Material Contracts. (i) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”): (A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials; (B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area; (C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person; (D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees; (E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP; (F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets; (G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials; (H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller; (I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors); (J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements; (K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product; (L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product; (M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product; (N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and (O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance. (ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement. (iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000. (iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Immunome Inc.), Asset Purchase Agreement (Ayala Pharmaceuticals, Inc.)
Material Contracts. (a) Except for this Agreement or as set forth in Section 3.17 of the Company Disclosure Schedules, and other than any Company Plans, as of the Agreement Date, none of the Company or any of the Company Subsidiaries is a party to or bound by (each of the following, together with the engagement letters set forth on Section 3.8 of the Company Disclosure Schedules, a “Company Material Contract”):
(i) Section 5.1(i)(iany Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the Disclosure Schedules sets forth a true and accurate list of each Contract (SEC, other than purchase orders issued by Seller to a Third Party that are ancillary to another written those agreements and arrangements described in Item 601(b)(10)(iii);
(ii) any Contract with a related person (as defined in Item 404 of Regulation S-K of the same Third Party Securities Act) that would be required to be disclosed in the Company SEC Reports but has not been disclosed;
(iii) any Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, or offer for purchase or sale of any business, stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) any Contract relating to the borrowing or lending of Indebtedness in excess of $50,000 (whether incurred, assumed, guaranteed or secured by any asset);
(v) any Contract that is a settlement, conciliation or similar agreement between the Company or any Company Subsidiary and that do not constitute an Assumed Liability) in effect as of any Governmental Authority pursuant to which the Company or a Company Subsidiary will be required after the date of this Agreement to which Seller is a party pay any material monetary obligations;
(vi) any Contract between the Company or which was entered into by or any Company Subsidiary, on behalf of Sellerthe one hand, or by which and any of third Person, on the Acquired Assets is bound in the following categories (the “Material Contracts”):
other hand (A) materially limiting the freedom or right of the Company or any Company Subsidiary (or, following the Closing, Parent or any of its Affiliates) to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of the Company or any Company Subsidiary to solicit, sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person;
(vii) any Contract establishing between the Company or any Company Subsidiary and a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another third Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller (A) relating to the Acquired Assets or the Development, manufacture, or Commercialization disposition of any Compound assets or Product, including business of the conduct Company and the Company Subsidiaries with a fair market value in excess of any clinical trials;
$50,000 or (B) relating to the acquisition of any Contract containing covenants prohibiting assets or limiting business of, or ownership interests in, any third Person with a fair market value in excess of $50,000, in each case of clauses (A) and (B), whether by merger, sale of stock or assets or otherwise, and that contains continuing indemnities or other material obligations or any continuing “earn-out” or other contingent payment obligation on the right to compete or engage in any aspect part of the Product Operations Company or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;Company Subsidiary;
(Cviii) any Contract granting most favored nation between the Company or exclusive rights relating to any Compound Company Subsidiary and any third Person that establishes a joint venture, partnership or Product to any other Person;limited liability company;
(Dix) any Contract that by its express terms requires the Company or any Company Subsidiary, or any successor to, or acquirer of, the Company or any Company Subsidiary, to make any material payment to another Person as a result of a change of control of the Company or any such Company Subsidiary (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(x) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of the Company or any Company Subsidiary, the pledging of the capital stock or other equity interests of the Company or any Company Subsidiary or the issuance of any guaranty by the Company or any Company Subsidiary;
(xi) any Contract (excluding in each case Contracts entered into in the ordinary course of business consistent with past practice and agreements with employees or independent contractors) pursuant to which Seller has obtained (a) both (i) the Company or any Company Subsidiary is granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract)a license to, including any covenant not to enforce sue under, any material Intellectual Property Right owned by any third party that is necessary for or assertused by the Company or any Company Subsidiary in their respective businesses as currently conducted, and (ii) that requires by its terms or is reasonably expected to require the payment or delivery by the Company or any Company Subsidiary in an amount having an expected value in excess of $50,000 in the fiscal year ending December 31, 2024, or (b) both (i) the Company or any Company Subsidiary grants a third party a license to, including any existing license agreement relating covenant not to sue under, any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any material Company Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses that requires by its terms or is reasonably expected to Intellectual Property Rights included require the payment or delivery by the counterparty thereto of cash or other consideration to the Company or any Company Subsidiary in an amount having an expected value in excess of $50,000 in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical studyfiscal year ending December 31, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees2024;
(Exii) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IPCBAs;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nxiii) any Contract with any supplier that involved the payment of more than $50,000 in the Company’s last fiscal year;
(xiv) any material Contract with any university or other academic institution, research center, international organization or Governmental Authority relating to having an expected value in excess of $50,000 in the fiscal year ending December 31, 2024, or in any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Sellersingle fiscal year thereafter, other than any sponsored research agreements, clinical trial site agreements, material transfer agreements, sponsorship agreements or grant agreements entered into in the ordinary course of business;
(xv) any Contract relating to that indemnifies any director or executive officer of the Company or any Company Subsidiary (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien indemnification provisions set forth in the certificate of incorporation or bylaws or comparable governing documents of the Company or any Company Subsidiary or Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Parent); or
(xvi) any Acquired Asset, Contract that requires any capital commitment or capital expenditure (ivor series of capital expenditures) general administration expenses, by the Company or (v) insuranceany Company Subsidiary after the date hereof in an amount in excess of $50,000 in the aggregate.
(iib) All Each of the Company Material Contracts are Contract is in full force and effect, and represents a valid and binding agreements obligation of Sellerthe Company or a Company Subsidiary, enforceable in accordance with their terms, subject to its terms against the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available Company or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To Company Subsidiary (as the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orcase may be) and, to the Knowledge of Sellerthe Company, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person party thereto, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity). Neither the Company nor any writtenCompany Subsidiary is in material breach of or default, with or without notice, lapse of time or both, under any Company Material Contract, nor, to the Knowledge of Seller otherCompany’s Knowledge, notice regarding is any material violation or breach of, or default under, other party to any such Company Material Contract or Nondisclosure AgreementContract.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (NeuroMetrix, Inc.), Merger Agreement (electroCore, Inc.)
Material Contracts. (a) Except as disclosed in Section 3.18 of the NAPW Disclosure Schedule, and except for this Agreement, NAPW is not bound by any contract, arrangement, commitment or understanding:
(i) Section 5.1(i)(i) of the Disclosure Schedules sets forth that constitutes a true partnership, joint venture, technology sharing or similar agreement between NAPW and accurate list of each Contract (any other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsperson;
(Bii) with respect to the service of any Contract containing covenants prohibiting directors, officers, employees, or limiting independent contractors or consultants that are natural persons, involving the right payment of $100,000 or more in any 12 month period, other than those that are terminable by NAPW on no more than 30 days’ notice without penalty;
(iii) that limits the ability of NAPW to compete or engage enter into in any aspect line of the Product Operations business, in any geographic area or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business person and, in each case, which limitation or requirement would reasonably be expected to be material to NAPW;
(iv) with or to a labor union, works council or guild (including any collective bargaining agreement or similar agreement);
(v) relating to the use or right to use Intellectual Property, including any license or royalty agreements, other than agreements entered into in the ordinary course of business and that are not Acquired Business Contracts and are deemed Excluded Liabilities: material to NAPW;
(ivi) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses that provides for indemnification by NAPW to Intellectual Property Rights included any person, other than an agreement entered into in the Acquired Assets for the sole purpose ordinary course of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators business and clinical sites for the conduct of a clinical study, which study that is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses not material to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesNAPW;
(vii) between NAPW and any current or former director or officer of NAPW, or any affiliate of any such person (other than NAPW Benefit Plan);
(viii) with respect to (A) Indebtedness, (B) any capital lease obligations to any person other than NAPW, (C) any obligations to any person other than NAPW in respect of letters of credit and bankers’ acceptances, (D) any indebtedness to any person other than NAPW under interest rate swap, hedging or similar agreements, (E) any Contract under which Seller pays or receives milestone or royalty payments relating obligations to pay to any Compound person other than NAPW the deferred purchase price of property or Product or any Product IP;
services, (F) indebtedness secured by any Contract relating to the creation of Liens Lien on any Acquired Assets property owned by NAPW even though the obligor has not assumed or the guarantee of otherwise become liable for the payment of Liabilities thereof, or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement guaranty of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct such obligations described in clauses (A) through (F) of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, person other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or ProductNAPW, in each case, having an outstanding amount in excess of $250,000 individually or $500,000 in the aggregate;
(ix) that is material to NAPW or that contains any so called “most favored nation” provision or similar provisions requiring NAPW to offer to a person any terms or conditions that are at least as currently conducted by Sellerfavorable as those offered to one or more other persons;
(x) pursuant to which any agent, sales representative, distributor or other third party markets or sells any NAPW Product;
(xi) pursuant to which NAPW is a party granting rights of first refusal, rights of first offer or similar rights to acquire any business or assets of NAPW;
(xii) relating to the purchase or sale of assets outside the ordinary course of business of NAPW;
(xiii) relating to the issuance of any securities of NAPW (other than those set forth on Section 3.2(a) to the Disclosure Schedule);
(xiv) pursuant to which any material asset of NAPW is leased;
(xv) relates to the purchase of (A) any equipment entered into since December 31, 2013 and (B) any materials, supplies, or inventory since December 31, 2013, other than any Contract relating agreement which, together with any other related agreement, involves the expenditure by the NAPW of less than $100,000;
(xvi) that represents a purchase order with any supplier for the purchase of inventory items in an amount in excess of $100,000 of materials;
(xvii) pursuant to which NAPW is a party and having a remaining term of more than one (i1) real propertyyear after the date hereof or involving a remaining amount payable thereunder (either to or from NAPW) as of the date hereof, of at least $100,000;
(iixviii) employeesthat involves the payment of $250,000 or more in any 12 month period after the date hereof; or
(xix) that would prevent, delay or impede the consummation, or employee compensation otherwise reduce the contemplated benefits, of any of the transactions contemplated by this Agreement. NAPW has previously made available to PDN or benefit matters, including any Employee Benefit Plan, its representatives complete and accurate copies of each Contract of the type described in this Section 3.18(a) (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancecollectively referred to herein as “NAPW Material Contracts”).
(iib) All of the NAPW Material Contracts were entered into at arms’ length in the ordinary course of business and are valid and binding agreements of Sellerin full force and effect, enforceable except to the extent they have previously expired in accordance with their terms. NAPW has not given or received a notice of cancellation or termination under any NAPW Material Contract, subject or has, or is alleged to have, and to the Enforceability Exception. Other than Material Contracts entered into on behalf knowledge of SellerNAPW, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any none of the Material Contracts other parties thereto have, violated any provision of, or Nondisclosure Agreementscommitted or failed to perform any act, and no event has occurred that or condition exists, which with notice or without notice, lapse of time, time or both, both would constitute a material default by Seller under the provisions of, any NAPW Material Contract.
(c) NAPW is not in breach of or default under the terms of any NAPW Material Contract, except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a NAPW Material Adverse Effect. To the Knowledge knowledge of SellerNAPW, no other party to a any NAPW Material Contract is in material breach of or default under the terms of any NAPW Material Contract except for any such breach or material default of such that has not had and would not reasonably be expected to have, individually or in the aggregate, a NAPW Material Adverse Effect. Each NAPW Material Contract is a valid and no event has occurred that with notice or lapse binding obligation of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orNAPW and, to the Knowledge knowledge of SellerNAPW, otherwise provided notice of its intention each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to repudiate any provision applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of a Material Contract or Nondisclosure Agreement. Seller has not given specific performance and injunctive and other forms of equitable relief may be subject to or received from any other Person any written, or equitable defenses and to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As discretion of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, court before which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000any proceeding therefor may be brought.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Ladurini Daniel), Merger Agreement (Professional Diversity Network, Inc.)
Material Contracts. (a) Except as set forth in Section 3.19 of the Issuer Disclosure Schedule or filed in Issuer’s periodic reports filed with the SEC and publicly available at least two Business Days prior to the date hereof, neither Issuer nor any of its Subsidiaries is a party to or bound by:
(i) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of each any Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) relating to the employment of, or the performance of services by, any director, employee or consultant, (B) the terms of which obligate or may in the future obligate Issuer or any of its Subsidiaries to make any severance, termination or similar payment to any current or former employee, (C) pursuant to which Issuer or any of its Subsidiaries may be obligated to make any bonus or similar payment to any current or former employee or director or (D) that is a Collective Bargaining Agreement;
(ii) any Contract establishing relating to any partnership, joint venture, strategic alliance, collaboration, material research and development project or other similar arrangement;
(iii) any Contract (excluding licenses for commercial off the shelf computer software that are generally available on nondiscriminatory pricing terms) pursuant to which Issuer or any of its Subsidiaries (A) obtains the right to use, or a joint venture covenant not to be sued under, any Intellectual Property Right or (B) grants the right to use, or a covenant not to be sued under, any Intellectual Property Right;
(iv) any Contract with any Governmental Authority;
(v) any Contract with sole-source or single-source suppliers of material tangible products or services or pursuant to which either Issuer or any of its Subsidiaries has agreed to purchase a minimum quantity of goods relating to any product or product candidate or has agreed to purchase goods relating to any product or product candidate exclusively from a certain party;
(vi) any Contract (A) that relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization manufacturing of any Compound Product or Product, including (B) that otherwise provides for the conduct purchase or sale of products or services by Issuer or any clinical trialsof its Subsidiaries in excess of $100,000;
(Bvii) any stockholders, investors rights, registration rights, tax receivables or similar or related Contract or arrangement;
(viii) any Contract containing covenants prohibiting “most favored nation” or limiting the similar preferential pricing provisions, any exclusive dealing arrangement or any arrangement that grants any right to compete of first refusal, first offer, first negotiation or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areasimilar preferential right;
(Cix) any Contract granting most favored nation (A) that obligates Issuer (together with its Subsidiaries) to make aggregate payments in excess of (x) $100,000 in the current or exclusive rights relating any future calendar year or (y) $250,000 in the aggregate, (B) related to an acquisition or divestiture that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations) or (C) pursuant to which Issuer or any Compound of its Subsidiaries has continuing obligations or Product to interests involving the payment of royalties or other amounts calculated based upon the revenues or income of Issuer or any of its Subsidiaries or any other Personmaterial contingent payment obligations, in each case that is not terminable by Issuer or its Subsidiaries without penalty without more than 60 days’ notice;
(Dx) any Lease, except as identified on Section 3.14(b) of the Issuer Disclosure Schedule;
(xi) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but provides for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee indemnification of any Intellectual Property Rights relating to any Compound current or Product former officer, director or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesemployee;
(Exii) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product for the disposition of all or any Product IPsignificant portion of the assets or business of Issuer or any of its Subsidiaries or for the acquisition, directly or indirectly, of a material portion of the assets or business of any other Person (whether by merger, sale of stock or assets or otherwise);
(Fxiii) any Contract relating to indebtedness for borrowed money, any guarantees thereof or the creation granting of Liens on any Acquired Assets over the property or the guarantee assets of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Issuer or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialsSubsidiaries;
(Hxiv) any Contract that limits Seller’s ability relating to make generally available any versions loan or other extension of credit made by Issuer or any Compound or Product developed by or for Sellerof its Subsidiaries;
(Ixv) any Contract for containing any provision or covenant limiting in any material respect the research ability of Issuer or Development any of its Subsidiaries to (A) sell any products or services of or to any other Person or in any geographic region, (B) engage in any line of business or (C) compete with or to obtain products or services from any Person, or limiting the ability of any Compound Person to provide products or Product, other than services to Issuer or any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)its Subsidiaries;
(Jxvi) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testingrequiring Issuer, or storage any successor thereto or acquirer thereof, to make any payment whether severance or otherwise to another Person related to, in connection with, or as a result of the active pharmaceutical ingredients and other raw materials for any Compound a change of control of Issuer (a “Change of Control Payment”) or Product, and related quality agreements;that gives a Third Party a right to receive or elect to receive a Change of Control Payment; or
(xvii) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to Issuer and its Subsidiaries, taken as a whole (all Contracts of the Development, manufacture or sale of any Compound or Product, type described in each case, this Section 3.19(a) being referred to herein as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance“Material Contracts”).
(iib) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller Issuer has made available or delivered to Purchaser prior to the date hereof a true, correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any .
(i) Each of the Material Contracts is valid, binding and in full force and effect and (ii) neither Issuer nor any of its Subsidiaries, nor, to Issuer’s Knowledge, any other party to a Material Contract, has breached or Nondisclosure Agreementsviolated in any material respect any provision of, and no event has occurred that or taken or failed to take any act which, with notice or without notice, lapse of time, or both, would constitute a breach or a default under the provisions of such Material Contract, and neither Issuer nor any of its Subsidiaries has received notice that it has breached, violated or defaulted in any material default by Seller respect under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (ONCOSEC MEDICAL Inc), Stock Purchase Agreement (ONCOSEC MEDICAL Inc)
Material Contracts. (ia) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as As of the date of this Agreement to which Seller Agreement, neither the Company nor any of its Subsidiaries is a party to or which was entered into bound by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC) (other than any Company Benefit Plan);
(ii) any Contract with any of its directors or officers (other than any Company Benefit Plan);
(iii) any Contract that (A) imposes any material restriction on behalf the right or ability of Sellerthe Company or any of its Subsidiaries to compete with any other Person or solicit any client or customer or (B) following the Closing will materially restrict the ability of Parent or its Subsidiaries to so compete or solicit;
(iv) any material Contract with a customer that obligates the Company or its Subsidiaries (or following the Closing, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or that contains “most favored nation” or similar covenants;
(v) any Contract relating to Indebtedness (other than intercompany Indebtedness owed by the Company or any wholly owned Subsidiary to any other wholly owned Subsidiary, or by which any wholly owned Subsidiary to the Company) of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $50,000,000.00, other than the Acquired Assets is bound in Credit Agreement and the following categories (the “Material Contracts”):Company Notes and related indentures;
(Avi) any Contract establishing a joint venture that grants any right of first refusal, right of first offer or collaborationsimilar right with respect to any material assets, co-promotion rights or like arrangement, properties of the Company or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsits Subsidiaries;
(Bvii) any Contract containing covenants prohibiting that provides for the acquisition or limiting disposition, directly or indirectly, of any assets (other than acquisitions or dispositions of sale in the right to compete ordinary course of business) or engage in business (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations Person, and with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites outstanding obligations as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as , in each case with a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesvalue in excess of $10,000,000.00;
(Eviii) any Contract under which Seller pays joint venture, partnership or receives milestone limited liability company agreement or royalty payments relating to any Compound or Product or any Product IP;
(F) any other similar Contract relating to the creation of Liens on any Acquired Assets formation, creation, operation, management or the guarantee of the payment of Liabilities or performance of obligations control of any material joint venture, partnership or limited liability company, other Person by Seller relating to than any Compound such Contract solely between the Company and its wholly owned Subsidiaries or Product or any Acquired Assetsamong the Company’s wholly owned Subsidiaries;
(Gix) any Contract entered into by Seller with an affiliate or other Person that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(x) any Contract (A) with any customer that is one of the Top Customers or (B) with any supplier that is one of the Top Suppliers;
(xi) any Contract pursuant to which the Company or any of its Affiliates in settlement of any Legal Proceeding Subsidiaries has purchased, licensed or other dispute relating sold during the twelve months prior to the Acquired Assets date hereof, goods or services that involved payment by or to the Product OperationsCompany and its Subsidiaries in excess of $40,000,000.00 during such period or that provides for payments in excess of such amount over the remaining term of such agreement (in each case, including the conduct whether under a single agreement or a series of any clinical trialsrelated agreements);
(Hxii) any Contract that limits Seller’s ability pursuant to make which (A) the Company or any of its Subsidiaries grants to any third party any license, release, covenant not to ▇▇▇ or similar right with respect to any material Intellectual Property owned by the Company or any of its Subsidiaries, or (B) the Company or any of its Subsidiaries receives a license, release, covenant not to ▇▇▇ or similar right with respect to any material Intellectual Property owned by a third party (other than generally commercially available any versions of any Compound or Product developed by or for Seller;software in object code form); and
(Ixiii) any material Contract for the research or Development of any Compound other Contract that contains “most favored nation” or Product, other than any similar covenant with respect to pricing terms or requires on-going reporting obligations of the following entered into in the Ordinary Course of Business andCompany and/or its Subsidiaries, in each case to which the Company or any of its Subsidiaries is a party and any counterparty is a Governmental Entity (or the counterparty has represented in writing to the Company or any of its Subsidiaries that are not Acquired Business Contracts and are deemed Excluded Liabilities: it is a prime contractor or subcontractor to a Governmental Entity). All contracts of the types referred to in clauses (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; through (iixiii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with above are referred to herein as “Company Material Contracts.”
