement guaranty of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation indebtedness in excess of $150,000 per year50,000 in any fiscal year of the Company;
(dv) Contracts evidencing Indebtedness of the Target Companies in excess of $50,000, including any loan collective bargaining agreement or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to which other agreement with any Target Company has guaranteed any liabilities or obligations of any of Personlabor union;
(evi) any contract granting a first refusal, first offer or similar preferential right to purchase or acquire any of the LeasesCompany's capital stock or assets;
(fvii) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target contract limiting, restricting or prohibiting the Company that restricts a Target Company from conducting business anywhere in the United States or elsewhere in the world or any contract limiting the freedom of its Affiliates from (i) engaging the Company to engage in any line of business or geographic region to compete in any respects with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(iviii) Contracts that contain any joint venture or provide for “most favored nations” termspartnership agreement;
(jix) Contracts with contracts requiring future payments of $50,000 or more in any Governmental Authorityfiscal year of the Company;
(kx) Contracts entered into in connection any employment contract, severance agreement or other similar binding agreement or policy with any merger, consolidation officer or other business combination, or with respect to director of the acquisition or disposition of Company;
(xi) any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith contract (other than sales of assets in the ordinary course of business);
(l"shrink-wrap," "click wrap" or similar contracts for widely distributed commercially available software) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreementsor with exclusive arrangements for product distribution, partnership agreementsdevelopment, Tax Sharing Agreements marketing, branding or joint venture agreements that involve a sharing of profitsservices, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoeversoftware licenses; and
(oxii) Contracts related any contract the breach of which by the Company could reasonably be expected to capital projects and capital expenditures result in damages in excess of $100,000 individually or $250,000 50,000 payable by the Company. The Company has made available to Itron a true and complete copy of each Material Contract (and a written description of each oral Material Contract is included in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a4.1(d) of the Company Disclosure Schedule), including all amendments or other modifications thereto. Except as set forth on Section 4.1(d) of the Company Disclosure Schedule, to the Company's Knowledge, each Material Contract is a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, subject only to bankruptcy, reorganization, receivership or other laws affecting creditors' rights generally and general principles of equity (whether applied in an action at law or in equity). Except as set forth on Section 4.1(d) of the Company Disclosure Schedule, the Company has made available performed, or will perform when due, all obligations required to Purchaser true be performed by it under the Material Contracts and complete copies the Company is not in breach or default thereunder, except for breaches of each and defaults under the Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Contracts that would not have a Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and, to Adverse Effect on the Company’s . To the Company's Knowledge, the other parties thereto in accordance with their terms, except to the extent enforcement may be affected by Enforceability Exceptions. Each Target Company that is a no party to a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract anddefault thereunder, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s 's Knowledge, is there any event that with notice or lapse of time, or both, would constitute a default by the Company or, to the Company's Knowledge, any other party theretothereunder, is in breach of or except for such default under the Material Contracts that would not have a Material Adverse Effect on the Company. In addition, except as set forth on Section 4.1(d) of the Company Disclosure Schedule or as would otherwise not have a Material Adverse Effect on the Company, the Company has:
(xiii) no contracts with directors, officers, stockholders, employees, agents, consultants, advisors, salespeople, sales representatives, distributors or is alleged dealers that cannot be canceled by the Company within 30 days' notice without liability, penalty or premium
(xiv) no agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings, or any compensation agreement or arrangement affecting or relating to be in breach or default under). The Company has neither provided nor former employees of the Company;
(xv) not received any notice that any party to a contract listed in Section 4.1(d) of the Company Disclosure Schedule intends to cancel, terminate or refuse to renew such contract (if such contract is renewable);
(xvi) no material dispute with any intention to terminate any Material Contract. To of its suppliers, customers, distributors, OEM resellers, licensors or licensees; or
(xvii) except for existing agreements with officers and directors of the Company’s KnowledgeCompany disclosed in Section 4.1(d) of the Company Disclosure Schedule, no Occurrence has occurred agreements or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereundercommitments to provide indemnification.
Appears in 1 contract
Sources: Merger Agreement (Itron Inc /Wa/)
Material Contracts. Section 3.10 of the Disclosure Schedule contains a 4.20 sets forth an accurate, correct and complete list of all instruments, commitments, agreements, arrangements and understandings related to the following types of Contracts (and each amendment Business or modification thereto) the Purchased Assets to which any Target Company Seller is a partyparty or bound, or by which such Target Company or any of its properties or assets are subject or bound, as or pursuant to which Seller is a beneficiary, meeting any of the date of this Agreement descriptions set forth below (such the "Material Contracts, together with the Intellectual Property Licenses, each, a “Material Contract”"):
(a) Other than Contracts with Material Suppliers Real Estate Leases, Insurance, licenses of Intellectual Property, Technical Information, Employment Contracts, Benefit Plans and Contracts with Material Customers, Contracts pursuant to which any Target Company (i) made payments to any third party in the twelve (12) month period prior to the date hereof, in excess of $500,000; or (ii) received payments from any third party in the twelve (12) month prior to the date hereof, in excess of $500,000Licenses and Permits;
(b) collective bargaining agreements and any other contracts with any labor unionscontract for capital expenditures or for the purchase of goods or services in excess of $25,000;
(c) Contracts any purchase order, agreement or commitment obligating Seller to sell or deliver any product or service at a price which does not cover the cost (other than Benefit Plansincluding labor, materials and production overhead) for plus the employment customary profit margin associated with such product or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation in excess of $150,000 per yearservice;
(d) Contracts any financing agreement or other agreement for borrowing money, any instrument evidencing Indebtedness indebtedness, any liability for borrowed money, any obligation for the deferred purchase price of the Target Companies property in excess of $50,000, including any loan or credit agreements, promissory notes, security agreements, pledge agreements, mortgages25,000 (excluding normal trade payables), or similar letters of creditany instrument guaranteeing any indebtedness, obligation or pursuant to which any Target Company has guaranteed any liabilities or obligations of any of Personliability;
(e) the Leasesany joint venture, partnership, cooperative arrangement or any other agreement involving a sharing of profits;
(f) Contracts any contract with Material Suppliersany government or any agency or instrumentality thereof;
(g) Contracts any contract with Material Customersrespect to the discharge, storage or removal of effluent, waste or pollutants;
(h) Contracts containing any covenant of a Target Company that restricts a Target Company distribution, license or any of its Affiliates from royalty agreement;
(i) engaging any power of attorney, proxy or similar instrument;
(j) any contract for the purchase or sale of any assets of Seller (whether or not completed) other than in the ordinary course of business or granting an option or preferential rights to purchase or sell any assets;
(k) any contract to indemnify any party or to share in or contribute to the liability of any party;
(l) any contract containing covenants not to compete in any line of business or geographic region with any Person, (ii) soliciting person in any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
(i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into in connection with any merger, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceedinggeographical area;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements any contract relating to the acquisition of a business or joint venture agreements that involve a sharing the equity of profits, losses, costs or liabilities by any Target Company with any other Person.person (whether or not completed);
(n) outstanding powers-of-attorney granted any contract relating to the purchase or sale of a portion of its requirements or output;
(o) any other contract, commitment, agreement, arrangement or understanding related to the Business (other than those excluded by an express exception from the Company descriptions set forth in the subsections above) which provides for any purpose whatsoeverpayment or performance by either party thereto having an aggregate value of $25,000 or more (unless terminable without payment or penalty on sixty (60) days (or less) notice); and
(op) Contracts related to capital projects and capital expenditures in excess any proposed arrangement of $100,000 individually or $250,000 in the aggregatea type that if entered into would be a Material Contract. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) of the Disclosure ScheduleAccurate, the Company has made available to Purchaser true correct and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder)have been delivered to Buyer. Each Material Contract is in full force and effect and is valid valid, binding and enforceable against the applicable Target Company and, Seller and to the Company’s KnowledgeSeller's and Parent's knowledge, the other parties thereto to the Material Contract in accordance with their its terms. Seller and to Seller's, except PDMI's and Parent's knowledge the other parties to each Material Contract, has complied with all commitments and obligations on its part to be performed or observed under each Material Contract. No event has occurred which is or, after the giving of notice or passage of time, or both, would constitute a default under or a breach of any Material Contract by Seller, or, to the extent enforcement may be affected knowledge of Seller, PDMI and Parent, by Enforceability Exceptionsany other party. Each Target Company that is a party Seller has not received or given notice of an intention to cancel or terminate a Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract and, or to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material respects with the terms and requirements of such exercise or not exercise options or rights under a Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company Seller has neither provided nor not received any notice of any intention to terminate a default, offset or counterclaim under any Material Contract. To the Company’s Knowledge, no Occurrence has occurred or exists which, with notice or lapse of time or both, may give rise to, serve as a basis for, or would constitute an event any other communication calling upon Seller to comply with any provision of default any Material Contract or ascertaining noncompliance. Except as set forth on Schedule 4.20, none of the rights of Seller under any Material Contract will be impaired by the consummation of the transactions contemplated by this Agreement, and all of such rights will be enforceable by Buyer after the Closing Date without the consent or result in a termination thereof or would cause or permit the acceleration or other changes agreement of any right other party, including all rights to renew the applicable Material Contract. At Closing, Seller shall deliver to Buyer any consents or obligation or the loss approvals of any material benefit thereunderparties required with respect to the assignment of the Assumed Contracts in connection with the transactions contemplated hereby. Seller has delivered accurate, correct and complete copies of each Material Contract to Buyer. Except as set forth on Schedule 4.20, no Material Contract permits or requires Seller (A) to obtain goods, services or benefits on terms substantially more favorable than fair market terms or (B) to provide goods, services or benefits on terms substantially less favorable than fair market terms. With respect to each Material Contract which is to be assigned to Buyer pursuant to the terms hereof, except as set forth on Schedule 4.20, Buyer will succeed to all the rights and benefits of Seller. Seller has not granted any powers of attorney with respect to the Business. The consummation of the transactions contemplated hereby, without notice to or consent or approval of any party, will not constitute a default under or a breach of any provision of a Material Contract, and Buyer will have and may enjoy and enforce all rights and benefits under each Material Contract in the same manner as if the transactions contemplated hereby were not consummated. There is no security interest, lien, encumbrance or claim of any kind on Seller's interest under any Material Contract.
Appears in 1 contract
Material Contracts. Section 3.10 of the Disclosure Schedule contains (a) The Company VDR sets forth a true, correct and complete list of the following types of all Contracts described in clauses (and each amendment or modification theretoi) through (xii) below to which any Target Company is a party, party or by which such any Target Company Company, or any of its properties or assets are boundbound (each such Contract, as of the date of this Agreement (such Contracts, together with the Intellectual Property Licenses, eachother than a Company Benefit Plan, a “Company Material Contract”):) and the Company has made available to Purchaser, true, correct and complete copies of, each:
(ai) Other than Contracts with Material Suppliers and Contracts with Material Customers, Contracts pursuant to which contains covenants that materially limit the ability of any Target Company (iA) made payments (1) to compete in any third party line of business, with any Person or in any geographic area, (2) to sell or provide any service or product or (3) to solicit any Person, other than in respect of customary non-disclosure agreements entered into by any Target Company in the twelve ordinary course of business or (12B) month period prior to purchase or acquire an interest in any other Person;
(ii) providing for the date hereofformation of any joint venture or profit-sharing agreement or arrangement;
(iii) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of any Target Company having an outstanding principal amount in excess of $500,000; 250,000 between the Company and any Subsidiary;
(iv) was entered into during the past three (3) years involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $5,000,000 (other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, (B) in the ordinary course of business consistent with past practice or (iiC) received between the Company and any Subsidiaries);
(v) relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of any Target Company, its business or material assets;
(vi) by its terms, individually or with all related Contracts, calls for aggregate payments from any or receipts by the Target Companies under such Contract or Contracts of at least $250,000 per year or $500,000 in the aggregate;
(vii) obligates the Target Companies to provide continuing indemnification or a guarantee of obligations of a third party in the twelve (12) month prior to after the date hereof, hereof in excess of $500,000;