(b) Neither the regulatory and ethics committee submissions and data processing activities for clinical studies outside Company nor any Subsidiary of the U.S. (other than local representative agreements and legal representative agreements Company is in breach of or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses default in any respect under the terms of any Company Material Contract and, to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage knowledge of the active pharmaceutical ingredients and Company, as of the date hereof, no other raw materials for party to any Compound Company Material Contract is in breach of or Product, and related quality agreements;
(K) default in any Contract for respect under the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials terms of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Company Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s knowledge, prior to the date hereof through the action or inaction of any third party, that with notice or the lapse of time, time or both, both would constitute a material breach of or default by Seller or result in the termination of or a right of termination or cancelation thereunder, accelerate the performance or obligations required thereby, or result in the loss of any benefit under the terms of any Company Material Contract, in each case except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To Each Company Material Contract (i) is a valid and binding obligation of the Knowledge Company or the Subsidiary of Sellerthe Company that is party thereto and, to the knowledge of the Company, of each other party thereto, and (ii) is in full force and effect, subject to the Enforceability Exceptions, in each case except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no disputes pending or, to the Company’s knowledge, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to a Company Material Contract is in material breach to terminate for default, convenience or material default of such otherwise any Company Material Contract and no event has occurred that with notice or lapse of timeContract, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, nor to the Knowledge of SellerCompany’s knowledge, otherwise provided notice of its intention is any such party threatening to repudiate any provision of do so, in each case except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementAdverse Effect.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Valspar Corp), Merger Agreement (Sherwin Williams Co)
Material Contracts. (ia) Except for this Agreement, agreements filed as exhibits to the Company SEC Documents or as set forth in Section 5.1(i)(i) 3.21 of the Company Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of SellerSchedules, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; , neither the Company nor any of its Subsidiaries is a party to or expressly bound by any Contract (ivexcluding any Company Benefit Plan) licenses to commercially available software or cloud or software that:
(i) would constitute a “material contract” (as a service agreements; and (vsuch term is defined in Item 601(b)(10) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesof Regulation S-K of the Securities Act);
(Eii) any Contract under is a Company Real Property Lease pursuant to which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates Subsidiaries leases real property that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) contains restrictions on the right of the Company or any of its Subsidiaries to engage in settlement activities competitive with any Person or to solicit customers or suppliers anywhere in the world, other than restrictions (A) pursuant to limitations on the use by the Company or its Subsidiaries of rail lines set forth in the agreements conveying those lines or granting rights to operate them, (B) that are part of the terms and conditions of any Legal Proceeding “requirements” or other dispute relating similar agreement under which the Company or any of its Subsidiaries has agreed to procure goods or services exclusively from any Person, or (C) that are not material to the Acquired Assets or business of the Product OperationsCompany and its Subsidiaries, taken as a whole;
(iv) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the conduct of any clinical trialsCompany and its Subsidiaries;
(Hv) any Contract that limits Seller’s ability to make generally available any versions provides for the formation, creation, operation, management or control of any Compound joint venture, partnership or Product developed by or for Sellerother similar arrangement with a third party;
(Ivi) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any if its Subsidiaries (other than indebtedness among the Company and/or any of its Subsidiaries) in excess of $50 million;
(vii) is a settlement, conciliation or similar Contract that would require the Company or any of its Subsidiaries to pay consideration of more than $20 million after the date of this Agreement or that contains material restrictions on the business and operations of the Company or any of its Subsidiaries;
(viii) provides for the research acquisition or Development disposition by the Company or any of its Subsidiaries of any Compound business (whether by merger, sale of stock, sale of assets or Productotherwise), other than or any real property, that would, in each case, reasonably be expected to result in the receipt or making by the Company or any Subsidiary of the following entered into Company of future payments in excess of $25 million;
(ix) is an acquisition agreement that contains material “earn-out” or other material contingent payment obligations;
(x) obligates the Company or any Subsidiary of the Company to make any future capital investment or capital expenditure outside the Ordinary Course of Business and, and in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers excess of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)$50 million;
(Jxi) any Contract provides for the development, manufacture, supply, packaging, labeling, distribution, analytical testingprocurement of services or supplies from a Company Top Supplier by the Company or any of its Subsidiaries, or storage provides for sales to a Company Top Customer by the Company or any of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreementsits Subsidiaries;
(Kxii) limits or restricts the ability of the Company or any Contract for the ongoing of its Subsidiaries to declare or planned analytical testing pay dividends or storage make distributions in respect of biological specimens collected from subjects participating in clinical trials of any Compound their capital stock, partner interests, membership interests or Productother equity interests;
(Lxiii) other than any sales and marketing Contracts entered into the Ordinary Course of Business, is a Contract for pursuant to which the distributionCompany or any of its Subsidiaries is a party, promotionor is otherwise bound, marketingand the contracting counterparty of which (A) is a Governmental Entity or (B) to the Knowledge of the Company, reselling has entered into such Contract in its capacity as a prime contractor or other Commercialization subcontractor of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any a Governmental Authority relating Entity and such Contract imposes upon the Company obligations or other liabilities due to any Compound or Product such Governmental Entity; or
(xiv) is a Contract pursuant to which (A) the Company or any of the Acquired Assetsits Subsidiaries is granted any license or other right with respect to Intellectual Property of another Person, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other where such Contract that is material to the Development, manufacture business of the Company or sale any of any Compound or Product, in each case, as currently conducted by Seller, its Subsidiaries (other than non-exclusive licenses for unmodified, commercially available “off-the-shelf” software that have been granted on standardized, generally available terms); or (B) the Company or any of its Subsidiaries grants to another Person any license or other right with respect to any material Company Intellectual Property. Each Contract relating to of the type described in clauses (i) real property, – (iixiv) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iiiof this Section 3.21(a) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceis referred to herein as a “Company Material Contract.”
(iib) All True, correct and complete copies of each Company Material Contract have been publicly filed with the SEC prior to the date of this Agreement or otherwise made available to Parent. Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contracts are Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, as of the date of this Agreement, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date of this Agreement, each Company Material Contract is a valid and binding agreements obligation of Sellerthe Company or the Subsidiary of the Company that is party thereto and, enforceable to the Knowledge of the Company, of each other party thereto, and is in accordance with their termsfull force and effect, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementExceptions.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Canadian National Railway Co), Merger Agreement (Kansas City Southern)
Material Contracts. (i) Section 5.1(i)(i) Seller has made available to Buyer for inspection true and complete copies of all Material Agreements. Schedule 2.10 of the Disclosure Schedules Letter sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller of the following contracts to a Third Party that which any Transferred Company or its Assets are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect bound as of the date of this Agreement (excluding insurance policies, it being understood and agreed that from and after the Closing, the Transferred Companies shall cease to which Seller is a party or which was entered into by or on behalf of Sellerbe insured under such policies) (collectively, or by which any of the Acquired Assets is bound in the following categories (the “Material ContractsAgreements”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(Da) any Contract pursuant to which Seller Indebtedness of the Transferred Company has obtained been incurred, other than Seller’s group wide debt facilities under which the Transferred Companies will have no obligations following the Closing;
(b) any obligation to make payments, contingent or granted otherwise, arising out of the prior acquisition of the Assets or businesses of other Persons (other than accounts payable constituting current liabilities);
(c) any Intellectual Property Rights included Contract containing (x) non-competition covenants or (y) other covenants restricting the current or future development, manufacture, marketing or distribution of the products and services of any Transferred Company (other than, in the Acquired Assets case of clause (or that would have been included in the Acquired Assets but for such Contracty), including any covenant not to enforce or assertconfidentiality, including any existing license agreement relating to any Compound or Product or the Product Operations employment, management, consulting and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following similar agreements entered into in the Ordinary Course of Business andand those contained in license, distribution, toll manufacturing and similar agreements, in each case, that case which are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesmaterial);
(Ed) any lease, sublease or similar Contract with any Person (other than a Transferred Company) under which any Transferred Company is a lessor or sublessor of, or otherwise grants any interest to any Person (other than a Transferred Company) in any Owned Property or any Leased Property;
(e) lease, sublease or similar Contract with any Person (other than a Transferred Company) under which (A) any Transferred Company is lessee or sublessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person or (B) any Transferred Company is a lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by any Transferred Company, in any such case which has an aggregate future liability or receivable, as the case may be, in excess of U.S. $50,000;
(f) (A) continuing Contract for the future purchase of materials, supplies or equipment, or (B) management, service, consulting or other similar Contract in any such case which has an aggregate future liability to any Person (other than a Transferred Company) in excess of U.S. $50,000 and which is not terminable by the relevant Transferred Company on 180 days (or less) notice;
(g) Contract under which Seller pays any Transferred Company has made any advance, loan, extension of credit or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding capital contribution to, or other dispute relating to the Acquired Assets or the Product Operationsinvestment in, including the conduct of any clinical trials;
Person (H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any a Transferred Company and other than extensions of the following entered into trade credit in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorsBusiness);
(Jh) Contract granting a Lien upon any Intellectual Property or any other material Asset of any Transferred Company (other than a Permitted Lien);
(i) Contract entered into outside the Ordinary Course of Business providing for indemnification of any Person with respect to material Liabilities relating to any current or former business of any Transferred Company or any predecessor Person;
(j) Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, sale of any material Asset of any Transferred Company (other than inventory sales in the Ordinary Course of Business) or storage the grant of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreementspreferential rights to purchase any such material Asset;
(Kk) any Contract for hedging agreement (such as a currency exchange, interest rate exchange, commodity exchange or similar Contract) that will be binding on a Transferred Company after the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or ProductClosing;
(Ll) any Contract for the distributionany joint venture, promotion, marketing, reselling partnership or other Commercialization of any Compound or Productsimilar arrangement;
(Mm) Contract pursuant to which a Transferred Company is the licensee or licensor of material Intellectual Property or otherwise granted any Contract for the maintenance of the safety database for right, title or interest in, to or under any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsmaterial Intellectual Property; and
(On) Contract providing for the services of any other dealer, distributor, sales representative, franchisee or similar representative involving the payment or receipt over the life of such Contract that is material following the Closing in excess of U.S. $50,000 by any Transferred Company. Neither any Transferred Company nor, to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements Knowledge of Seller, enforceable in accordance with their terms, subject any other party to the Enforceability Exception. Other than any Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller Agreement is not in material breach or material default of or under any of the such Material Contracts or Nondisclosure AgreementsAgreement, and to the Seller’s Knowledge no event has occurred that with notice or the lapse of timetime or the giving of notice, or both, would constitute a material breach or default of any other party thereto. Each Material Agreement is in all material respects a valid and binding obligation of each of the parties thereto and are enforceable against such parties in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or similar Laws affecting creditors’ rights generally. The execution, delivery and performance by Seller under of this Agreement and the Ancillary Agreements to be executed and delivered by Seller or any Material Contract. To of its Affiliates, and the Knowledge consummation of Sellerthe transactions contemplated hereby and thereby by Seller and its Affiliates, no other party do not and will not, in any material respect, conflict with, result in the modification or cancellation of, render unenforceable, or give rise to a Material Contract is any right of termination in material breach or material default respect of such Material Contract and no event has occurred that (with due notice or lapse of time, time or both, would constitute a material default by such other party under ) any Material Contract or Nondisclosure Agreement. No As of the date of this Agreement, no party to any of the Material Agreements has repudiated in writing orexercised any termination rights with respect thereto, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or and to the Knowledge of Seller other, no party has given notice regarding of any material violation or breach of, or default under, dispute with respect to any Material Contract or Nondisclosure Agreement.
(iii) As Agreements. Seller has made available to Buyer true, correct and complete copies of all of the date hereofMaterial Agreements, together with all amendments, modifications or supplements thereto. The Transferred Companies are not party to any Contract (other than this Agreement, Benefit Plans, Contracts relating to employment or termination of employment and Contracts that will not remain in effect following the Closing) with (A) the Liabilities any Rockwood Seller or any Affiliate of any Rockwood Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and other than a Transferred Company) or (B) any current or former officer, employee or director of any Transferred Company, any Rockwood Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000or any Affiliate of any Rockwood Seller.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Om Group Inc), Stock Purchase Agreement (Rockwood Specialties Group Inc)
Material Contracts. (a) Except for agreements, contracts, plans, leases, arrangements or commitments set forth in Section 3.11 of the Seller Disclosure Schedule, with respect to the Business, neither Seller nor any predecessor is a party to or subject to:
(i) Section 5.1(i)(i) Any lease providing for annual rentals of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party $1,000 or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):more;
(Aii) any Contract establishing a Any contract for the purchase of materials, supplies, goods, services, equipment or other assets providing for annual payments of $1,000 or more;
(iii) Any sales, distribution or other similar agreement providing for the sale of materials, supplies, goods, services, equipment or other assets that provides for annual payments of $1,000 or more;
(iv) Any partnership, joint venture or collaboration, co-promotion other similar contract or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(Bv) Any contract relating to indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any Contract containing covenants prohibiting asset), except contracts relating to indebtedness incurred in the ordinary course of business in an amount not exceeding $1,000;
(vi) Any license agreement, franchise agreement or limiting agreement in respect of similar rights granted to or held by Seller or any predecessor;
(vii) Any agency, dealer, reseller, sales representative or similar agreement;
(viii) Any agreement, contract or commitment that substantially limits the right freedom of Seller or any predecessor to compete or engage in any aspect line of the Product Operations business or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaarea or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Purchased Asset or which would so limit the freedom of Buyer after the Closing Date;
(Cix) any Contract granting most favored nation Any agreement, contract or exclusive rights relating commitment which is or relates to any Compound an agreement with or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in for the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee benefit of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf affiliate of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;or
(Ex) any Contract under which Seller pays Any other contract or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into commitment not made in the Ordinary Course ordinary course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract business that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceBusiness.
(iib) All Seller has provided or otherwise made available to Buyer complete and accurate copies of all standard form agreements used by the Seller or any predecessor that relate to the Purchased Assets, including all customer agreements, development agreements, distributor or reseller agreements, employee agreements containing intellectual property assignments or licenses or confidentiality provisions, consulting or independent contractor agreements containing intellectual property assignments or licenses or confidentiality provisions, and confidentiality or nondisclosure agreements. Schedule 3.11 of the Material Seller Disclosure Schedule sets forth a complete and accurate list of all Contracts are entered into by the Seller or any predecessor that include deviations from such standard form agreements.
(c) Each agreement, contract, plan, lease, arrangement and commitment required to be disclosed on Section 3.11 of the Seller Disclosure Schedule is a valid and binding agreements agreement of Seller and is in full force and effect, and neither Seller nor any other party thereto is in default in any material respect under the terms of any such agreement, contract, plan, lease, arrangement or commitment, nor to the knowledge of Seller, enforceable in accordance with their termshas any event or circumstance occurred that, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, time or both, would constitute a material any event of default thereunder. Except as set forth on Section 3.11 of the Seller Disclosure Schedule, Seller and its predecessors have performed all obligations required to be performed by it under each Contract prior to the Closing.
(d) Except as set forth on Section 3.11 of the Seller under Disclosure Schedule, (i) the consummation of the transactions contemplated hereby will not afford any Material Contract. To the Knowledge of Seller, no other party the right to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of timeterminate, modify, or both, would constitute a material default by such other party under exercise any Material Contract right to increased or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default accelerated performance under, any Material Contract or Nondisclosure Agreement.
and (iiiii) As none of the date hereof, Contracts (A) contains a provision preventing, prohibiting or requiring any consent or notice in connection with the Liabilities transfer or assignment of Seller relating such Contract to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and Buyer or (B) Seller has contains a credit available under “change of control” or similar provision triggered by the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) consummation of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereoftransactions contemplated hereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Commercetel Corp), Asset Purchase Agreement (Commercetel Corp)
Material Contracts. (ia) Section 5.1(i)(i2.11(a) of the Company Disclosure Schedules sets forth Letter identifies each of the Contracts to which the Company or its Subsidiaries is a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect party as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of SellerDate and, or by which any of the Acquired Assets is bound in that meets the following categories criteria (the each, a “Company Material ContractsContract”):
(Ai) any Contract establishing a joint venture that would reasonably be expected to require payments by or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets Company or its Subsidiaries in excess of $1,000,000 annually after the Development, manufacture, date hereof (other than offer letters or Commercialization service agreements related to the Company’s service providers that are terminable “at will” or for convenience without the payment of any Compound severance or Product, including the conduct of any clinical trialsnotice pay or other material obligations);
(Bii) any Contract containing covenants prohibiting Lease that provides for the ownership of, leasing of, title to, use of, or limiting the right to compete any leasehold or engage other interest in any aspect real or personal property that involves aggregate payments in excess of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or $250,000 in any geographical areacalendar year;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(Diii) any Contract pursuant to which Seller (a) the Company or its Subsidiaries has obtained or granted any licensed from a third-party Intellectual Property Rights included in that is incorporated into the Acquired Assets (Company Products or that would have been included in is otherwise material to the Acquired Assets but for such Contract)Company and its Subsidiaries, including any covenant not taken as a whole, other than non-exclusive licenses to enforce generally commercially available software or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andthat have an ongoing cost of $500,000 or less per annum, in each caseor (b) the Company or any of its Subsidiaries grants to any Person a license, that are covenant not Acquired Business Contracts to sue, or any other right with respect to Company IP and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing which is material to the Company and its Subsidiaries, taken as a whole, other than non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: to (ix) standalone indemnity arrangements with clinical trial sites customers incidental to the use of Company Products or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (vy) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, providers solely for the provision of services to the Company and non-physician advisory board participants (i.e. nurse advisors)its Subsidiaries;
(Jiv) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testingacquisition or disposition of any Person or any business unit or assets thereof in the last five years, or storage of under which the active pharmaceutical ingredients and Company or Subsidiary has any continuing obligation with respect to an “earn-out”, contingent purchase price or other raw materials for any Compound contingent or Product, and related quality agreementsdeferred payment;
(Kv) any Contract for the ongoing settlement or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials conciliation of any Compound Proceeding or Productother dispute with a third party (i) the performance of which would involve any payments after the Agreement Date or (ii) that imposes any material, non-monetary obligations on the Company or any of its Subsidiaries (or the Surviving Corporation after the Closing);
(Lvi) any Contract for the distributionthat (A) contains any non-competition, promotion, marketing, reselling exclusivity or other Commercialization agreement that materially limits the ability of the Company or any its affiliates (or Parent or any of its Subsidiaries after the Closing) to compete in any line of business, in any geographic area or with any person, other than non-solicitation provisions, (B) requires or, upon the occurrence of any Compound event or Productcondition enumerated in the Contract would require, the disposition of any material assets or line of business of the Company or its affiliates or, after the Closing, Parent or its affiliates or (C) grants “most favored nation” status with respect to any material obligations that, after the Closing, would apply to Parent or any of its affiliates, including the Company and its Subsidiaries, and would run in favor of any Person (other than the Company and its Subsidiaries, or Parent and its Affiliates);
(Mvii) any Contract for the maintenance that contains (A) a right of the safety database for any Compound first refusal, right of first negotiation, right of first offer or Productsimilar rights, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound (B) put, calls or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Productsimilar rights, in each case, in favor of a party other than the Company or its Subsidiaries;
(viii) any Contract that creates any legal partnership, joint venture or similar entity or other similar agreement or arrangement with respect to any material business of the Company and its Subsidiaries (taken as currently conducted by Sellera whole), other than Contracts solely among the Company and/or its Subsidiaries;
(ix) any Contract that is an indenture, credit agreement, loan agreement, security agreement, participation agreement, repurchase agreement, guarantee, note, mortgage, repurchase or other agreement providing for, or guaranteeing, indebtedness of the Company or any of its Subsidiaries, other than Contracts solely among the Company and/or its Subsidiaries;
(x) any Contract that is an interest rate, equity or other swap or derivative instrument;
(xi) any Contract that obligates the Company to file a registration statement under the Securities Act which filing has not yet been made;
(xii) any Contract that limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(xiii) any Contract providing for indemnification of any officer or director of (A) the Company or (B) any of the Company’s Subsidiaries;
(xiv) any confidentiality agreement or standstill agreement the Company has entered into with any third party (or any agent thereof) containing any exclusivity or standstill provisions that are or will be binding on the Company, any of its affiliates or, after the Closing, Parent or any of its affiliates; or
(xv) any Contract that would be required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K of the SEC.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, and subject, as to enforceability, to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally, and general equitable principles, (i) real propertyeach Company Material Contract is valid and binding on the Company or the applicable Subsidiary of the Company, as applicable, and is in full force and effect, except to the extent it has previously expired in accordance with its terms, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, the Company and each of its Subsidiaries have performed all obligations required to be performed by it to date under each such Company Material Contract and (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred or condition exists that with constitutes or, after notice or lapse of time, time or both, would constitute will constitute, a material breach or a default by Seller on the part of the Company or any of its Subsidiaries under any such Company Material Contract or give any other party to any such Company Material Contract the right to terminate or cancel such Company Material Contract. To the Knowledge A copy of Seller, no other party to a each Company Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, previously been made available to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementParent.
(iiic) As of the date hereofAgreement Date, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) knowledge of the Disclosure Schedules sets forth an accurate and complete list Company, there has not been, nor has the Company or any of all outstanding accrued trade payables under the Acquired Business Contracts as its Subsidiaries received notice of, any violation of any Company Material Contract by any of the date hereofother parties thereto that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Rocket Companies, Inc.), Merger Agreement (Redfin Corp)
Material Contracts. (ia) Section 5.1(i)(i4.14(a) of the Disclosure Schedules Schedule sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as all of the date of this Agreement following Contracts to which Seller any Company Entity is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is them or their respective assets of properties are bound in the following categories (collectively, the “Material Contracts”):
(i) 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 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 establishing a joint venture Manufacturing Agreements or collaborationother Contracts that relate to the research, development, distribution, marketing, supply, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization manufacturing of any Compound or Company Product, including the conduct of any clinical trials;
(Bvii) Contracts pursuant to which goods or materials are supplied to any Contract Company Entity from an exclusive source (i.e., “single source” supply Contracts);
(viii) Contracts containing covenants prohibiting or limiting the right of any Company Entity not to compete or engage in any aspect line of the Product Operations business or prohibiting or restricting Seller’s ability to conduct the Product Operations 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 Company Entity in any line of business or in any geographical areaarea or not to solicit or hire any person with respect to employment;
(Cix) any Contract granting most favored nation or exclusive rights Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by any Compound Company Entity of any operating business or Product 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 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;
(Dxiv) Contracts providing for severance, retention, change in control or other similar payments, which require payments exceeding $100,000;
(xv) Contracts for the employment of any Contract individual on a full-time, part-time or consulting or other basis providing for annual compensation in excess of $100,000;
(xvi) 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 of guaranty, surety or indemnification, direct or indirect, by any Company Entity;
(xviii) Contracts (or group of related Contracts) which involve the expenditure of more than $250,000 annually or $1,000,000 in 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; or (B) pursuant to which Seller any Company Entity has obtained granted to, or granted licensed from, any Person any rights (or immunities) with respect to any Intellectual Property Rights included in the Acquired Assets Property, Software or other Technology (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into nonexclusive licenses granted to customers on standard terms in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorsBusiness);
(Jxx) Contracts pursuant to which any Contract for Company Entity has continuing obligations or interests involving royalties (or other amounts calculated based upon the developmentrevenues or income of any Company Entity), manufacture, supply, packaging, labeling, distribution, analytical testing, license fees or storage similar payments (but exclusive of any Material Contracts listed in Section 4.14(a)(xix) of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreementsDisclosure Schedule);
(Kxxi) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or ProductReal Property Leases;
(Lxxii) any Contract for the distribution, promotion, marketing, reselling or other Commercialization Contracts concerning leases of any Compound or Productpersonal property requiring rental payments exceeding $100,000;
(Mxxiii) Contracts with any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or ProductGovernmental Body involving annual payments exceeding $100,000;
(Nxxiv) any Contract Contracts with any Governmental Authority relating to any Compound or Product or any of the Acquired Assetslargest 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 clinical trial agreements and related ancillary agreements Contracts entered into with public institutionsformer employees of the Company in connection with termination of employment involving a settlement amount of $50,000 or less;
(xxvi) Contracts containing any most-favored nations undertakings, rights of first refusal, price protection mechanisms with respect to sales to customers of any Company Entity, or any other similar provisions restricting the business of the Company Entities;
(xxvii) Contracts with any labor union or any collective bargaining agreement;
(xxviii) Contracts involving any outstanding powers of attorney executed on behalf of any Company Entity; and
(Oxxix) any other Contract Contracts that is are otherwise material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceCompany Entities.
(iib) All Except as disclosed in Section 4.14(b) of the Disclosure Schedule, each of the Material Contracts are is in full force and effect and is the legal, valid and binding agreements obligation of Sellerthe Company Entity which is party thereto, and to the Knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with their termsits terms (except as enforceability may be limited by bankruptcy Laws, subject 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)). No Company Entity is in default under any Material Contract, nor, to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any Knowledge of the Company, is any other party to any Material Contracts Contract in breach of or Nondisclosure Agreementsdefault thereunder. To the Knowledge of the Company, and there is no event has occurred that or existing condition that, with notice or the lapse of time, giving of notice or both, would constitute a material breach of or default by Seller under any Material Contract. To the Knowledge of Seller, no other No party to a any of the Material Contract is Contracts has exercised in material breach or material default of such Material Contract writing any termination rights with respect thereto, and no event party has occurred that given written notice of any significant dispute with notice or lapse of time, or both, would constitute a material default by such other party under respect to any Material Contract or Nondisclosure AgreementContract. No party The Company has repudiated in writing ordelivered to Purchaser true, to the Knowledge correct and complete copies of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As all of the date hereofMaterial Contracts, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000together with all amendments, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000modifications or supplements thereto.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement (Cerecor Inc.)
Material Contracts. (ia) Section 5.1(i)(i3.14(a) of the Company Disclosure Schedules Letter sets forth forth, as of the date of this Agreement, a true true, correct and accurate complete list of each Contract to which the Company or any of its Subsidiaries is a party or which binds or affects their respective properties or assets, and which falls within any of the following categories:
(i) a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act);
(ii) a Contract pursuant to which the Company or any of its Subsidiaries (A) has purchased or sold during the twelve (12) months prior to the date of this Agreement goods or services that involved payments by or to the Company and its Subsidiaries in excess of $500,000 during such period, in each case other than purchase orders issued by Seller entered into in the Ordinary Course, or (B) would reasonably be expected to (x) make or receive annual payments of more than $500,000 or (y) make or receive aggregate payments of more than $1,000,000;
(iii) a Third Party Contract that are ancillary is a license, royalty, covenant not to another written ▇▇▇ or similar Contract with respect to Intellectual Property (other than licenses for shrinkwrap, clickwrap, or other similar commercially available off-the-shelf software that has not been modified or customized by a third party for the same Third Party Company or any of its Subsidiaries);
(iv) a joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company in which the Company owns, directly or indirectly, any voting or economic interest of 10% or more, or any interest valued at more than $500,000, without regard to percentage voting or economic interest, other than any such Contract solely between the Company and that do not constitute its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries;
(v) a mortgage, indenture, guarantee, loan, or credit agreement, security agreement, or other Contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case with an Assumed Liability) in effect outstanding principal balance as of the date of this Agreement in excess of $500,000, other than (A) accounts receivable and accounts payable in the Ordinary Course and (B) intercompany loans owed by the Company or any direct or indirect wholly-owned Subsidiary of the Company to any other direct or indirect wholly-owned Subsidiary of the Company, or by any direct or indirect wholly-owned Subsidiary to the Company;
(vi) a Contract that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of inventory in the Ordinary Course) or business or shares or capital stock or other equity interests of any Person (in each case, whether by merger, sale shares or of stock, sale of assets or otherwise), pursuant to which Seller the Company or any of its Subsidiaries has any liability, including any potential indemnity or earn-out or other deferred or contingent payment obligations that remain outstanding;
(vii) a Contract containing a covenant that materially limits the right of the Company or any of its Subsidiaries (or after the Effective Time, Parent or its Affiliates) to engage or compete in any line of business, solicit or hire any Person, or purchase, sell, supply or distribute any product or service, or that otherwise has the effect of restricting the Company or any of its Subsidiaries (or after the Effective Time, Parent or its Affiliates) from the development, manufacture, marketing or distribution of products or services in any geographic area;
(viii) a Contract that grants any exclusivity rights or “most favored nation” status (including any that, after the Effective Time, would bind Parent or its Affiliates);
(ix) a Contract with the Top Customers or Top Suppliers;
(x) a Contract that grants any right of first refusal or right of first offer or that limits the ability of the Company or its Subsidiaries (or after the Effective Time, Parent or its Affiliates) to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business;
(xi) a Contract containing a standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of the other party or its Affiliates;
(xii) a Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries would reasonably likely be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $250,000;
(xiii) a Contract between the Company or any of its Subsidiaries and any director or officer of the Company, any Person holding more than 5% of the capital stock of the Company, or their immediately family members; or
(xiv) a Contract to which the Company or any of its Subsidiaries is a party or which was entered into by or on behalf of Sellerparty, or by which any of them are bound, the Acquired Assets ultimate contracting party of which is bound in the following categories a Governmental Entity (the “Material Contracts”):
(A) including any subcontract with a prime contractor or other subcontractor who is a party to any such contract). Each Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations type described in this Section 3.14(a) whether or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or not set forth in any geographical area;
(CSection 3.14(a) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following Company Disclosure Letter and whether or not entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses on or prior to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses , is referred to commercially available software or cloud or software herein as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;“Company Material Contract.”
(Eb) any A true, complete and correct copy of each Company Material Contract under which Seller pays or receives milestone or royalty payments relating has been made available to any Compound or Product or any Product IP;
(F) any Contract relating Parent prior to the creation of Liens on any Acquired Assets or date hereof. Each Company Material Contract is valid, binding and in full force and effect with respect to the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or Company and any of its Affiliates in settlement of any Legal Proceeding or other dispute relating Subsidiaries to the Acquired Assets or extent a party thereto and, to the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any Knowledge of the following entered into in the Ordinary Course of Business andCompany, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contractparty thereto. To the Knowledge of Sellerthe Company, no other party Person is seeking to terminate or challenging the validity or enforceability of any Company Material Contract, except such terminations or challenges which have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Contract is in material breach or material default Adverse Effect. Neither the Company nor any of such Material Contract and no event has occurred that with notice or lapse of timeits Subsidiaries, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, nor to the Knowledge of Sellerthe Company, otherwise provided notice any of its intention to repudiate the other parties thereto has violated any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or committed or failed to perform any act which (with or without notice, lapse of time or both) would constitute a default under any provision of, and neither the Company nor any of its Subsidiaries has received written notice that it has violated or defaulted under, any Company Material Contract Contract, except for those violations and defaults (or Nondisclosure Agreement.
(iiipotential defaults) As of which have not had and would not reasonably be expected to have, individually or in the date hereofaggregate, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.Company Material Adverse Effect,
Appears in 2 contracts
Sources: Merger Agreement (Yatra Online, Inc.), Merger Agreement (Ebix Inc)
Material Contracts. (i) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of Schedule 2.5 lists each Contract to which Seller (other than purchase orders issued with respect to the Business) or Company is a party or to which Seller or Company or any of their properties is subject or by which Seller or Company is bound that (a) is a Customer Contract that provides for payments to or performance by Seller or Company in excess of $250,000 in the aggregate, (b) is a Supplier Contract that provides for payments by Seller or Company in excess of $250,000 in the aggregate, (c) is a Government Contract, (d) after June 27, 1997 obligates Seller or Company to a Third Party that are ancillary to another written Contract with pay an amount of $250,000 or more in the same Third Party and that do not constitute aggregate, (e) has an Assumed Liability) in effect unexpired term as of the date hereof in excess of three years, (f) represents a Contract upon which the Business is substantially dependent or the absence of which would have a material adverse effect on the Business, (g) provides for an extension of credit other than consistent with normal credit terms, (h) limits or restricts the ability of Seller (with respect to the Business) or Company to compete or otherwise to conduct its business in any manner or place, (i) provides for a guaranty or indemnity by Seller (with respect to the Business) or Company, (j) grants a power of attorney, agency or similar authority to another person or entity, (k) contains a right of first refusal, (l) contains a right or obligation of any Affiliate, officer or director or any Associate, of Seller or Company to Seller or Company, (m) requires Seller or Company to buy or sell goods or services with respect to which there will be material losses or will be costs and expenses materially in excess of expected receipts (other than as provided for or otherwise reserved against on the most recent of the balance sheets referred to in Section 2.3), (n) is an offshore production contract or (o) was not made in the ordinary course of business (each of which, together with each Contracts relating to any of the Intangible Property listed on Schedule 2.7, being a "Material Contract"). True copies of each Material Contract, including all amendments and supplements thereto, have been made available to Buyer. Each Material Contract is valid and subsisting; Seller or Company, as applicable, has duly performed in all material respects all of its obligations thereunder to the extent that such obligations to perform have accrued; and no material breach or default, alleged material breach or default, or event which would (with the passage of time, notice or both) constitute a material breach or default thereunder by Seller or Company or, to the best knowledge of Seller and Company, any other party or obligor with respect thereto, has occurred or as a result of this Agreement to which Seller is or performance thereof will occur. The consummation of the transactions contemplated by this Agreement will not (and will not give any person a party right to) terminate or which was entered into by or on behalf of Sellermodify any rights of, or by which accelerate or augment any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaborationobligation of, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller Company under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Watkins Johnson Co), Stock Purchase Agreement (General Inspection Laboratories Inc)
Material Contracts. (a) Section 3.17 of Seller's Disclosure Schedule sets forth all of the following contracts related to the Business (the "Material Contracts"):
(1) Collective bargaining agreements or other contracts with any labor union, or any contract, whether written or oral (excluding any oral or written contract that is terminable-at-will under the laws of the relevant jurisdiction without severance obligations), for the employment of any Transferred Employee (as defined herein), or any agreement relating to loans to a Transferred Employee, or any retention, severance, change of control or similar arrangement with a Transferred Employee which would result in a payment becoming due as a result of the Closing;
(2) Agreements or indentures relating to the borrowing of money, equipment leases or financing, or to the mortgaging, pledging or otherwise placing a lien on any Purchased Asset;
(3) Contracts or agreements (i) Section 5.1(i)(iprohibiting it from freely engaging or competing in any business anywhere in the world, or (ii) of the Disclosure Schedules sets forth a true and accurate list of each Contract entered into restricting Seller's right to use or disclose any information in its possession;
(4) Partnership, joint venture, or other than similar contract arrangements;
(5) Sales, distributorship, material purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller other similar contract arrangements relating to the Acquired Assets or the Development, manufacture, or Commercialization sale of any Compound or Product, including the conduct a material quantity of any clinical trialsProducts;
(B6) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect The Seller's Contracts with its Third Party Payors that represent more than $100,000 of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
revenues on an annualized basis (C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorsexcluding government agencies);
(J7) Any contract relating to the acquisition or disposition of any Contract for the developmentbusiness of Seller (whether by merger, manufacturesale of stock, supply, packaging, labeling, distribution, analytical testing, sale of assets or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreementsotherwise);
(K) any Contract for 8) Contracts related to the ongoing licensing of Intellectual Property or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or ProductProprietary Rights, including those listed on Schedule 2.1(d);
(L9) Any contracts with a Third Party Payor or any Contract for the distributionother third party that has terms which require Seller to be in any kind of exclusive relationship with, promotionor exclusively deal with, marketing, reselling such Third Party Payor or other Commercialization of any Compound or Product;third party; or
(M10) any Contract for Any other contract which creates future payment obligations in excess of $50,000 in the maintenance aggregate and which by its terms does not terminate or is not terminable without penalty by Seller upon notice of the safety database for any Compound thirty (30) days or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceless.
(iib) Seller has furnished to Buyer true and complete copies of each of the Material Contracts.
(c) All of the Material Contracts are legal, valid and binding agreements obligations and in full force and effect. Seller has duly performed all of Seller, enforceable in accordance with their terms, subject its obligations under each Material Contract to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, extent those obligations have accrued and no event has occurred that with notice or lapse of timedefault, violation, or both, would constitute a material default breach by Seller under or, to Seller's Knowledge, any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to occurred which affects the Knowledge enforceability of Seller, otherwise provided notice of its intention to repudiate any provision of a such Material Contract or Nondisclosure Agreement. Seller has not given to any parties' rights thereunder, including without limitation rights of termination, modification and acceleration, except where any of the foregoing would not, individually or received from any other Person any writtenin the aggregate, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreementbe Material.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (Bd) Seller has a credit available under the IQVIA Agreement is in an amount equal to $2,480,000compliance with all confidentiality and privacy provisions of each Material Contract.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Dj Orthopedics Inc), Asset Purchase Agreement (Orthologic Corp)
Material Contracts. (a) Except as disclosed in Schedule 6.15, or otherwise reflected in the SPAH Financial Statements, none of SPAH, nor any of its respective Assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, (i) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Sellerany employment, severance, termination, consulting, or by which retirement Contract providing for aggregate payments to any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect calendar year in excess of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract)$200,000, including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation borrowing of Liens on any Acquired Assets money by SPAH or the guarantee of the payment of Liabilities or performance of obligations by SPAH of any such obligation (other Person by Seller than trade payables and Contracts relating to any Compound borrowings or Product or any Acquired Assets;
guarantees made in the ordinary course of SPAH’s business), (Giii) any Contract entered into by Seller which prohibits or restricts SPAH or any personnel of its Affiliates SPAH from engaging in settlement any business activities in any geographic area, line of business or otherwise in competition with any Legal Proceeding or other dispute relating to the Acquired Assets or the Product OperationsPerson, including the conduct of any clinical trials;
(Hiv) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
involving Intellectual Property (I) any Contract for the research or Development of any Compound or Product, other than any of the following Contracts entered into in the Ordinary Course ordinary course with customers or “shrink-wrap” software licenses), (v) any Contract relating to the provision of Business anddata processing, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: network communication, or other technical services to or by SPAH, (ivi) standalone indemnity arrangements with clinical trial sites any Contract relating to the purchase or clinical trial investigators; (ii) powers sale of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. any goods or services (other than local representative agreements and legal representative agreements or similar arrangements for local representation Contracts entered into with in the ordinary course of business and involving payments under any individual Contract or series of contracts not in excess of $200,000), (vii) any exchange-traded or over-the-counter swap, forward, future, option, cap, floor, or collar financial Contract, or any other interest rate or foreign currency protection Contract or any Contract that is a contract research organization or similar service provider); combination thereof not included on its balance sheet, (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(Jviii) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound the purchase, sale or Product lease of real property by or any of the Acquired Assets, other than clinical trial agreements from SPAH and related ancillary agreements with public institutions; and
(Oix) any other Contract or amendment thereto that is material would be required to be filed as an exhibit to a SPAH Exchange Act Report filed by SPAH with the SEC prior to the Development, manufacture or sale date of any Compound or Product, this Agreement that has not been filed as an exhibit to a SPAH Exchange Act Report (Contracts referred to in each case, as currently conducted by Seller, other than any Contract relating to clauses (i) real propertythrough (ix) of this Section 6.15(a), (ii) employeestogether the “SPAH Contracts”). A true, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach SPAH Contract has been filed as an exhibit to an Exchange Act Document, furnished or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party made available to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts FFC as of the date hereof.
(b) With respect to each SPAH Contract and except as disclosed in Schedule 6.15(b): (i) the Contract is in full force and effect; (ii) SPAH is not in Default thereunder; (iii) SPAH has not repudiated or waived any material provision of any such Contract; (iv) no other party to any such Contract is, to SPAH’s Knowledge, in Default in any respect or has repudiated or waived each material provision thereunder; and (v) no consent is required by a Contract for the execution, delivery, or performance of this Agreement, the consummation of the Merger or the other transactions contemplated hereby. All of the indebtedness of SPAH for money borrowed is prepayable at any time by SPAH without penalty, premium or charge.
Appears in 2 contracts
Sources: Merger Agreement (Frontier Financial Corp /Wa/), Merger Agreement (SP Acquisition Holdings, Inc.)