(bviii) collective bargaining agreements is between any Target Company and any directors, officers or employees of a Target Company (other contracts than at-will employment arrangements, employee confidentiality and invention assignment agreements or equity or incentive equity agreements with employees entered into in the ordinary course of business consistent with past practice) or any labor unionsRelated Person;
(cix) Contracts (other than Benefit Plans) for obligates the employment Target Companies to make any capital commitment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis that provide annual cash compensation expenditure in excess of $150,000 per year500,000 (including pursuant to any joint venture);
(dx) Contracts evidencing Indebtedness relates to a material settlement entered into within two (2) years prior to the date of the Target Companies in excess of $50,000, including any loan this Agreement or credit agreements, promissory notes, security agreements, pledge agreements, mortgages, or similar letters of credit, or pursuant to under which any Target Company has guaranteed any liabilities or outstanding obligations (other than customary confidentiality obligations) that would be reasonably likely to involve payments in excess of any $500,000 after the date of Personthis Agreement;
(exi) the Leases;
provides another Person (f) Contracts with Material Suppliers;
(g) Contracts with Material Customers;
(h) Contracts containing any covenant of a Target Company that restricts a other than another Target Company or any shareholder, manager, director or officer of its Affiliates from any Target Company) with a power of attorney; or
(xii) the termination of which, would be otherwise material to the Target Companies, taken as a whole and not covered by clauses (i) engaging through (x) above.
(b) Except as set forth in any line of business or geographic region Schedule 6.12(b), with any Person, (ii) soliciting any customers, suppliers, employees or contractors of any other Person, or (iii) competing with any Person;
respect to each Company Material Contract: (i) Contracts that contain or provide for “most favored nations” terms;
(j) Contracts with any Governmental Authority;
(k) Contracts entered into such Company Material Contract is valid and binding and enforceable in connection with any mergerall respects against such Target Company party thereto and, consolidation or other business combination, or with respect to the acquisition or disposition of any business, assets or securities, or any equity or debt investment in or any loan to any Person; provided, that the foregoing shall not apply to non-disclosure agreements entered into in connection therewith (other than sales of assets in the ordinary course of business);
(l) Contracts providing for the settlement of any material Proceeding;
(m) limited liability company agreements, partnership agreements, Tax Sharing Agreements or joint venture agreements that involve a sharing of profits, losses, costs or liabilities by any Target Company with any other Person.
(n) outstanding powers-of-attorney granted by the Company for any purpose whatsoever; and
(o) Contracts related to capital projects and capital expenditures in excess of $100,000 individually or $250,000 in the aggregate. Other than the Intellectual Property Licenses that the Company is not required to disclose on Section 3.17(a) Knowledge of the Disclosure ScheduleCompany, the Company has made available to Purchaser true each other party thereto, and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder). Each Material Contract is in full force and effect and is valid and enforceable against the applicable Target Company and(except, to the Company’s Knowledgein each case, the other parties thereto in accordance with their terms, except to the extent as such enforcement may be affected limited by the Enforceability Exceptions. Each ), in each case, except as would not be reasonably expected to be, individually or in the aggregate, material to the Target Companies, taken as a whole; (ii) the consummation of the Transactions will not affect the validity or enforceability of any Company that is a party to a Material Contract is Contract; (iii) the Target Companies are not in compliance in all material respects with breach of or default under the terms and requirements of such any Company Material Contract and, to the Knowledge of the Company’s Knowledge, each no other Person that is party to such any Company Material Contract is in compliance in all material respects with the terms and requirements of such Material Contract. Neither the Company nor, to the Company’s Knowledge, any other party thereto, is in breach of or default under (or is alleged to be in breach or default under). The Company has neither provided nor received any notice the terms of any intention to terminate any Company Material Contract. To the Company’s Knowledge, and no Occurrence event has occurred or exists whichnot occurred through any of the Target Companies’ action or inaction or, to the Knowledge of the Company, through the action or inaction of any third party, that with notice or the lapse of time or bothboth would constitute a breach of or default under the terms of any Company Material Contract, may give rise toin each case, serve except as would not reasonably expected to be, individually or in the aggregate, material to the Target Companies, taken as a basis for, or would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunderwhole.
Appears in 1 contract