Material Contracts. Neither the Company nor any of its Subsidiaries is a party to or bound by any (iwhether written or oral):
(a) Section 5.1(i)(iemployment, severance or non-competition agreements with Company Employees;
(b) operating lease, whether as lessor or lessee, with respect to any real property;
(c) contract, whether as licensor or licensee, for the license of the Disclosure Schedules sets forth a true and accurate list of each Contract any patent, know-how, trademark, trade name, service ▇▇▇▇, copyright, or other intangible asset (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as non-negotiated licenses of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialscommercially available computer software);
(Bd) loan or guaranty agreement, indenture, or other instrument, contract, or agreement under which any Contract containing covenants prohibiting money has been borrowed or limiting the right to compete loaned, which has not yet been repaid, or engage in any aspect note, bond, or other evidence of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaindebtedness has been issued and remains outstanding;
(Ce) mortgage, security agreement, conditional sales contract, capital lease, or similar agreement that effectively creates a lien on any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any assets of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
Subsidiaries (H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business andconditional sales contract, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorneycapital lease, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with agreement that creates a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorslien only on tangible personal property);
(Jf) contract restricting the Company or any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, of its Subsidiaries in any material respect from engaging in business or storage of the active pharmaceutical ingredients and from competing with any other raw materials for any Compound or Product, and related quality agreementsparties;
(Kg) any Contract for the ongoing or planned analytical testing or storage plan of biological specimens collected from subjects participating in clinical trials of any Compound or Productreorganization;
(Lh) partnership or joint venture agreement;
(i) collective bargaining agreement or agreement with any Contract labor union or association representing the Company Employees;
(j) contracts and other agreements for the distributionsale of any of its material assets or properties or for the grant to any person of any preferential rights to purchase any of its assets or properties other than in the ordinary course of business, promotionexcept for contracts or agreements pursuant to which the sale or purchase has been completed and there are no material obligations of the Company remaining;
(k) material warehousing, distributorship, representative, marketing, reselling sales agency or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsadvertising agreements; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Diker Charles M), Merger Agreement (Cantel Medical Corp)
Material Contracts. (ia) Section 5.1(i)(i2.8(a) of the Seller Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect Letter lists, as of the date hereof, the following Contracts primarily related to or otherwise material to the operation of this Agreement the Business to which Seller Sellers or any of their Controlled Affiliates is a party and which have not been entirely fulfilled or which was performed as of the date hereof, except for (v) this Agreement, (w) any Benefit Plan, (x) Divided Commingled Contracts, (y) Contracts related to services to be performed under the Transitional Services Agreement and (z) any purchase orders, invoices or other similar Contracts entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound received in the following categories Ordinary Course of Business (collectively, the “Material Contracts”):
(Ai) any Contract establishing a relating to any incurrence, assumption or guarantee of Indebtedness for borrowed money by any Transferred Subsidiary or, with respect to the Business, Sellers or any of their Controlled Affiliates (as applicable) in excess of $500,000;
(ii) any joint venture agreement or partnership agreement or other similar Contract memorializing any joint venture or collaboration, co-promotion or like arrangement, or involving partnership between the Business and a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller third party;
(iii) any Contract relating to the Acquired Assets acquisition or the Development, manufacture, or Commercialization disposition of any Compound business, capital stock or Product, including the conduct other equity securities or assets of any clinical trialsPerson (whether by merger, consolidation or other business combination, sale of stock or other securities, sale of assets or otherwise) entered into during the past five (5) years or under which the Business has any continuing obligation;
(Biv) any Contract providing for payments by or to the Business estimated or projected by Sellers, in good faith, to be in excess of $1,000,000 per annum, or $5,000,000 over the life of such Contract;
(v) any Contract that contains exclusivity obligations, right of first refusal or right of first offer, most favored nation obligations, “take or pay” obligations, or non-competition obligations or restrictions binding on the Business;
(vi) any Contract containing covenants prohibiting that (A) restrict or limiting purport to restrict the right Business (or any of the owners thereof or their respective Affiliates) from any solicitation, hiring or engagement of any Person or the solicitation of any customer or (B) limit or purport to compete limit the freedom of any the Business (or any of the owners thereof or their respective Affiliates) to engage in any aspect line of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations business, compete with any Person or operate in any geographical areageographic areas or markets;
(Cvii) any Contract granting most favored nation (A) pursuant to which the Business receives from a third party a license or other right to use any material Intellectual Property used in the Business, other than (i) shrink-wrap, click wrap, and off-the-shelf software licenses, and other non-exclusive rights relating licenses of uncustomized software that is commercially available to any Compound the public generally, with aggregate fees of $250,000 or Product less, and (ii) licenses for Intellectual Property used by Sellers or their Controlled Affiliates in connection with the provision of services under the Transitional Services Agreement or (B) pursuant to any which material Transferred Intellectual Property is licensed to a third party other Personthan non-exclusive licenses granted in the Ordinary Course of Business in connection with the sale or licensing of products or services of the Business;
(Dviii) any Labor Agreement covering any Business Employees;
(ix) any Contract pursuant to which Seller has obtained the Business receives the services of independent contractors or granted other non-employee service providers;
(x) any Intellectual Property Rights included in Contract that grants a Lien (other than a Permitted Lien) on any material Transferred Asset or material property or asset of the Acquired Assets Transferred Subsidiaries that is not an Excluded Asset;
(xi) any Contract with a Key Customer or that would have been included in Key Supplier;
(xii) any Government Contract where the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller counterparty is a licensor Governmental Authority and for which (x) the period of performance has not expired or licensee of any Intellectual Property Rights relating to any Compound terminated or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are (y) final payment has not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites yet been received as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeeshereof;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(Fxiii) any Contract relating to the creation of Liens on any Acquired Assets settlement or the guarantee of the payment of Liabilities or performance of obligations conciliation of any other Person Litigation (A) since April 1, 2021 and providing for payment by Seller relating the Business in excess of $500,000 or (B) pursuant to which the Business will have any Compound or Product or any Acquired Assetsoutstanding obligation after the date hereof;
(Gxiv) any Contract entered into by Seller or pursuant to which any of its Affiliates in settlement of any Legal Proceeding third party sales representative or other dispute relating third party representative (a “Third Party”) is appointed to promote and solicit offers for the Acquired Assets purchase of products and services of the Business or the Product Operations, including the conduct of Transferred Subsidiaries in any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies territory outside of the U.S. United States (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with each, a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors“Foreign Sales Representative Agreement”);
(Jxv) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsAffiliate Contract; and
(Oxvi) any other Contract that is material to Lease, any Landlord Lease and any agreement or instrument for the Developmentpurchase, manufacture sale, transfer or sale encumbrance of any Compound real property or Productinterest therein, in each case, as currently conducted by Seller, other than any Contract relating to including the Owned Real Property.
(i) real propertyEach Material Contract is in full force and effect and is a valid and binding agreement of a Transferred Subsidiary, Sellers or their Affiliates, as applicable, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other Laws affecting the enforcement of creditors’ rights generally, (ii) employeesneither a Transferred Subsidiary, Sellers or employee compensation their Affiliates, as applicable, nor, to the Knowledge of Sellers, any other party thereto is in default or benefit mattersbreach in any material respect under (or is alleged in writing to be in default or breach in any material respect under) the terms of has provided or received any written notice of any intention to terminate, including any Employee Benefit Plansuch Material Contract, and (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event or circumstance has occurred that that, with notice or lapse of time, time or both, would constitute an event of default thereunder or result in a termination thereof or would cause or permit the acceleration of or other changes of or to any right or obligation or the loss of any benefit thereunder, except, in each case of clauses (i) – (iii), except as would not, individually or in the aggregate, be (or reasonably be expected to be) material default by Seller under any Material Contractto the Business, taken as a whole. To the Knowledge of SellerSellers, no other neither Sellers nor any of their Controlled Affiliates have received any written notice of the intention of any party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under terminate any Material Contract or Nondisclosure AgreementContract. No party has repudiated in writing or, Prior to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating Sellers have made available to the IQVIA Agreement are $3,800,000Buyer true, which amount is net of all deposits (including the deposit referenced in clause (B)), advances correct and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) complete copies of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Material Contracts as of the date hereof, together with all material modifications and amendments thereto.
Appears in 2 contracts
Sources: Securities and Asset Purchase Agreement (Triumph Group Inc), Securities and Asset Purchase Agreement (Aar Corp)
Material Contracts. (ia) Section 5.1(i)(i) 4.11 of the Buyer Disclosure Schedules Schedule sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andContracts to which, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; , Buyer and its Subsidiaries is a party (each, a “Buyer Material Contract”):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC as determined as of the date of this Agreement, other than those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to Buyer;
(ii) each Contract (A) not to (or otherwise restricting or limiting the ability of Buyer and its Subsidiaries to) compete in any line of business or geographic area or (B) to restrict the ability of Buyer and its Subsidiaries to conduct business in any geographic area;
(iii) each Contract (other than any Buyer Benefit Plan) providing for or resulting in payments by Buyer and its Subsidiaries that exceeded annual payments by Buyer or any of its Subsidiaries that exceed $1,000,000;
(iv) licenses all Contracts granting to commercially available software any Person an option or cloud a first refusal, first offer or software as a service agreements; and similar preferential right to purchase or acquire any material Buyer Assets;
(v) assignment all material Contracts (A) for the granting or receiving of a license, sublicense or franchise (in each case, including any such Contracts relating to any Intellectual Property) providing for or resulting in a payment in excess of $1,000,000 per year or (B) under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment in which it is reasonably expected to pay or receive a royalty, license fee, franchise fee or similar payment in excess of $1,000,000, in each case of clause (A) and (B), other than agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays non-exclusive licenses granted to Buyer’s or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support servicesSubsidiaries’ customers, and non-physician advisory board participants (i.e. nurse advisors)exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms;
(Jvi) any Contract for the developmentall partnership, manufacture, supply, packaging, labeling, distribution, analytical testing, joint venture or storage of the active pharmaceutical ingredients and other raw materials for any Compound similar agreements or Product, and related quality agreementsarrangements;
(Kvii) any Contract for agreement with any director, officer or stockholder of Buyer or any Subsidiary that is required to be described under Item 404 of Regulation S-K of the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating SEC in clinical trials of any Compound or Productthe Buyer SEC Reports;
(Lviii) any Contract agreement relating to indebtedness for borrowed money or the distributiondeferred purchase price of property (in either case, promotionwhether incurred, marketingassumed, reselling guaranteed or other Commercialization of secured by any Compound or Productasset), except any such agreement with an aggregate outstanding principal amount not exceeding $5,000,000;
(Mix) any Contract agreement for the maintenance disposition or acquisition by Buyer and its Subsidiaries, with material obligations of Buyer and its Subsidiaries (other than confidentiality obligations) remaining to be performed or material Liabilities of Buyer and its Subsidiaries continuing after the safety database for date of this Agreement, of any Compound material business or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Productmaterial amount of assets other than in the ordinary course of business;
(Nx) any Contract with any Governmental Authority relating agreement restricting or limiting the payment of dividends or the making of distributions to any Compound stockholders, including intercompany dividends or Product or any of the Acquired Assets, distributions other than clinical trial agreements and related ancillary agreements with public institutionssuch restrictions or limitations that are required by applicable Law; and
(Oxi) all material agreements with any other Governmental Authority.
(b) Each Buyer Material Contract that is a valid and binding agreement of Buyer or its applicable Subsidiary, except where the failure to be valid and binding would not, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect. Except as would not, be material to the DevelopmentBuyer, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, neither Buyer or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orSubsidiary nor, to the Knowledge of SellerBuyer, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenparty, or to the Knowledge is in breach of Seller other, notice regarding any material violation or breach of, or default under, under any such Buyer Material Contract or Nondisclosure Agreement.
(iii) As of the date hereofContract, (Aii) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereofof this Agreement, there are no material disputes with respect to any such Buyer Material Contract and (iii) as of the date of this Agreement, no party under any Buyer Material Contract has given written notice of its intent to terminate or otherwise seek a material amendment to such Buyer Material Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Recruiter.com Group, Inc.), Stock Purchase Agreement (GoLogiq, Inc.)
Material Contracts. (ia) Except as set forth in Section 5.1(i)(i4.5(a) of the Company Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect Schedule, as of the date hereof neither the Company nor any of this Agreement to which Seller is a party or which was its Subsidiaries has entered into or is bound by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories types of Contracts (the each a “Material ContractsContract”):
(Ai) any Contract establishing a joint venture Contracts with any Affiliate of the Company or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsits Subsidiaries;
(Bii) any Contract containing covenants prohibiting Contracts relating to any Indebtedness;
(iii) any Contracts under which the Company or limiting the right any of its Subsidiaries has made or is obligated to compete make, directly or engage indirectly, any capital contribution to, or other investment in, any Person in any aspect of the Product Operations or amount;
(iv) any Contracts prohibiting or restricting Seller’s the ability of the Company or any of its Subsidiaries to conduct the Product Operations with any Person or business in any geographical area;
(C) , to solicit clients or to compete with any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(Dv) any Contract pursuant Contracts that provide for earn-outs or other similar contingent obligations to which Seller has obtained or granted any Intellectual Property Rights included in be paid by the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates Subsidiaries;
(vi) any Contracts for the Company’s or any Subsidiary’s purchase of materials, supplies, products or services, involving annual payments in settlement excess of $100,000 in any Legal Proceeding year;
(vii) any joint venture, strategic alliance, partnership or similar Contract involving a sharing of profits or expenses or payments based on revenues or profits of the Company or any of its Subsidiaries;
(viii) any reinsurance Contracts (each a “Reinsurance Agreement”) and any trust agreements, letters of credit or other dispute Contracts relating to collateral or security provided in connection with any Reinsurance Agreement;
(ix) any investment management, custody or similar Contracts specifically relating to the Acquired Assets or assets of the Product Operations, including the conduct of any clinical trialsCompany and its Subsidiaries;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nx) any Contract with any Governmental Authority Authority;
(xi) any Contract under which (A) the Company or any of its Subsidiaries is granted rights by others in any Intellectual Property (other than (x) commercial off-the-shelf software with an aggregate annual cost of less than $25,000 or (y) agreements with the Company’s or any of its Subsidiary’s employees or contractors entered into in the ordinary course of business) or (B) the Company or any of its Subsidiaries has granted rights to others in Intellectual Property (other than customer agreements entered into in the ordinary course of business);
(xii) any Contracts between or among the Company or any Subsidiary and a third party, including joint and several undertakings and/or guarantees for the benefit of a third party, pursuant to which the Company or any Subsidiary has guaranteed or may otherwise be primarily or secondarily liable in respect to any obligation or liability owed to or for the benefit of a third party;
(xiii) any Contracts between the Company or any Subsidiary, on the one hand, and any Company Shareholder or any Affiliate of any Company Shareholder (other than the Company or any of its Subsidiaries) or any officer or director of the Company or any Subsidiary, on the other hand;
(xiv) indemnification agreements, undertakings and obligations of the type described at Section 6.11(a);
(xv) (i) any Contract with any third party administrator and any Contract pursuant to which the Company or any of its Subsidiaries provides services to a third party and (ii) any Contract with any other service provider that involves annual service fees in excess of $100,000;
(xvi) any Contract (or series of related Contracts) providing for the acquisition or disposition of any material lines of business, business enterprise or material assets of or by the Company or any of its Subsidiaries;
(xvii) Contracts relating to any Compound Proceeding or Product settlement agreement to which the Company or any of the Acquired Assetsits Subsidiaries is a party, other than clinical trial agreements claim related settlements within policy limits entered into in the ordinary course of business;
(xviii) any management, consulting, independent contractor, employment, severance, bonus or similar agreement;
(xix) any Contract (excluding any Reinsurance Agreement) that involves annual payments in excess of $100,000 that is not terminable on notice of ninety (90) or fewer calendar days without penalty or premium;
(xx) any real property lease, sublease or similar Contract;
(xxi) any Contract that contains any “change of control” or similar term or provision that may be triggered, breached or violated by the Company’s entering into this Agreement and related ancillary agreements with public institutionsconsummating the Transactions; and
(Oxxii) any other each Contract entered into prior to the date hereof that is required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act.
(b) Each Material Contract is valid, binding and in full force and effect, and is enforceable against the Company or its Subsidiaries, as the case may be, and, to the DevelopmentKnowledge of the Company, manufacture or sale of any Compound or Producteach other party thereto in accordance with its terms, in each case, except as currently conducted such enforcement may be limited by Seller, other than any Contract relating to (i) real propertythe effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to the rights of creditors generally, or (ii) employeesthe rules governing the availability of specific performance, injunctive relief or employee compensation other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All at law. Each of the Company and its Subsidiaries has duly performed all of its obligations under each such Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject Contract to the Enforceability Exceptionextent that such obligations have accrued. Other than Material Contracts entered into on behalf There are no existing defaults (or circumstances, occurrences, events or acts that, with the giving of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of timetime or both that would reasonably be expected to become defaults) of the Company or its Subsidiaries or any other party thereto, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party The Company has made available to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, Buyer prior to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net hereof complete copies of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000Material Contracts.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Share Acquisition Agreement (First Trinity Financial CORP), Share Acquisition Agreement (First Trinity Financial CORP)
Material Contracts. (a) Except as disclosed in Section 4.18 of the PDN Disclosure Schedule, and except for this Agreement, neither PDN nor any of its Subsidiaries is bound by any contract, arrangement, commitment or understanding:
(i) Section 5.1(i)(i) of the Disclosure Schedules sets forth that constitutes a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party partnership, joint venture, technology sharing or which was entered into by similar agreement between PDN or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) its Subsidiaries and any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsother person;
(Bii) with respect to the service of any Contract containing covenants prohibiting directors, officers, employees, or limiting independent contractors or consultants that are natural persons, involving the right payment of $100,000 or more in any 12 month period, other than those that are terminable by PDN or any of its Subsidiaries on no more than 30 days’ notice without penalty;
(iii) that limits the ability of PDN or any of its Subsidiaries to compete or engage enter into in any aspect line of the Product Operations business, in any geographic area or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andperson, in each case, that are not Acquired Business Contracts which limitation or requirement would reasonably be expected to be material to PDN and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of its Subsidiaries taken as a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; whole;
(iv) licenses with or to commercially available software a labor union, works council or cloud guild (including any collective bargaining agreement or software as a service agreements; and similar agreement);
(v) assignment agreements with employeesrelating to the use or right to use Intellectual Property, including proprietary information any license or royalty agreements, other than an agreement entered into in the ordinary course of business and invention assignment agreements with employeesthat is not material to PDN;
(vi) that provides for indemnification by PDN to any person, other than an agreement entered into in the ordinary course of business and that is not material to PDN;
(vii) between PDN or any of its Subsidiaries and any current or former director or officer of PDN or any of its Subsidiaries, or any affiliate of any such person (other than an PDN Benefit Plan);
(viii) with respect to (A) Indebtedness, (B) any capital lease obligations to any person other than PDN or any of its Subsidiaries, (C) any obligations to any person other than PDN or any of its Subsidiaries in respect of letters of credit and bankers’ acceptances, (D) any indebtedness to any person other than PDN or any of its Subsidiaries under interest rate swap, hedging or similar agreements, (E) any Contract under which Seller pays or receives milestone or royalty payments relating obligations to pay to any Compound or Product person other than PDN or any Product IP;
of its Subsidiaries the deferred purchase price of property or services, (F) indebtedness secured by any Contract relating to the creation of Liens Lien on any Acquired Assets property owned by PDN or any of its Subsidiaries even though the guarantee of obligor has not assumed or otherwise become liable for the payment of Liabilities thereof, or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller guaranty of any such obligations described in clauses (A) through (F) of any person other than PDN or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or ProductSubsidiaries, in each case, having an outstanding amount in excess of $100,000 individually or $250,000 in the aggregate;
(ix) that is material to PDN or that contains any so called “most favored nation” provision or similar provisions requiring PDN to offer to a person any terms or conditions that are at least as currently conducted by Sellerfavorable as those offered to one or more other persons;
(x) pursuant to which any agent, sales representative, distributor or other third party markets or sells any PDN Product;
(xi) pursuant to which PDN or any Subsidiary is a party granting rights of first refusal, rights of first offer or similar rights to acquire any business or assets of the PDN or any Subsidiary;
(xii) relating to the purchase or sale of assets outside the ordinary course of business of PDN;
(xiii) relating to the issuance of any securities of PDN or any Subsidiary;
(xiv) pursuant to which any material asset of PDN or any of its Subsidiaries is leased;
(xv) relates to the purchase of (A) any equipment entered into since December 31, 2013 and (B) any materials, supplies, or inventory since December 31, 2013, other than any Contract relating agreement which, together with any other related agreement, involves the expenditure by the PDN of less than $100,000;
(xvi) that represents a purchase order with any supplier for the purchase of inventory items in an amount in excess of $100,000 of materials;
(xvii) pursuant to which PDN or any Subsidiary is a party and having a remaining term of more than one (i1) real propertyyear after the date hereof or involving a remaining amount payable thereunder (either to or from PDN) as of the date hereof, of at least $100,000;
(iixviii) employeesthat involves the payment of $250,000 or more in any 12-month period after the date hereof; or
(xix) that would prevent, delay or impede the consummation, or employee compensation otherwise reduce the contemplated benefits, of any of the transactions contemplated by this Agreement. PDN has previously made available to PDN or benefit matters, including any Employee Benefit Plan, its representatives complete and accurate copies of each Contract of the type described in this Section 4.18(a) (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancecollectively referred to herein as “PDN Material Contracts”).
(iib) All of the PDN Material Contracts were entered into at arms’ length in the ordinary course of business and are valid and binding agreements of Sellerin full force and effect, enforceable except to the extent they have previously expired in accordance with their terms. Neither PDN nor any of its Subsidiaries has given or received a notice of cancellation or termination under any PDN Material Contract, subject or has, or is alleged to have, and to the Enforceability Exception. Other than Material Contracts entered into on behalf knowledge of SellerPDN, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any none of the Material Contracts other parties thereto have, violated any provision of, or Nondisclosure Agreementscommitted or failed to perform any act, and no event has occurred that or condition exists, which with notice or without notice, lapse of time, time or both, both would constitute a material default by Seller under the provisions of, any PDN Material Contract.
(c) Neither PDN nor any Subsidiary of PDN is in breach of or default under the terms of any PDN Material Contract, except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a PDN Material Adverse Effect. To the Knowledge knowledge of SellerPDN, no other party to a any PDN Material Contract is in material breach of or default under the terms of any PDN Material Contract except for any such breach or material default of such that has not had and would not reasonably be expected to have, individually or in the aggregate, a PDN Material Adverse Effect. Each PDN Material Contract is a valid and no event has occurred that with notice binding obligation of PDN or lapse the Subsidiary of time, or both, would constitute a material default by such other PDN which is party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orthereto and, to the Knowledge knowledge of SellerPDN, otherwise provided notice of its intention each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to repudiate any provision applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of a Material Contract or Nondisclosure Agreement. Seller has not given specific performance and injunctive and other forms of equitable relief may be subject to or received from any other Person any written, or equitable defenses and to the Knowledge discretion of Seller other, notice regarding the court before which any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreementproceeding therefor may be brought.
(iiid) As Neither PDN nor any Subsidiary of PDN is subject to any continuing obligations or restrictions under the date hereofAlliance Agreement between Monster Worldwide Inc. and PDN or the Diversity Recruitment Partnership Agreement, (A) the Liabilities dated as of Seller relating to the IQVIA Agreement are $3,800,000November 6, which amount is net of all deposits 2012, between PDN and LinkedIn Corporation (including the deposit referenced in clause (Bunder any amendment to either such agreement)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Ladurini Daniel), Merger Agreement (Professional Diversity Network, Inc.)
Material Contracts. (ia) Section 5.1(i)(i) 4.15 of the Company Disclosure Schedules sets forth a true true, correct and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect complete list, as of the date of this Agreement Agreement, of the following Contracts (but not including any Lease Agreements, which are addressed by Section 4.23) to which Seller the Company or any of the Company Subsidiaries is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is Company or any of the Company Subsidiaries’ assets or properties are bound in the following categories (collectively, the “Material Contracts”):
(Ai) any Contract establishing not otherwise described in any other subsection of this Section 4.15(a) that would be required to be filed by the Company as a joint venture or collaboration, co“material contract” (as such term is defined in Item 601(b)(10) of Regulation S-promotion or like arrangement, or involving a sharing with another Person K of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsExchange Act);
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(Dii) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than Company and/or any of the following entered into Company Subsidiaries may be entitled to receive or obligated to pay more than $750,000 in any calendar year;
(iii) any Contract that requires the Ordinary Course Company or any of Business andthe Company Subsidiaries to purchase its total requirements of any product or service from any other Person or contains “take or pay” or similar provisions;
(iv) any Contract that contains a “most-favored-nation” clause or similar term that provides preferential treatment with respect to pricing, in each case, other than Contracts that expire or are terminable or cancellable without penalty within one year following the Closing Date or such Contracts that are not Acquired Business immaterial to the conduct of the business of the Company and the Company Subsidiaries, taken as a whole;
(v) any Contract that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to (A) compete in any line of business, with any Person, in any geographic area or during any period of time, including by limiting the ability to sell any particular services or products to any Persons, or (B) solicit any customers or individuals for employment (other than customary employee non-solicitation covenants contained in vendor, partner or supplier contracts entered into in the ordinary course of business);
(vi) any Contract requiring or otherwise relating to any future capital expenditures by the Company or any of the Company Subsidiaries in excess of $500,000 individually or $1,000,000 in the aggregate, in each case, other than Contracts that expire or are terminable or cancellable without penalty within one year following the Closing Date;
(vii) any Contract relating to the creation, incurrence, assumption or guarantee of any Indebtedness in excess of $500,000 individually or $1,000,000 in the aggregate, other than accounts receivable and are deemed Excluded Liabilities: payables incurred or arising in the ordinary course of business;
(iviii) Nondisclosure Agreements; any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any Person or any real property (iiwhether by merger, sale of stock, sale of assets or otherwise);
(ix) services any Contract that provides for the establishment or operation of any joint venture, partnership, joint development, strategic alliance or similar arrangement that is material to the business of the Company and the Company Subsidiaries, taken as a whole;
(x) any Contract to which a (A) Governmental Authority (other than Contracts with a Governmental Authority in its capacity as a customer of the Company or any Company Subsidiary), (B) Major Supplier or (C) Major Customer is a party;
(xi) any Contract involving any resolution or settlement of any actual or threatened Proceeding which will involve payments after the date hereof in excess of $100,000 individually or $250,000 in the aggregate or that provides for any material injunctive or other non-monetary relief;
(xii) any hedging, swap, derivative or similar Contract;
(xiii) any Contract under which (A) the Company or any of the Company Subsidiaries has licensed or otherwise made available any Company Owned IP to a Third Party, including agreements containing releases, immunities from suit, covenants not to ▇▇▇ or non-assertion provisions with respect to Company Owned IP (except for non-exclusive licenses granted to the Company’s or any Company Subsidiary’s customers or vendors in the ordinary course of business or partners in the ordinary course of business in substantially similar form as the licenses granted under the partner Contracts linked to in the “Links to Key Terms of Service and Privacy Statement” document Made Available in the Data Room), and/or (B) Intellectual Property Rights included in that is material to the Acquired Assets business of the Company or the Company Subsidiaries is licensed or otherwise made available (including through agreements containing releases, immunities from suit, covenants not to ▇▇▇ or non-assertion provisions) to the Company or any of the Company Subsidiaries by any Person (except for Shrink Wrap Licenses, Open Source Software licenses and licenses granted to the sole purpose Company or any of a service provider the Company Subsidiaries from consultants or independent contractors performing services for the Company or on behalf any of Sellerthe Company Subsidiaries and which license grants are in substantially similar form as the licenses granted under the consultant and contractor Contracts in the “Standard Forms of Agreement” folder Made Available in the Data Room) (such Contracts under this clause (B), “Company IP Licenses”);
(xiv) any labor, collective bargaining agreement or similar agreements; and
(iiixv) agreements any insurance policies required to be set forth in Section 4.20 of the Company Disclosure Schedules.
(b) The Company has Made Available to Parent, true, correct and complete copies of each Material Contract (including all modifications, amendments, supplements, annexes and schedules thereto and written waivers thereunder). Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is in full force and effect and is a valid and binding agreement enforceable against the Company or any of the Company Subsidiaries party thereto in accordance with clinical investigators its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium and clinical sites for the conduct other similar Applicable Laws affecting creditors’ rights generally and by general principles of a clinical studyequity, which study is complete or substantially complete at the relevant clinical sites and (ii) as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee none of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than Company nor any of the following entered into in Company Subsidiaries party to, nor, to the Ordinary Course of Business andCompany’s Knowledge, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material party to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, or has provided or received any written notice of any intention to terminate or seek renegotiation of, any Material Contract or Nondisclosure AgreementContract.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Material Contracts. (ia) All Contracts required to be filed as exhibits to the Sirona SEC Documents have been so filed in a timely manner. Section 5.1(i)(i3.16(a) of the Sirona Disclosure Schedules Schedule sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect complete list, as of the date hereof, of this Agreement each of the following Contracts to which Seller Sirona or any of its Subsidiaries is a party or which was entered into by or on behalf of Seller, or by which Sirona or any of the Acquired Assets is its Subsidiaries or any of their assets or businesses are bound in the following categories (the “Material Contracts”and any amendments, supplements and modifications thereto):
(Ai) any Contract establishing that is a joint venture “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) any Contract that materially limits the ability of Sirona or any of its affiliates (including, following the consummation of the Transactions, the Surviving Corporation and its affiliates) to compete or provide services in any line of business or with any Person or in any geographic area or market segment or to engage in any type of business (including any license, collaboration, coagency or distribution agreements);
(iii) any Contract required to be disclosed pursuant to Item 404 of Regulation S-promotion K of the Exchange Act;
(iv) any Contract or like series of related Contracts relating to indebtedness for borrowed money (A) in excess of $10 million or (B) that becomes due and payable as a result of the Transactions;
(v) any license, sublicense, option, development or collaboration agreement or other Contract relating to Sirona Material Intellectual Property reasonably expected to result in payments in excess of $10 million in any twelve (12) month period after the Closing Date (excluding license agreements for “shrink-wrap,” “click-wrap” or other commercially available off-the-shelf software that is not the subject of a negotiated agreement, and excluding agreements the primary purpose of which is to purchase tangible goods or procure services unrelated to Intellectual Property and in the ordinary course of business);
(vi) any Contract reasonably expected to result in payments in excess of $10 million in any twelve (12) month period after the Closing Date that provides for any material “most favored nation” provision or equivalent preferential pricing terms or similar obligations to which Sirona or any of its Subsidiaries is subject;
(vii) any Contract with any of Sirona’s top 20 suppliers (including purchasing agreements and group purchasing agreements) (measured by dollar volume of purchases of Sirona during the twelve (12) months ended June 30, 2015);
(viii) any Contract with any of Sirona’s top 20 customers (measured by dollar volume of spending by the customer during the twelve (12) months ended June 30, 2015);
(ix) any purchase, sale or supply contract that contains volume requirements or commitments, exclusive or preferred purchasing arrangements or promotional requirements reasonably expected to result in payments in excess of $10 million in any twelve (12) month period after the Closing Date;
(x) any lease, sublease, occupancy agreement or other Contract with respect to the Sirona Leased Real Property reasonably expected to result in payments in excess of $10 million in any twelve (12) month period after the Closing Date;
(xi) 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 Sirona or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses (in any case in excess of $10 million);
(xii) any acquisition or divestiture agreement (A) entered into since June 30, 2012 with a purchase price in excess of $20 million or (B) that contains “earn-out” provisions or other contingent payment obligations that could reasonably be expected to exceed $10 million (including indemnification obligations) that have not been satisfied in full;
(xiii) any agreement that by its terms limits the payment of dividends or other distributions by Sirona or any of its Subsidiaries;
(xiv) any Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing with another Person of revenues, profits, losses, costs, royalties, milestone payments, or Liabilities liabilities by Sirona or any of Seller relating to the Acquired Assets its Subsidiaries with any other Person involving a potential combined commitment or the Development, manufacture, or Commercialization payment by Sirona and any of any Compound or Product, including the conduct its Subsidiaries in excess of any clinical trials$10 million annually;
(Bxv) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any “single source” supply Contract pursuant to which Seller has obtained goods or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, materials that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses material to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Sirona or any of its Affiliates Subsidiaries are supplied to Sirona or such Subsidiary from an exclusive source reasonably expected to result in settlement payments in excess of $10 million in any Legal Proceeding or other dispute relating to twelve (12) month period after the Acquired Assets or the Product Operations, including the conduct of any clinical trialsClosing Date;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nxvi) any Contract with any Governmental Authority relating Entity reasonably expected to result in payments in excess of $10 million in any Compound or Product or any of twelve (12) month period after the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsClosing Date; andor
(Oxvii) any other Contract that is material agreement which would prohibit or delay beyond the Outside Date the consummation of Merger or any other Transaction contemplated by this Agreement.
(b) Sirona has heretofore made available to DENTSPLY true, correct and complete copies of the DevelopmentContracts set forth in Section 3.16(a).
(c) Except as has not had and would not reasonably be expected to have, manufacture individually or sale of any Compound or Productin the aggregate, in each casea Sirona Material Adverse Effect, as currently conducted by Seller, other than any Contract relating to (i) real property, (iiall Contracts set forth or required to be set forth in Section 3.16(a) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Sirona Disclosure Schedule or filed or required to be filed as exhibits to the Sirona SEC Documents (the “Sirona Material Contracts Contracts”) are valid valid, binding and binding agreements of Seller, in full force and effect and are enforceable by Sirona or its applicable Subsidiary in accordance with their terms, subject except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) Sirona, or its applicable Subsidiary, has performed all obligations required to be performed by it under the Enforceability Exception. Other than Sirona Material Contracts entered into on behalf of SellerContracts, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller it is not in material breach (with or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with without notice or lapse of time, or both) in breach or default thereunder and, would constitute a material default by Seller under any Material Contract. To to the Knowledge of SellerSirona, no other party to a any Sirona Material Contract is in material breach (with or material default of such Material Contract and no event has occurred that with without notice or lapse of time, or both) in breach or default thereunder, would constitute a material default by such other party under (iii) since January 1, 2015, neither Sirona nor any Material Contract or Nondisclosure Agreement. No party of its Subsidiaries has repudiated in writing or, to the Knowledge of Seller, otherwise provided received written notice of its intention to repudiate any provision of a Material Contract actual, alleged, possible or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material potential violation or breach of, or default underfailure to comply with, any term or requirement of any Sirona Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepaymentsContract, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) neither Sirona nor any of its Subsidiaries has received any written notice of the Disclosure Schedules sets forth an accurate and complete list intention of all outstanding accrued trade payables any party to cancel, terminate, change the scope of rights under the Acquired Business Contracts as of the date hereofor fail to renew any Sirona Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Dentsply International Inc /De/), Merger Agreement (Sirona Dental Systems, Inc.)
Material Contracts. (a) Section 3.22(a) of the Company Letter contains a true, complete and correct list of the following Contracts to which the Company or any of its Subsidiaries is a party or by which any property or asset of the Company or any of its Subsidiaries is bound, in each case as of the date of this Agreement, other than Company Plans and Company Real Property Leases listed on Section 3.15(b) of the Company Letter (collectively, the “Material Contracts”):
(i) Section 5.1(i)(ieach Contract (A) the terms of which obligate or may in the future obligate the Company or any of its Subsidiaries to make any severance, termination or similar payment to any current or former legal representative of the Disclosure Schedules sets forth Company or any of its Subsidiaries, (B) pursuant to which the Company or any of its Subsidiaries may be obligated to make any bonus or similar payment to any current or former Company Service Provider in connection with the consummation of the transactions contemplated by this Agreement, or (C) that provides for indemnification of any current or former Company Service Provider;
(ii) each Contract with any Governmental Authority;
(iii) any Contract with sole-source or single-source suppliers of material tangible products or services or pursuant to which the Company or any of its Subsidiaries has agreed to purchase a true minimum quantity of goods relating to any Company Product or has agreed to purchase goods relating to any Company Product exclusively from a certain party;
(iv) any stockholders’, investor rights, registration rights, tax receivables or similar or related Contract or arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(v) any Contract pursuant to which the Company or any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates) has continuing obligations or interests involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of its Subsidiaries or any other material contingent payment obligations, including any milestone or similar payments, including upon the achievement of regulatory or commercial milestones, in each case that is not terminable by the Company or its Subsidiaries without penalty without more than thirty (30) days’ notice;
(vi) each Contract that limits the freedom of the Company, any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates), to compete or engage in any line of business or geographic region or with any Person, sell, supply or distribute any product or service or that otherwise has the effect of restricting the Company, its Subsidiaries or Affiliates (including, after the Closing, Buyer or any of its Affiliates), from the development, marketing or distribution of any products or services;
(vii) each Contract with any Person providing for a partnership, joint venture, limited liability company agreement, and accurate list each material collaboration, research and development arrangement, strategic alliance, co-marketing arrangement or similar profit sharing arrangement (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(viii) each Contract entered into since January 1, 2022: (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries of any business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer, or similar transaction); or (B) pursuant to which the Company or any of its Subsidiaries will acquire or is obligated to acquire any business, assets, ownership interest or make an investment (other than the Company or any of its Subsidiaries);
(ix) each Contract with respect to the acquisition or disposition of any Person (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer or similar transaction) pursuant to which the Company or any of its Subsidiaries has (A) material continuing representations, covenants or indemnification obligations (other than in the ordinary course of business of the Company and its Subsidiaries in a manner consistent with past practice in connection with the development, sale or licensing of Company Products), or (B) any “earn-out” or similar contingent payment obligations, in each case, (x) other than any such obligations that are immaterial to the Company and its Subsidiaries, taken as a whole, or (y) other than any Contract that provides solely for the acquisition or disposition of inventory, raw materials or equipment in the ordinary course of business of the Company and its Subsidiaries in a manner consistent with past practice;
(x) each Contract to which the Company or any of its Subsidiaries is a party which grants an exclusive right to Intellectual Property Rights (other than Contracts with respect to generally commercially available software and hardware and customer Contracts for the sale of Company Products to distributors or end-users of such Company Products entered into in the ordinary course of business);
(xi) each Contract that grants any right of first refusal, right of first offer, right of first negotiation or similar preferential right in favor of a Third Party or that limits the ability of the Company, any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates) to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or material assets;
(xii) each Contract (A) containing exclusivity obligations; (B) containing any “most favored nations” provisions granted by any of the Company, or any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates); (C) pursuant to which any of the Company, or any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates) is obligated to purchase a minimum quantity of goods or services from another Person with a minimum contract value of not less than EUR 500,000 per contract, or (D) granting rights to any third party to, or otherwise restricting, the exploitation, sale, supply or license of any Company Product;
(xiii) other than instruments providing for indebtedness that would not, in the aggregate, exceed $1,000,000, each Contract that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indebtedness (including obligations under any capitalized leases but excluding agreements between the Company and any wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company) or pursuant to which the Company or any of its Subsidiaries guarantees any such indebtedness of any other Person (other than the Company or another wholly owned Subsidiary of the Company), (B) materially restricts the Company’s and its Subsidiaries’ (taken as a whole) ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset of the Company or its Subsidiaries that is material to the Company and its Subsidiaries or (D) is an interest rate derivative, currency derivative, forward purchasing, swap or other hedging contract;
(xiv) each Collective Bargaining Agreement;
(xv) each Contract that provides for a settlement or conciliation (A) with any Governmental Authority that (1) restricts or imposes material obligations upon the Company or its Subsidiaries (taken as a whole) or (2) materially disrupts the business of the Company and its Subsidiaries (taken as a whole) as currently conducted, or (B) that would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement;
(xvi) the top ten (10) Contracts measured by the aggregate payments made during the fiscal year ended December 31, 2024 with a customer of the Company or any Subsidiary of the Company, including distributors (excluding Contracts under which there are no further obligations of the Company or any Subsidiary of the Company to deliver products and purchase orders);
(xvii) any Contract (other than purchase orders issued the type described in the subclauses above) that involves aggregate payments by Seller or to the Company or any Subsidiary of the Company in excess of $5,000,000 per annum in the current calendar year or $5,000,000 in the aggregate; and
(xviii) each Contract not otherwise described in any other subsection of this Section 3.21(a) that would constitute a Third Party that are ancillary “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K as promulgated by the SEC) with respect to another the Company.
(b) A true, complete or redacted, as the case may be, and correct copy of each written Material Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is Agreement, and a party or which was entered into by or on behalf true, complete and correct summary of Seller, or by which any of the Acquired Assets is bound each oral Material Contract in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites effect as of the date of this Agreement; (iv) licenses , has been made available to commercially available software Buyer prior to the date of this Agreement. Except for matters that would not, individually or cloud in the aggregate, be or software reasonably expected to be, material to the Company and its Subsidiaries, taken as a service agreements; and (v) assignment agreements with employeeswhole, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorneyeach Material Contract is a valid, letters of delegation, declarations binding and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside enforceable obligation of the U.S. (other than local representative agreements and legal representative agreements Company or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses one of its Subsidiaries, on the one hand, and, to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage knowledge of the active pharmaceutical ingredients and other raw materials for any Compound or ProductCompany, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound other party or Productparties thereto, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of on the Acquired Assetsother hand, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their its terms, subject to the Enforceability Exception. Other than Exceptions, and each Material Contracts entered into on behalf Contract is in full force and effect, (ii) the Company and each of Sellerits Subsidiaries has performed all obligations required to be performed by it under each Material Contract and, Seller to the knowledge of the Company, each other party to each Material Contract has made available or delivered performed all obligations required to Purchaser a correct and complete copy of each written be performed by it under such Material Contract. Seller is not in material breach or material default of , (iii) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contracts Contract, has breached or Nondisclosure Agreementsviolated in any material respect any provision of, and no event has occurred that or taken or failed to take any act which, with notice or without notice, lapse of time, time or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material a default under the provisions of such Material Contract Contract, and no event neither the Company nor any of its Subsidiaries has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing received written or, to the Knowledge knowledge of Sellerthe Company, otherwise provided oral notice of any, and, to the knowledge of the Company, none of the Company or any of its intention Subsidiaries is in, default or material breach under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a default or material breach under) any Material Contract and (iv) neither the Company nor any of its Subsidiaries has received any written or, to repudiate the knowledge of the Company, oral notice from any provision of a other party to any such Material Contract that such party intends to terminate, or not renew, any such Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to adjust the Knowledge of Seller other, notice regarding fee schedule under such Material Contract in any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreementrespects.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Purchase Agreement (BioNTech SE), Purchase Agreement (CureVac N.V.)
Material Contracts. (ia) Section 5.1(i)(i) 3.12 of the Company Disclosure Schedules Letter sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andContracts to which, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; , the Company or any of its Subsidiaries, if any, is a party (each, a “Company Material Contract”):
(i) each Contract (A) not to (or otherwise restricting or limiting the ability of the Company or any of its Subsidiaries, if any, to) compete in any line of business or geographic area or (B) to restrict the ability of the Company or any of its Subsidiaries, if any, to conduct business in any geographic area;
(ii) each Contract (other than any under the Company’s benefit plan) that is reasonably likely to require, during the remaining term of such Contract, annual payments by the Company or any of its Subsidiaries that exceed $250,000;
(iii) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material Company Assets;
(iv) licenses all material Contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to commercially available software pay or cloud has the right to receive a royalty, license fee, franchise fee or software as a service agreements; and similar payment (v) assignment other than agreements with employees, including proprietary information non-exclusive licenses granted to the Company’s or its Subsidiaries’, if any, customers, and invention assignment agreements with employeesnon-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms);
(Ev) any Contract under which Seller pays all partnership, joint venture or receives milestone other similar agreements or royalty payments relating to any Compound or Product or any Product IParrangements;
(Fvi) any Contract agreement relating to the creation of Liens on any Acquired Assets indebtedness for borrowed money or the guarantee deferred purchase price of the payment property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or a series of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assetsrelated agreements) with an aggregate outstanding principal amount not exceeding $1,000,000;
(Gvii) any Contract entered into agreement for the disposition or acquisition by Seller the Company or any of its Affiliates in settlement Subsidiaries, if any, with material obligations of the Company or any of its Subsidiaries, if any, (other than confidentiality obligations) remaining to be performed or material Liabilities of the Company or any of its Subsidiaries, if any, continuing after the date of this Agreement, of any Legal Proceeding material business or any material amount of assets other dispute relating to than in the Acquired Assets or the Product Operations, including the conduct ordinary course of any clinical trialsbusiness;
(Hviii) any Contract that limits Seller’s ability agreement with (A) the top ten (10) customers of the Company and its Subsidiaries, if any, taken as a whole, as applicable and (B) the top ten (10) suppliers of the Company and its Subsidiaries, if any, taken as a whole, as applicable, in each case, for the 2022 fiscal year and as of September 30, 2023, measured by the aggregate obligations paid or agreed to make generally available any versions of any Compound pay to or Product developed by or for Sellerthe Company, as applicable;
(Iix) any agreement restricting or limiting the payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations that are required by applicable Law;
(x) any Contract for the research or Development development of any Compound or ProductIntellectual Property, other than any of the following those entered into in the Ordinary Course ordinary course of Business and, in each case that are not Acquired Business Contracts business with Company employees and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with contractors on the regulatory and ethics committee submissions and data processing activities Company’s standard form for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionssuch Contracts; and
(Oxi) any other Contract that is material to the Developmentextent not set forth in Section 3.12(a) of the Company Disclosure Letter pursuant to another subsection of this Section 3.12(a), manufacture all material agreements with any Governmental Authority.
(b) Each Company Material Contract is a valid and binding agreement of the Company or sale of any Compound its applicable Subsidiary, if any, except where the failure to be valid and binding would not, individually or Productin the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in each casethe aggregate, as currently conducted by Sellerreasonably be expected to have a Company Material Adverse Effect, other than any Contract relating to (i) real propertyneither the Company or such Subsidiary, (ii) employeesif any, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing ornor, to the Knowledge of Sellerthe Company, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenparty thereto, or to the Knowledge is in breach of Seller other, notice regarding any material violation or breach of, or default under, under any such Company Material Contract or Nondisclosure Agreement.
(iii) As of the date hereofContract, (Aii) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereofof this Agreement, there are no material disputes in connection with any such Company Material Contract and (iii) as of the date of this Agreement, no party under any Company Material Contract has given written notice of its intent to terminate or otherwise seek a material amendment to such Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Bruush Oral Care Inc.), Merger Agreement (Bruush Oral Care Inc.)
Material Contracts. (ia) Section 5.1(i)(i) Schedule 3.12 of the Seller Disclosure Schedules Letter sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andContracts to which, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; , the Company or any of its Subsidiaries, if any, is a party (each, a “Company Material Contract”):
(i) each Contract (A) not to (or otherwise restricting or limiting the ability of the Company or any of its Subsidiaries, if any, to) compete in any line of business or geographic area or (B) to restrict the ability of the Company or any of its Subsidiaries, if any, to conduct business in any geographic area;
(ii) each Contract (other than any Company Benefit Plan) that is reasonably likely to require, during the remaining term of such Contract, annual payments by the Company or any of its Subsidiaries that exceed $250,000;
(iii) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material Company Assets;
(iv) licenses all material Contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to commercially available software pay or cloud has the right to receive a royalty, license fee, franchise fee or software as a service agreements; and similar payment (v) assignment other than agreements with employees, including proprietary information non-exclusive licenses granted to the Company’s or its Subsidiaries’ customers, and invention assignment agreements with employeesnon-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms);
(Ev) any Contract under which Seller pays all partnership, joint venture or receives milestone other similar agreements or royalty payments relating to any Compound or Product or any Product IParrangements;
(Fvi) any Contract agreement relating to the creation of Liens on any Acquired Assets indebtedness for borrowed money or the guarantee deferred purchase price of the payment property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or a series of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assetsrelated agreements) with an aggregate outstanding principal amount not exceeding $1,000,000;
(Gvii) any Contract entered into agreement for the disposition or acquisition by Seller the Company or any of its Affiliates in settlement Subsidiaries, if any, with material obligations of the Company or any of its Subsidiaries, if any, (other than confidentiality obligations) remaining to be performed or material Liabilities of the Company or any of its Subsidiaries, if any, continuing after the date of this Agreement, of any Legal Proceeding material business or any material amount of assets other dispute relating to than in the Acquired Assets or the Product Operations, including the conduct ordinary course of any clinical trialsbusiness;
(Hviii) any Contract that limits Seller’s ability agreement with (A) the top 10 customers of the Company and its Subsidiaries, if any, taken as a whole, as applicable, and (B) the top 10 suppliers of the Company and its Subsidiaries, if any, taken as a whole, as applicable, in each case, for the 2022 fiscal year measured by the aggregate obligations paid or agreed to make generally available any versions of any Compound pay to or Product developed by or for Sellerthe Company, as applicable;
(Iix) any agreement restricting or limiting the payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations that are required by applicable Law;
(x) any Contract for the research or Development development of any Compound or ProductIntellectual Property, other than any of the following those entered into in the Ordinary Course ordinary course of Business and, in each case that are not Acquired Business Contracts business with Company employees and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with contractors on the regulatory and ethics committee submissions and data processing activities Company’s standard form for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionssuch Contracts; and
(Oxi) any other Contract that is material to the Developmentextent not set forth in Schedule 3.12(a) of the Seller Disclosure Letter pursuant to another subsection of this Section 3.12(a), manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated all material agreements with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceGovernmental Authority.
(iib) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct A true and complete copy of each written Company Material ContractContract (including any amendments thereto) entered into prior to the date of this Agreement has been made available to Buyer prior to the date of this Agreement. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Each Company Material Contract is a valid and binding agreement of the Company or its applicable Subsidiary, except where the failure to be valid and binding would not, individually or in material breach the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or material default of in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company or such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orSubsidiary nor, to the Knowledge of Sellerthe Company, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenparty thereto, or to the Knowledge is in breach of Seller other, notice regarding any material violation or breach of, or default under, under any such Company Material Contract or Nondisclosure Agreement.
(iii) As of the date hereofContract, (Aii) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereofof this Agreement, there are no material disputes in connection with any such Company Material Contract and (iii) as of the date of this Agreement, no party under any Company Material Contract has given written notice of its intent to terminate or otherwise seek a material amendment to such Company Material Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Recruiter.com Group, Inc.), Stock Purchase Agreement (GoLogiq, Inc.)
Material Contracts. (i) Except for Contracts (including all amendments and modifications thereto) filed as exhibits to the Company Reports as of the date of this Agreement, any Benefit Plan, or as set forth in Section 5.1(i)(i5.1(k)(i) of the Company Disclosure Schedules sets forth Schedule, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a true party to or bound by any Contract (a Contract described by clauses (A) through (M) of this Section 5.1(k)(i), including Contracts and accurate list all amendments and modifications thereto filed or required to be filed as exhibits to the Company Reports, being hereinafter referred to as a “Material Contract”):
(A) that is a “material contract” (as such term is defined in Item 601(b)(10) of each Contract Regulation S-K of the Exchange Act);
(B) that contains any (x) noncompete or exclusivity provisions to which the Company or any of its Subsidiaries is subject that would, after the Effective Time, materially restrict the ability of Parent or any of its Subsidiaries (other than the Company or any of its Subsidiaries) to compete in any line of business or geographic area, (y) most favored customer pricing or any other similar pricing restrictions in favor of a customer of the Company or any of its Subsidiaries who, in the year ended December 31, 2021, was one of the ten (10) largest sources of revenues for the Company and its Subsidiaries, based on amounts paid or payable (excluding any purchase orders issued entered into in the ordinary course of business);
(C) that provides for a material partnership, joint venture, collaboration or similar material arrangement;
(D) that is (x) an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or guaranteeing Indebtedness of any Person in excess of $5 million except for any Contract solely among or between the Company and any of its wholly owned Subsidiaries or (y) hedging, derivative, swaps or other similar Contract;
(E) that relates to the acquisition or disposition of any Person, business, assets or real property (whether by Seller merger, sale of stock, sale of assets or otherwise) and includes a minimum purchase, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries;
(F) that is a Real Property Lease for a property with square footage in excess of 100,000 square feet;
(G) that is a settlement agreement that (x) requires payment by the Company or any of its Subsidiaries after the date hereof in excess of $1 million or (y) imposes non-monetary obligations or restrictions on the Company or any of its Subsidiaries after the date of this Agreement which obligations or restrictions would apply to Parent or its Affiliates (including the Company and its Subsidiaries) following the Closing;
(H) relating to the pending acquisition or disposition of any Person, business, assets or real property (whether by merger, sale of stock, sale of assets or otherwise) having an aggregate purchase price in excess of $25 million;
(I) relating to (x) the licensing of Intellectual Property Rights by the Company (whether as licensee or licensor) that is material to the Company and its Subsidiaries, taken as a Third Party that are ancillary whole or (y) the development of any material Intellectual Property Rights owned or used by the Company (in each case, excluding (1) non-exclusive licenses for unmodified, commercial off the shelf computer software, (2) non-exclusive licenses entered into in the ordinary course of business, and (3) agreements with employees or independent contractors on the Company’s standard form of agreement);
(J) with any customer of the Company or any of its Subsidiaries who, in the year ended December 31, 2021 was one of the ten (10) largest sources of revenues for the Company and its Subsidiaries, based on amounts paid or payable (excluding any purchase orders entered into in the ordinary course of business); or
(K) with any vendor of the Company or any of its Subsidiaries who, in the year ended December 31, 2021, was one of the ten (10) largest sources of payment obligations for the Company and its Subsidiaries, based on amounts paid or payable (excluding any purchase orders entered into in the ordinary course of business).
(ii) The Company has made available to another Parent prior to the date of this Agreement accurate and complete copies of all written Contract with Material Contracts required to be identified in Section 5.1(k)(i) of the same Third Party and that do not constitute an Assumed Liability) Company Disclosure Schedule, including all amendments thereto, as in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereofof this Agreement, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each Material Contract is a valid and binding agreement of the Company or any of its Subsidiaries party thereto, enforceable against the Company or any of its Subsidiaries and, to the Knowledge of the Company, each other party thereto in accordance with its terms, and is in full force and effect, subject in each case to the Bankruptcy and Equity Exception (and subject to the termination or expiration of any such Material Contract after the date of this Agreement in accordance with its terms). Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, neither the Company nor any of its Subsidiaries, and, to the Knowledge of the Company, as of the date of this Agreement, no other party thereto, is (or with or without notice or lapse of time would be) in default or breach under the terms of any such Material Contract and no event has occurred (with respect to defaults or breaches by any other party thereto, to the Knowledge of the Company, as of the date of this Agreement) that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000constitute such a violation or breach, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has give any Person the right to accelerate the maturity or performance of any Material Contract or (C) give any Person the right to cancel, terminate or modify in a credit available under manner adverse to the IQVIA Agreement in an amount equal to $2,480,000Company any Material Contract.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Cornerstone Building Brands, Inc.)
Material Contracts. (a) Section 5.19 of the Company Disclosure Letter lists the following Contracts to which the Company or any of its Subsidiaries is a party or is otherwise bound by (each such Contract, a “Company Material Contract”):
(i) Section 5.1(i)(iany Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Disclosure Schedules sets forth Securities Act;
(ii) any Contract containing covenants binding upon the Company or any Subsidiary of the Company that (A) materially restricts the ability of the Company or any Subsidiary of the Company (or which, following the consummation of the Offer or the Merger, could materially restrict the ability of the Surviving Corporation) to compete (1) in any business that is material to the Company and its Subsidiaries, taken as a true and accurate list whole, as of the date of this Agreement, (2) with any person or (3) in any geographic area or (B) could require the disposition of any material assets or line of business of the Company or any of its Subsidiaries, in each case except for any such Contract that may be cancelled without penalty by the Company or any of its Subsidiaries upon notice of 60 days or less;
(iii) any Contract with respect to a joint venture, partnership or similar arrangement;
(iv) any Contract (other than vendor Contracts for the purchase orders issued of merchandise for resale) pursuant to which the Company or any of its Subsidiaries made or received payments of more than $25 million during the 12-month period prior to the date hereof, with material payment obligations remaining to be performed by Seller the Company after the date of this Agreement;
(v) any Contract (A) that is a “requirements” Contract entered into with a vendor for the purchase of merchandise for resale or (B) under which the consummation of the Transactions would give rise to a Third Party that are ancillary third party having a right of termination, amendment, acceleration or cancellation thereunder;
(vi) any loan, credit, security or pledge agreement, debenture or similar Contract pursuant to another written which any indebtedness of the Company or any of its Subsidiaries for borrowed money (other than ordinary course trade payables);
(vii) any Contract relating to guarantees or assumptions of obligations of any third Person;
(viii) any Contract pursuant to which the Company or any of its Subsidiaries disposed of or acquired, or agreed to dispose of or acquire, a material business or, any amount of material assets by the Company or any of its Subsidiaries, with material obligations remaining to be performed or material liabilities continuing after the date of this Agreement, including, without limitation, any “earn out” or other contingent payment obligations, or any indemnification obligations;
(ix) any material hedge, collar, option, forward purchasing, swap, derivative or similar Contract;
(x) any Contract with any director, officer, employee, consultant or Affiliate of the same Third Party Company or any of its Subsidiaries (other than any Company Benefit Plan);
(xi) any material Contract with any Governmental Entity;
(xii) any Contract under which the Company is a lessee of, or holds or uses, any equipment, machinery, vehicle or other tangible personal property owned by a Person which requires aggregate future payments equal to or in excess of $5 million;
(xiii) any Contract for capital expenditures or the acquisition or construction of fixed assets which requires future payments in excess of $10 million;
(xiv) any Contract pursuant to which the Company or any Subsidiary of the Company (A) is granted or obtains any right to use any material Intellectual Property Rights (other than Contracts granting rights to use commercial-off-the-shelf Software), (B) is restricted in its right to use or register any material Company Owned Intellectual Property Rights or (C) permits any other Person to use, enforce or register any material Company Owned Intellectual Property Rights, including any license agreements, coexistence agreements, and covenants not to ▇▇▇, other than Contracts with suppliers, manufacturers, distributors and other service providers entered into in the ordinary course of business consistent with past practice; and
(xv) any amendment, supplement or modification of a Contract described in clauses (i) through (xiv) or any binding commitment or binding agreement to enter into any of such Contract.
(i) Each Company Material Contract is valid and binding on the Company and is in full force and effect, and, to the Knowledge of the Company, is valid and binding on the other parties thereto (in each case subject to the Bankruptcy and Equity Exception), (ii) each of the Company and its Subsidiaries has in all material respects performed all obligations required to be performed by it under each Company Material Contract and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material breach or default on the part of the Company or any of its Subsidiaries under any such Company Material Contract. To the Knowledge of the Company, no other party to any Company Material Contract is in material breach or default thereunder, nor does any condition exist that do with notice or lapse of time or both would constitute a material breach or default by any such other party thereunder. Neither the Company nor any of its Subsidiaries has received any written notice, or to the Knowledge of the Company, oral notice, of termination or cancellation under any Company Material Contract, received any notice of material breach or default under any Company Material Contract that has not been cured, or granted to any third party any rights, adverse or otherwise, that would constitute an Assumed Liability) a material breach of any Company Material Contract. The Company has furnished or otherwise made available to Parent true and correct copies of all Company Material Contracts in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Pep Boys Manny Moe & Jack), Merger Agreement (Icahn Enterprises Holdings L.P.)
Material Contracts. (a) FX has made available to XC a true and complete copy (or written summary of all material terms) of each Material Contract in force on the date hereof and listed each such Material Contract on Section 2.19(a) of the FX Disclosure Letter.
(b) For purposes of this Agreement “Material Contract” means any Contract to which FX or any of its Subsidiaries is a party to or by which FX, any of its Subsidiaries or any of their respective properties or assets is bound that:
(i) Section 5.1(i)(iwould be required to be filed by FX as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Disclosure Schedules sets forth Securities Act if FX was subject thereto,
(ii) contains any non-compete or exclusivity provision or otherwise limits the freedom of FX, XC or any of their respective Subsidiaries after the Closing Date to compete in any line of business or sell, supply, acquire, obtain or distribute any product or service, in each case, in any geographic area in a true respect or to a degree that is material, other than any Contract that can be terminated (including such restrictive provisions) by FX or any of its Subsidiaries on ninety (90) (or fewer) days’ notice without payment by FX or any of its Subsidiaries of any material penalty, premium or other amount payable thereunder as a result of such termination and accurate list not in respect of amounts accrued but unpaid prior to such termination,
(iii) contains any “most favored nation” pricing provisions binding FX, XC or any of their respective Subsidiaries after the Closing Date, in a Contract with any Third Party, in a respect or to a degree that is material, other than any Contract that can be terminated (including such provision) by FX or any of its Subsidiaries on ninety (90) (or fewer) days’ notice without payment by FX or any of its Subsidiaries of any material penalty, premium or other amount payable thereunder as a result of such termination and not in respect of amounts accrued but unpaid prior to such termination,
(iv) is or relates to the Organizational Documents of any partnership, joint venture or similar arrangement to the extent such partnership, joint venture or similar arrangement is material to FX and its Subsidiaries, taken as a whole,
(v) (A) requires or provides for capital expenditures (or series of capital expenditures) by FX or any of its Subsidiaries in an amount in excess of $25 million individually or (B) requires or specifically provides for any annual payments or receipts by FX or any of its Subsidiaries in an amount in excess of $25 million, in each case other than (x) any Contract entered into in the ordinary course of business or (y) any Contract that can be terminated by FX or any of its Subsidiaries on ninety (90) (or fewer) days’ notice without payment by FX or any of its Subsidiaries of any material penalty or premium,
(vi) contains an option or grants any right of first refusal or right of first offer, right of first negotiation or similar right in favor of a party other than FX or any of its Subsidiaries or that limits or purports to limit the ability of FX or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses in a respect or to a degree that is material to FX and its Subsidiaries, taken as a whole,
(vii) involves the acquisition or disposition from or to another Person, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration in excess of $100 million (other than purchase orders issued acquisitions of inventory in the ordinary course of business) entered into on or after January 1, 2017 or that contains material “earn-out”, indemnification or other contingent or deferred payment obligations that would reasonably be expected to involve payments by Seller or to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as FX or any of its Subsidiaries after the date of this Agreement in excess of $100 million (in each case, other than acquisitions or dispositions of supplies, inventory, merchandise, products, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of FX or its Subsidiaries),
(viii) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than those among FX and its Subsidiaries) made or entered into outside the ordinary course of business relating to indebtedness in excess of $5 million,
(ix) is with a top five (5) customer of FX and its Subsidiaries, taken as a whole, with respect to aggregate revenue from such customer during the fiscal year ended March 31, 2017, pursuant to which Seller FX or its Subsidiaries supply products and/or services to such customer, excluding purchase orders,
(x) is with a top five (5) supplier of FX and its Subsidiaries, taken as a whole, with respect to aggregate expenditures by FX and its Subsidiaries during the fiscal year ended March 31, 2017, pursuant to which FX or its Subsidiaries procure products and/or services from such supplier, excluding purchase orders,
(xi) is a party settlement, conciliation or which was entered into by similar agreement other than any such agreement that (x) would require FX or on behalf of Seller, or by which any of its Subsidiaries to pay consideration of less than $10 million after the Acquired Assets date of this Agreement and (y) is bound in limited only to the following categories payment of money and customary confidentiality agreements,
(xii) expressly limits the “Material Contracts”):
ability of FX or any of its Subsidiaries from (A) any Contract establishing a joint venture making distributions or collaborationdeclaring or paying dividends in respect of their capital stock, co-promotion partnership interests, membership interests or like arrangementother equity interest, or involving a sharing with another Person of profitsas the case may be, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) making loans to FX or any Contract containing covenants prohibiting of its Subsidiaries or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) granting Liens on the property of FX or any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;of its Subsidiaries,
(Dxiii) any constitutes a lease, sublease, license agreement, occupancy agreement or other Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller FX or any of its Affiliates Subsidiaries leases, subleases or licenses from another Person, or is otherwise granted a right to occupy, any material real property,
(xiv) constitutes or includes a license or non-assertion covenant granted by FX or any of its Subsidiaries to a Third Party with respect to FX Intellectual Property, which license or covenant is material to FX and its Subsidiaries, taken as a whole, excluding “shrink-wrap,” “click-wrap” or similar form end user agreements or licenses or covenants granted to customers in settlement the ordinary course of business,
(xv) constitutes or includes a license or non-assertion covenant granted by a Third Party to FX or any Legal Proceeding of its Subsidiaries with respect to any Intellectual Property Rights, which license or covenant is material to FX and its Subsidiaries, taken as a whole, excluding commercial off-the-shelf or other dispute relating to the Acquired Assets non-exclusive software or the Product Operations, including the conduct of any clinical trials;technology license agreements,
(Hxvi) any Contract that limits Seller’s ability to make generally available any versions of any Compound is (x) a written employment agreement or Product developed by (y) a consulting, independent contractor or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business andnon-employee service provider agreement with an individual, in each case that are provides for the payment by FX or any of its Subsidiaries of more than $350,000 in any 12-month period, or
(xvii) constitutes a material Related Party Contract.
(c) Except for breaches, violations or defaults which have not Acquired Business Contracts had and are deemed Excluded Liabilities: would not reasonably be expected to be, individually or in the aggregate, material to FX and its Subsidiaries, taken as a whole:
(i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside each of the U.S. (other than local representative agreements Material Contracts is valid and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; binding and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, in full force and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage effect and an enforceable obligation of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product FX or any of the Acquired Assetsits Subsidiaries and, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Developmentknowledge of FX, manufacture of the other party or sale of any Compound or Productparties thereto, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated accordance with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.its terms,
(ii) All FX and each of the Material Contracts are valid and binding agreements of Sellerits Subsidiaries, enforceable in accordance with their termsand, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf knowledge of SellerFX, Seller each other party thereto, has made available or delivered performed all obligations required to Purchaser a correct and complete copy of be performed by it under each written Material Contract. Seller is not in material breach or material default of , and
(iii) neither FX nor any of its Subsidiaries, nor to the knowledge of FX, any other party to a Material Contracts Contract, has violated any provision of, or Nondisclosure Agreementstaken or failed to take any act which, and no event has occurred that with notice or without notice, lapse of time, or both, would constitute a material default by Seller under the provisions of such Material Contract, and neither FX nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Material Contract. To .
(d) Other than as set forth in Section 2.19(d) of the Knowledge FX Disclosure Letter, neither FX nor any of Seller, no other its Affiliates is party to a Material Contract is in material breach that:
(i) contains any non-compete or material default exclusivity provision or otherwise limits the freedom of such Material Contract and no event has occurred that with notice FX or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention Affiliates to repudiate compete in any provision line of a Material Contract business or Nondisclosure Agreement. Seller has not given sell, supply, acquire, obtain or distribute any product or service, in each case, that would bind or purport to bind XC or received any of its Affiliates from and after the RA Closing or the SA Closing;
(ii) contains any other Person “most favored nation” pricing provisions that would bind or purport to bind XC or any written, of its Affiliates from and after the RA Closing or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.SA Closing; or
(iii) As would otherwise bind, obligate or restrict, or purport to bind, obligate or restrict, XC or any of its Affiliates, or any of their respective assets, in any fashion by virtue of XC and its Affiliates becoming Affiliates of FH or any of its Affiliates upon the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000SA Closing.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Redemption Agreement, Redemption Agreement (Xerox Corp)
Material Contracts. (ia) Section 5.1(i)(i3.15(a) of the Company Disclosure Schedules Letter sets forth a true correct and accurate complete list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement following Contracts related to the Business to which Seller or any of its Subsidiaries is a party or which was entered into by or on behalf of Seller, or by which Seller or any of its Subsidiaries or any of the Acquired Program Assets is bound in as of the following categories Execution Date (the each, a “Material ContractsContract”):
(Ai) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any each Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; its Subsidiaries currently leases or subleases real property to or from any Person;
(ii) each Contract (or group of related Contracts with respect to a single transaction or series of related transactions) that involves future payments, other residual Liability, performance or services agreements containing non-exclusive licenses or delivery of goods or materials to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement Subsidiaries of any Legal Proceeding amount or value reasonably expected to exceed [**] in any future 12-month period or [**] over the life of the Contract;
(iii) each Contract pursuant to which Seller or any of its Subsidiaries has received grant funding or any other revenues in excess of [**];
(iv) each Contract pursuant to which Seller or any of its Subsidiaries could be required to pay any royalties, earn-out payments or other dispute deferred or contingent consideration to any Person;
(v) each Contract with any academic institution or research center (or any Person working for or on behalf of any of the foregoing);
(vi) each Contract that contains a covenant restricting any research, development, product design, manufacturing, supply, production, distribution, marketing, sale or commercialization of any Program Assets;
(vii) each Contract relating to the Acquired Assets or the Product Operations, including the conduct of research and development activities or clinical trials with respect to any clinical trialsProgram Assets, or otherwise involving the development of any material Intellectual Property Rights related to the Business on behalf or at the request of Seller or any of its Subsidiaries;
(Hviii) each Contract pursuant to which Seller or any of its Subsidiaries is a party, or is otherwise bound, and the ultimate contracting counterparty of which is a Governmental Entity (including any subcontract with a prime contractor or other subcontractor that is a party to any such contract);
(ix) each Contract pursuant to which Seller or any of its Subsidiaries grants or receives a license or other right under any Intellectual Property Rights that are material to the Business, other than non-exclusive licenses to commercially available Software granted to Seller or any of its Subsidiaries;
(x) each Contract concerning the establishment or operation of a partnership, strategic alliance, collaboration relationship, joint venture, limited liability company or similar agreement or arrangement;
(xi) each Contract entered into at any time within the three-year period prior to the Execution Date pursuant to which Seller or any of its Subsidiaries acquired another operating business and each other Contract entered into at any time prior to the Execution Date pursuant to which Seller or any of its Subsidiaries acquired another operating business;
(xii) each Contract that limits or purports to limit, directly or indirectly, the freedom of Seller or any of its Subsidiaries (or, after the Closing, Buyer or any of its Affiliates) to compete in any line of business or with any Person or engage in any line of business within any geographic area, or restricts, directly or indirectly, Seller’s or any of its Subsidiaries’ (or, after the Closing, Buyer’s or any of its Affiliates’) ability to make generally available solicit or hire any versions Person or solicit business from any Person, and each Contract that could require the disposition of any Compound material assets or Product developed by line of business of Seller or for Sellerits Subsidiaries (or, after the Closing, Buyer or any of its Subsidiaries);
(Ixiii) each Contract obligating Seller or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single third party or granting any third party the exclusive right to develop, market, sell or distribute Seller’s or any of its Subsidiaries’ products or services;
(xiv) each Contract for the research containing a “most favored nation” or Development similar provision in favor of any Compound counterparty of Seller or Productany of its Subsidiaries or a limitation on Seller’s or any of its Subsidiaries’ ability to increase prices;
(xv) each Contract creating Indebtedness or guaranteeing any such obligations;
(xvi) each Contract creating or granting a Lien on any Program Assets, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller purchase money security interests in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside acquisition of equipment in the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into ordinary course of business consistent with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)past practice;
(Jxvii) any each Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreementscontaining covenants requiring capital expenditures;
(Kxviii) each Contract related to any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials settlement of any Compound or ProductAction;
(Lxix) any each Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Productthat was not negotiated and entered into on an arm’s-length basis;
(Mxx) any each Contract for that would reasonably be expected to prevent, materially delay or materially impair the maintenance consummation of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsTransactions; and
(Oxxi) each collective bargaining agreement or Contract with any union, staff association, works council or other agency or representative body certified or otherwise recognized for the purposes of bargaining collectively.
(b) Seller has previously delivered to, or made available to, Buyer current and complete copies of each written Material Contract that is material to the Development, manufacture or sale and a detailed written description of any Compound or Producteach oral Material Contract, in each case, including all amendments and waivers thereto. Each Material Contract is valid, binding and enforceable against Seller or its Subsidiaries, as currently conducted by Sellerthe case may be, other than any Contract relating and, to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements Knowledge of Seller, enforceable each other party thereto, and is in accordance with their terms, subject to the Enforceability Exceptionfull force and effect. Other than Material Contracts entered into on behalf any consent or waiver that may be required in connection with the consummation of Sellerthe Transactions, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller there is not in material no breach or material violation of, or default of under, any such Material Contract by Seller or any of the Material Contracts or Nondisclosure Agreements, its Subsidiaries and no event has occurred that that, with notice or the lapse of time, time or the giving of notice or both, would constitute a material default thereunder by Seller under or any Material Contractof its Subsidiaries or would permit or cause the termination, non-renewal or modification thereof or acceleration or creation of any right or obligation thereunder. To the Knowledge of Seller, no other party counterparty to a any Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreementthereof.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Biohaven Research Ltd.), Membership Interest Purchase Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Material Contracts. Neither Buyer nor any of its Subsidiaries is a party to or bound by any (iwhether written or oral):
(a) Section 5.1(i)(iemployment, severance or non-competition agreements with Buyer Employees;
(b) operating lease, whether as lessor or lessee, with respect to any real property;
(c) contract, whether as licensor or licensee, for the license of the Disclosure Schedules sets forth a true and accurate list of each Contract any patent, know-how, trademark, trade name, service ▇▇▇▇, copyright, or other intangible asset (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as non-negotiated licenses of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialscommercially available computer software);
(Bd) loan or guaranty agreement, indenture, or other instrument, contract, or agreement under which any Contract containing covenants prohibiting money has been borrowed or limiting the right to compete loaned, which has not yet been repaid, or engage in any aspect note, bond, or other evidence of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaindebtedness has been issued and remains outstanding;
(Ce) any Contract granting most favored nation mortgage, security agreement, conditional sales contract, capital lease, or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or similar agreement that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is effectively creates a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens lien on any Acquired Assets or the guarantee assets of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Buyer or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
Subsidiaries (H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business andconditional sales contract, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorneycapital lease, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with agreement that creates a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorslien only on tangible personal property);
(Jf) contract restricting Buyer or any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, of its Subsidiaries in any material respect from engaging in business or storage of the active pharmaceutical ingredients and from competing with any other raw materials for any Compound or Product, and related quality agreementsparties;
(Kg) any Contract for the ongoing or planned analytical testing or storage plan of biological specimens collected from subjects participating in clinical trials of any Compound or Productreorganization;
(Lh) partnership or joint venture agreement;
(i) collective bargaining agreement or agreement with any Contract labor union or association representing the Buyer Employees;
(j) contracts and other agreements for the distributionsale of any of its material assets or properties or for the grant to any person of any preferential rights to purchase any of its assets or properties other than in the ordinary course of business except for contracts or agreements pursuant to which the sale or purchase has been completed and there are no material obligations remaining;
(k) material warehousing, promotiondistributorship, representative, marketing, reselling sales agency or other Commercialization of any Compound or Product;advertising agreements; or
(Ml) any Contract for the maintenance material contract" (as defined in Item 601(b)(10) of Regulation S-K of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) SEC). All of the foregoing are collectively called "Buyer Material Contracts." To the extent Buyer Material Contracts are valid evidenced by documents, true and binding agreements of Seller, enforceable in accordance with their terms, subject complete copies have been delivered or made available to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material ContractCompany. To the Knowledge of Sellerextent Buyer Material Contracts are not evidenced by documents, no other party written summaries have been delivered or made available to a the Company. Each Buyer Material Contract is in material breach full force and effect, unless the failure of any Buyer Material Contracts to be in full force and effect has not had and would not be reasonably likely to have, individually or material default in the aggregate, a Buyer Material Adverse Effect. Neither Buyer nor any of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orits Subsidiaries nor, to the Knowledge knowledge of SellerBuyer, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person party is in breach of or in default under any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereofBuyer Material Contracts, (A) except for breaches or defaults that have not had and would not be reasonably likely to have, individually or in the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000aggregate, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000Buyer Material Adverse Effect.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Minntech Corp), Merger Agreement (Netsilicon Inc)
Material Contracts. (ia) Section 5.1(i)(i) 3.16 of the Company Disclosure Schedules sets forth a true Letter lists, and accurate list of each Contract (other than purchase orders issued by Seller the Company has made available to a Third Party that are ancillary Parent prior to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of SellerAgreement, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaborationtrue, co-promotion or like arrangementcorrect and complete copies of, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into contracts (or a summary of a contract if pursuant to its terms it cannot be provided) to which the Company or any of the Company Subsidiaries is bound, in each case other than (x) a Company Benefit Plan and (y) contracts referred to in Section 3.16 (a)(i) (all of which are publicly available):
(i) that would be required to be filed by the Ordinary Course Company or any of Business andthe Company Subsidiaries as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) that contains covenants that limit the ability of the Company or any of the Company Subsidiaries to compete in any business or with any person or in any geographic area or distribution or sales channel, or to sell, supply or distribute any service or product, in each case, that are not Acquired Business Contracts could reasonably be expected to be material to the business of the Company and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of Company Subsidiaries, taken as a service provider performing services for or on behalf of Seller; whole;
(iii) agreements with clinical investigators and clinical sites for the conduct of that relates to a clinical studyjoint venture, which study is complete partnership, limited liability company or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software other similar agreement or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract arrangement relating to the creation of Liens on any Acquired Assets formation, creation, operation or the guarantee of the payment of Liabilities or performance of obligations control of any other Person by Seller relating to any Compound partnership or Product joint venture or any Acquired Assets;
similar entity or arrangement (G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any partnership or limited liability company operating agreement of a direct or indirect wholly-owned Company Subsidiary) or pursuant to which the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product Company or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; andCompany Subsidiaries has an obligation (contingent or otherwise) to make a material investment in or a material extension of credit to any person;
(Oiv) that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other Contract 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 commodities, emissions allowances, renewable energy credits, currencies, interest rates, foreign currency and other indices, in each case, that is material to the Developmentbusiness of the Company and the Company Subsidiaries, manufacture or sale of any Compound or Producttaken as a whole, in each case, as currently conducted by Seller, case other than agreements for the purchase and sale of coal, diesel fuel and ANFO;
(v) that relates to (x) indebtedness under which the Company and/or any Contract relating of the Company Subsidiaries has outstanding obligations in excess of $10,000,000 or (y) conditional or similar sale arrangements in connection with which the aggregate actual or contingent obligations of the Company and the Company Subsidiaries under such contract are greater than $10,000,000;
(vi) for the purchase and sale of coal under which (x) the aggregate amounts to be paid by the Company and the Company Subsidiaries over the remaining term of such contract would reasonably be expected to exceed $20,000,000 in any twelve-month period or (y) the aggregate amounts to be received by the Company and the Company Subsidiaries over the remaining term of such contract would reasonably be expected to exceed $20,000,000 in any twelve-month period; or
(vii) that would or would reasonably be expected to prevent or materially delay the Company’s ability to consummate the Merger or the other Transactions. Each contract of the type described in subclauses (i) real property, through (iivii) employees, or employee compensation or benefit matters, including any Employee above (in each case other than a Company Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceis referred to herein as a “Company Material Contract.”
(iib) All of the Each Company Material Contracts are Contract is valid and binding agreements of Selleron the Company or the Company Subsidiary party thereto and, enforceable in accordance with their terms, subject to the Enforceability ExceptionKnowledge of the Company, each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect on the Company. Other than There is no default under any such Company Material Contracts entered into on behalf of Seller, Seller has made available Contract by the Company or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure AgreementsCompany Subsidiaries or, to the Knowledge of the Company, by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or lapse of time, or both, both would constitute a material default thereunder by Seller under the Company or any Material Contract. To of the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing Company Subsidiaries or, to the Knowledge of Sellerthe Company, otherwise provided notice of its intention by any other party thereto, in each case except as would reasonably be expected to repudiate any provision of result, individually or in the aggregate, in a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to Adverse Effect on the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementCompany.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (International Coal Group, Inc.), Merger Agreement (Arch Coal Inc)
Material Contracts. (a) Schedule 5.9(a) sets forth all of the following Contracts, in each case, which both (i) Section 5.1(i)(irelate exclusively to, or are necessary for Seller’s conduct of, the Business and (ii) of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller or any Affiliate is a party or which was entered into by or on behalf of Seller, or by which Seller or any of the Acquired Assets is Affiliate or Seller’s or any Affiliate’s assets or properties are bound in the following categories (collectively, the “Material Contracts”):
(Ai) any each Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person the Customers of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or ProductBusiness, including each alarm lease, maintenance agreement, repair agreement, service agreement and monitoring agreement with Customers of the conduct of any clinical trialsBusiness (collectively, the “Customer Contracts”);
(Bii) each Contract relating to any partnership, joint venture, strategic alliance or sharing of profits;
(iii) each Contract containing covenants prohibiting or limiting the right of Seller to compete or (1) engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations compete with any Person in any business or in any geographical areaarea or (2) solicit or hire any Person or customers with respect to the Business;
(Civ) any Contract granting most favored nation each Intellectual Property License, except for licenses implied by the sale of goods, licenses to Software generally commercially available, off the shelf Software or exclusive rights relating Software licensed pursuant to any Compound shrink-wrap or Product “click to any other Personaccept” agreements;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any each Contract relating to the creation incurrence, assumption or guarantee of Liens any indebtedness or imposing a Lien on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Purchased Assets;
(Gvi) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialseach Real Property Lease;
(Hvii) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Sellereach Personal Property Lease;
(Iviii) each Contract pertaining to employment arrangements with any Employee, including any Contract providing for the research severance, retention, change in control or Development other similar payments or benefits of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)Employees;
(Jix) any each Contract for between Seller, on the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Productone hand, and related quality agreementsSeller’s Affiliates, on the other hand;
(Kx) any each Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Productwith a Governmental Body;
(Lxi) any each Contract for the distribution, promotion, marketing, reselling that contains a “most favored nation” clause or other Commercialization of any Compound term providing preferential pricing or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionstreatment; and
(Oxii) any other each Contract that is otherwise material to to, or necessary for Seller’s conduct of, the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by SellerBusiness, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancethe Excluded Contracts.
(iib) All Each of the Material Contracts are is in full force and effect and is the legal, valid and binding agreements obligation of Seller and, to the Knowledge of Seller, of the other parties thereto, enforceable against each of them in accordance with their terms, its terms subject to the Enforceability Exception. Other than Material Contracts entered into on behalf applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of Sellerequity, Seller has made available including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or delivered to Purchaser a correct and complete copy of each written Material Contractin equity). Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing ornor, to the Knowledge of Seller, otherwise provided notice of its intention is any other party to repudiate any provision of a Material Contract or Nondisclosure Agreementin material breach thereof. Seller has not given delivered or made available to or received from any other Person any writtenPurchaser true, or to the Knowledge correct and complete copies of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As all of the date hereofMaterial Contracts, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000together with all amendments, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000modifications or supplements thereto.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Interface Security Systems, L.L.C.), Asset Purchase Agreement (Interface Security Systems Holdings Inc)
Material Contracts. Schedule 4.27 sets forth a list of the Material Contracts. Complete and accurate copies of the Material Contracts have been delivered to the Purchaser, and:
(i) Section 5.1(i)(i) none of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which Material Contracts contains any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
covenant: (A) expressly limiting the freedom of the Corporation to compete in any Contract establishing a joint venture or collaboration, co-promotion or like arrangementline of business, or involving a sharing with another Person transfer or move any of profitsits assets; or (B) which affects the business practices, losses, costs, royalties, milestone payments, operations or Liabilities financial condition of Seller relating to the Acquired Assets Corporation or the Development, manufacture, continued operation of the Corporation on or Commercialization of any Compound or Product, including after the conduct of any clinical trialsClosing Date as currently conducted;
(Bii) any Contract containing covenants prohibiting or limiting the right to compete or engage transactions contemplated by this Agreement will not result in any aspect change to any material terms of the Product Operations Material Contracts;
(iii) each Material Contract is a legal, valid and binding obligation of the Corporation, enforceable by or prohibiting against the Corporation in accordance with its terms, and is in full force and effect, and will be in full force and effect on identical terms immediately following the Closing Date, subject, however, to such limitations with respect to enforcement as are generally imposed by Law on creditors, in particular in connection with bankruptcy or restricting Seller’s ability similar proceedings, and to conduct the Product Operations extent that equitable remedies such as specific performance and injunction are in the discretion of the competent court;
(iv) there are no exclusivity provisions or similar such provisions in any Material Contract or other Contract with any Person that the Corporation has provided, is or in will be providing, or is required to provide, any geographical areaproducts or services to;
(Cv) there are no “most favoured nations” or similar such favourable pricing or commercial terms in any Material Contract granting most favored nation or exclusive rights relating other Contract with any Person that the Corporation has provided, is or will be providing, or is required to provide, any Compound products or Product to any other Personservices to;
(Dvi) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in neither the Acquired Assets (or that would Vendors nor the Corporation have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andany agreements, in each casecontracts, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses covenants or other arrangements with any Person to Intellectual Property Rights included in the Acquired Assets provide for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical studysubsidies, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product discount purchase privileges or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsarrangements; and
(Ovii) any other Contract that is in all material to respects, all obligations of the Development, manufacture or sale of any Compound or Product, in Corporation under each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreementshave been performed, and there are no event has occurred that defaults, events of default or violations (or which with notice or without notice, lapse of time, time or both, would constitute could reasonably be expected to, individually or in the aggregate, result in a material default, event of default by Seller or violation) under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse on the part of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing the Corporation or, to the Knowledge knowledge of Sellerthe Vendors, otherwise provided notice on the part of its intention the other party (or parties) to repudiate any provision such Material Contract. Neither the Corporation nor, to the knowledge of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from the Vendors, any other Person any written, party (or parties) to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreementhas repudiated any such Material Contract.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Share Purchase Agreement (Evio, Inc.), Share Purchase Agreement (Evio, Inc.)
Material Contracts. (ia) Section 5.1(i)(iSchedule 3.21(a) of the Company Disclosure Schedules sets forth Letter contains a true and accurate complete list of each Material Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liabilityany Employee Plan) in effect or with any outstanding obligations or liabilities thereunder (other than customary surviving confidentiality and indemnity provisions under which no claims have been made or would be reasonably expected to be made) as of the date hereof. As used in this Agreement, a “Material Contract” means any of this Agreement the following Contracts to which Seller the Company or any of its Subsidiaries is a party or by which was entered into by or on behalf of Sellersuch Person is, or by which any of the Acquired Assets is bound in the following categories its properties or assets are, bound, including all amendments, modifications, supplements, waivers, extensions and renewals thereof:
(the “Material Contracts”):
i) any Contract (A) the terms of which obligate or may in the future obligate the Company or any of its Subsidiaries to make any severance, termination or similar payment to any current or former Service Provider, or (B) pursuant to which the Company or any of its Subsidiaries may be obligated to make any bonus or similar payment to any current or former Service Provider in connection with the consummation of the transactions contemplated by this Agreement;
(ii) any Contract establishing a providing for any partnership, joint venture venture, strategic alliance or other similar arrangement;
(iii) any Contract relating to (A) the research, development, distribution, marketing, supply, license (other than Ordinary Course Licenses), collaboration, co-promotion or like arrangementmanufacturing of any Company Product, or involving a sharing (B) the Exploitation of any Company Product (other than, in each case, Unscheduled Contracts that do not have licenses other than Ordinary Course Licenses, clinical trial agreements (but not contract research organization agreements) and Contracts on the Company’s or its Subsidiaries’ form agreements made available to Parent with another Person current or former employees, vendors, service providers or independent contractors);
(iv) any Contract (excluding (1) nondisclosure agreements, proprietary information assignment agreements with Employees of profitsthe Company or any of its Subsidiaries, lossesagreements with consultants and Service Providers, costsin each case on the Company’s or its Subsidiaries’ form agreements made available to Parent, royalties, milestone payments(2) Ordinary Course Licenses and (3) licenses for commercial off-the-shelf computer Software that are generally available on nondiscriminatory pricing terms) pursuant to which the Company or any of its Subsidiaries (A) obtains any right to Exploit, or Liabilities a covenant not to be sued under, any Intellectual Property Right or (B) grants any right to Exploit, or a covenant not to be sued under, any Company Intellectual Property Right;
(v) any Contract with any Governmental Authority;
(vi) any Contract (A) with sole-source or single-source suppliers of Seller material tangible products or services or pursuant to which the Company or any of its Subsidiaries has agreed to purchase a minimum quantity or percentage of any Company Product or of goods relating to any Company Product (including inputs or components thereof) or has agreed to purchase goods relating to any Company Product exclusively or semi-exclusively from a certain party, or (B) that is with any Person which is a supplier to the Company, or any of its Affiliates, or any of its or their contract manufacturers (regardless of tier) of (x) material tangible products or services relating to any Company Product, or (y) products or services relating to any Company Product that are not otherwise readily commercially available from another source for a substantially similar cost with substantially similar quality;
(vii) any stockholders’, investor rights, registration rights, or similar Contract, or any Contract relating to the Acquired Assets or the Development, manufacture, or Commercialization exercise of any Compound or Product, including the conduct voting rights in respect of any clinical trialsCompany Securities;
(Bviii) any Contract containing covenants prohibiting “most favored nation” or limiting the similar preferential pricing provisions, any exclusive dealing arrangement or any arrangement that grants any right to compete of first refusal, first offer, first negotiation or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areasimilar preferential right;
(Cix) any Contract granting most favored nation that obligates the Company (together with its Subsidiaries) to make aggregate payments in excess of (A) $350,000 in the current or exclusive rights relating to any Compound future calendar year or Product to any other Person(B) $1,000,000 in the aggregate;
(Dx) any Contract with any supplier of material inputs used in the manufacture of the Company Products and any contract manufacturer involved in the manufacture of the Company Products;
(xi) any Contract (A) for the disposition of all, or any significant portion of, the assets (including any Intellectual Property Rights or business of the Company or any of its Subsidiaries, other than Ordinary Course Licenses), (B) for the acquisition of, directly or indirectly, a material portion of the assets (including any Intellectual Property Rights) or business of any other Person (whether by merger, sale of stock or assets or otherwise) or (C) related to any acquisition or divestiture and that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations);
(xii) any Contract pursuant to which Seller has obtained the Company or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of its Subsidiaries has continuing obligations or interests involving the following entered into in payment of royalties or other amounts calculated based upon the Ordinary Course revenues or income of Business andthe Company or any of its Subsidiaries or any other material contingent payment obligations or interests, in each case, case that are is not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in terminable by the Acquired Assets for the sole purpose of a service provider performing services for Company or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesits Subsidiaries without penalty without more than 60 days’ notice;
(Exiii) any Lease;
(xiv) any Contract under which Seller pays that provides for indemnification of any current or receives milestone or royalty payments relating to any Compound or Product or any Product IPformer Service Provider;
(Fxv) any Contract relating to indebtedness for borrowed money any guarantees thereof or the creation granting of Liens on any Acquired Assets over the property or the guarantee assets of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates in settlement of any Legal Proceeding or Subsidiaries, other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialsthan Permitted Liens;
(Hxvi) any Contract that limits Seller’s ability relating to make generally available any versions loan or other extension of any Compound credit made by the Company or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. its Subsidiaries (other than local representative agreements and legal representative agreements to the Company or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support servicesany of its Subsidiaries, and non-physician advisory board participants (i.e. nurse advisorsother than investments in marketable securities or advances to Service Providers in the ordinary course of business);
(Jxvii) any Contract for containing any provision or covenant limiting in any material respect the developmentability of the Company or any of its Subsidiaries (or, manufactureafter the consummation of the Merger, supplyParent, packagingthe Surviving Corporation or any of their respective Subsidiaries) to (A) Exploit any products or services of or to any other Person or in any geographic region, labeling, distribution, analytical testing(B) engage in any line of business or (C) compete with or to obtain products or services from any Person, or storage limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries (or, after the consummation of the active pharmaceutical ingredients and other raw materials for Merger, Parent, the Surviving Corporation or any Compound or Product, and related quality agreementsof their respective Subsidiaries);
(Kxviii) any Contract for requiring the ongoing Company, or planned analytical testing any successor thereto or storage acquirer thereof, to make any payment, whether on the account of biological specimens collected from subjects participating in clinical trials severance or otherwise, to another Person as a result of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization a change of any Compound or Product;
(M) any Contract for the maintenance control of the safety database for Company, or that gives a Third Party a right to receive or elect to receive any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionssuch payment; and
(Oxix) any other Contract that “material contract” (as such term is material to the Development, manufacture or sale defined in Item 601(b)(10) of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceRegulation S-K).
(iib) All The Company has made available to Parent a true and complete copy of each Material Contract. Except as has not had, and would not reasonably be expected to have a Company Material Adverse Effect, each of the Material Contracts are valid and Unscheduled Contracts is valid, binding agreements of Seller, and in full force and effect and is enforceable in accordance with their termsits terms by the Company or its applicable Subsidiary party thereto, subject to the Enforceability ExceptionExceptions. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any other party to a Material Contracts Contract or Nondisclosure Agreementsan Unscheduled Contract has breached or violated in any material respect any provision of, and no event has occurred that or taken or failed to take any act which, with notice or without notice, lapse of time, time or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default under the provisions of such Material Contract or Unscheduled Contract, and no event neither the Company nor any of its Subsidiaries has occurred received notice that with notice it has breached, violated or lapse of time, or both, would constitute a defaulted in any material default by such other party respect under any such Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementUnscheduled Contract.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Astria Therapeutics, Inc.), Merger Agreement (Biocryst Pharmaceuticals Inc)
Material Contracts. (ia) Section 5.1(i)(iSchedule 3.14(a) of the Disclosure Schedules sets forth a true and accurate list of Schedule lists each following Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liabilityx) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Purchased Assets is bound or affected or (y) to which Seller, or its applicable Affiliate, is a party and is used with respect to the Business or the Purchased Assets:
(i) any Contract involving aggregate consideration in excess of $1,000,000 or requiring performance by any party more than one (1) year from the following categories date hereof;
(ii) any Contract that relates to the “Material Contracts”):sale, license or lease of any of the Purchased Assets;
(iii) any Contract with (A) any Contract establishing a joint venture Business Customer or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaBusiness Supplier;
(Civ) any Contract granting providing for any non-competition, non-solicitation, exclusive dealing, grants of exclusive rights, or prohibiting Seller or Purchaser (after the Closing) from freely engaging in business or otherwise including provisions on joint price-fixing, “most favored nation nation”, pricing limitations, required discounts, rights of first refusal, right of first offer, market or exclusive rights relating to any Compound customer sharing, exclusivity or Product to any other Personmarket classification;
(Dv) any Labor Agreement;
(vi) any Contract pursuant to with an Identified Employee;
(vii) any Contract not executed in the ordinary course of business, not consistent with fair market terms, conditions and prices or with applicable Laws or otherwise not made on arm’s length terms and conditions;
(viii) any Contract in which Seller has obtained agreed to purchase, “take or granted any Intellectual Property Rights included in the Acquired Assets (pay,” minimum commitments, volume requirements or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce similar obligations or assert, including any existing license agreement relating to any Compound supply a minimum quantity of goods or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesservices;
(Eix) any Contract under which Seller pays with an uncapped guaranty, liability or receives milestone or royalty payments relating indemnification for any product related to any Compound or Product or any Product IPthe Business;
(Fx) any Government Contract;
(xi) any Contract that could prohibit or delay the consummation of the transactions contemplated hereby;
(xii) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;Assumed Liability; and
(Gxiii) any Contract entered into by between or among Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to on the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, one hand and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any Affiliate of Seller on the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancehand.
(iib) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered performed in all material respects all obligations required to Purchaser a correct be performed by it and complete copy of each written Material Contract. Seller is not in material default under or in breach or material default of nor in receipt of any claim of the default or breach under any Material Contracts or Nondisclosure AgreementsContract, and no event has occurred that which with the passage of time or the giving of notice or lapse both would result in a default, breach or event of time, or both, would constitute a material default noncompliance by Seller or, to the Knowledge of Seller, any other party under any such Material Contract. To the Knowledge of Seller, no each other party to a each such Contract has performed in all material respects all obligations required to be performed by it under such Contract. Each Material Contract (i) is in material breach or material default of such Material Contract legal, valid, binding and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orenforceable against Seller and, to the Knowledge of Seller, otherwise provided notice of its intention against each other party to repudiate any provision of a Material such Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (Bii) Seller will continue to be legal, valid, binding and enforceable on identical terms as of immediately after the Closing. Purchaser has been supplied with a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate correct and complete list copy of each Material Contract, together with all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereofamendments, waivers or other changes thereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Maxeon Solar Technologies, Ltd.), Asset Purchase Agreement (Complete Solaria, Inc.)
Material Contracts. (ia) All Contracts required to be filed as exhibits to the AmSurg SEC Documents have been so filed in a timely manner. Section 5.1(i)(i3.16(a) of the AmSurg Disclosure Schedules Schedule sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect complete list, as of the date hereof, of this Agreement each of the following Contracts to which Seller AmSurg or any of its Subsidiaries is a party or which was entered into by or on behalf of Seller, or by which AmSurg or any of the Acquired Assets is its Subsidiaries or any of their assets or businesses are bound in the following categories (the “Material Contracts”and any amendments, supplements and modifications thereto):
(Ai) any Contract establishing that is a joint venture “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) any Contract that materially limits the ability of AmSurg or any of its affiliates (including, following the consummation of the Transactions, New Amethyst and its affiliates) to compete or provide services in any line of business or with any Person or in any geographic area or market segment or to engage in any type of business (including any license, collaboration, coagency or distribution agreements);
(iii) any Contract required to be disclosed pursuant to Item 404 of Regulation S-promotion K of the Exchange Act;
(iv) any Contract or like arrangementseries of related Contracts relating to indebtedness for borrowed money (A) in excess of $1 million or (B) that becomes due and payable as a result of the Transactions;
(v) any license, sublicense, option, development or collaboration agreement or other Contract relating to AmSurg Material Intellectual Property reasonably expected to result in aggregate payments in excess of $1 million after the Closing Date (excluding license agreements for “shrink-wrap,” “click-wrap” or other commercially available off-the-shelf software that is not the subject of a negotiated agreement, and excluding agreements the primary purpose of which is to purchase tangible goods or procure services unrelated to Intellectual Property and in the ordinary course of business);
(vi) any Contract that is material to the business of AmSurg and its Subsidiaries, taken as a whole, that provides for any “most favored nation” provision or equivalent preferential pricing terms or similar obligations to which AmSurg or any of its Subsidiaries is subject;
(vii) any purchase, sale or supply contract that contains volume requirements or commitments, exclusive or preferred purchasing arrangements or promotional requirements reasonably expected to result in payments in excess of $4 million in any twelve (12) month period after the Closing Date;
(viii) any lease, sublease, occupancy agreement or other Contract with respect to the AmSurg Leased Real Property reasonably expected to result in payments in excess of $1 million in any twelve (12) month period after the Closing Date;
(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 AmSurg or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses (in any case in excess of $10 million);
(x) any acquisition or divestiture agreement (A) entered into since January 1, 2013 with a purchase price in excess of $25 million or (B) that contains “earn-out” provisions or other contingent payment obligations that could reasonably be expected to exceed $5 million for any such Contract individually or $25 million in the aggregate (including indemnification obligations) that have not been satisfied in full;
(xi) any agreement that by its terms limits the payment of dividends or other distributions by AmSurg or any of its Subsidiaries;
(xii) any Contract for any joint venture, partnership or similar arrangement (in each case, other than any Affiliated Medical Group), or any Contract involving a sharing with another Person of revenues, profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person liabilities by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller AmSurg or any of its Affiliates Subsidiaries with any other Person involving a potential combined commitment or payment by AmSurg and any of its Subsidiaries in settlement excess of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials$5 million annually;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nxiii) any Contract with any Governmental Authority relating Entity that is reasonably expected to any Compound or Product result in (x) the payment by AmSurg or any of its Subsidiaries of an amount in excess of $30 million per annum or (y) the Acquired Assetsreceipt by AmSurg or any of its Subsidiaries of an amount in excess of $30 million per annum;
(xiv) any Contract between any of AmSurg or any of its Subsidiaries, on the one hand, and a health system, hospital or ambulatory surgery center, on the other hand, pursuant to which AmSurg or its Subsidiaries generated revenues through billing of third parties, revenue guarantees or subsidy payments in excess of $20 million in the year ended December 31, 2015;
(xv) any Contract between any of AmSurg or any of its Subsidiaries, on one hand, and a third party payor (including any Governmental Program and any Private Program), on the other hand, pursuant to which AmSurg or its Subsidiaries received payments in excess of $20 million in the year ended December 31, 2015;
(xvi) any Contract providing for an outstanding or potential future loan or other extension of credit by AmSurg or any of its Subsidiaries (other than clinical trial agreements (A) payroll advances to employees and related ancillary agreements physicians in the ordinary course of business to any individual employee or physician and (B) the extension of trade credit to customers and suppliers in the ordinary course of business consistent with public institutionspast practice);
(xvii) any Contract between any of AmSurg or any of its Subsidiaries, on the one hand, and a third party payor (including any Governmental Program and any Private Program), on the other hand, that applies to AmSurg or any of its Subsidiaries on a national or statewide basis; and
(Oxviii) any other Contract that is material agreement which would prohibit or delay beyond the Outside Date the consummation of the Mergers or any other Transaction contemplated by this Agreement.
(b) AmSurg has heretofore made available to Holdings true, correct and complete copies of the DevelopmentContracts set forth in Section 3.16(a).
(c) Except as has not had and would not reasonably be expected to have, manufacture individually or sale of any Compound or Productin the aggregate, in each casean AmSurg Material Adverse Effect, as currently conducted by Seller, other than any Contract relating to (i) real property, (iiall Contracts set forth or required to be set forth in Section 3.16(a) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the AmSurg Disclosure Schedule or filed or required to be filed as exhibits to the AmSurg SEC Documents (the “AmSurg Material Contracts Contracts”) are valid valid, binding and binding agreements of Seller, in full force and effect and are enforceable by AmSurg or its applicable Subsidiary in accordance with their terms, subject except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) AmSurg, or its applicable Subsidiary, has performed all obligations required to be performed by it under the Enforceability Exception. Other than AmSurg Material Contracts entered into on behalf of SellerContracts, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller it is not in material breach (with or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with without notice or lapse of time, or both) in breach or default thereunder and, would constitute a material default by Seller under any Material Contract. To to the Knowledge of SellerAmSurg, no other party to a any AmSurg Material Contract is in material breach (with or material default of such Material Contract and no event has occurred that with without notice or lapse of time, or both) in breach or default thereunder, would constitute a material default by such other party under (iii) since January 1, 2013, neither AmSurg nor any Material Contract or Nondisclosure Agreement. No party of its Subsidiaries has repudiated in writing or, to the Knowledge of Seller, otherwise provided received written notice of its intention to repudiate any provision of a Material Contract actual, alleged, possible or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material potential violation or breach of, or default underfailure to comply with, any term or requirement of any AmSurg Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepaymentsContract, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) neither AmSurg nor any of its Subsidiaries has received any written notice of the Disclosure Schedules sets forth an accurate and complete list intention of all outstanding accrued trade payables any party to cancel, terminate, change the scope of rights under the Acquired Business Contracts as of the date hereofor fail to renew any AmSurg Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Envision Healthcare Holdings, Inc.), Merger Agreement (Amsurg Corp)
Material Contracts. (a) Except for any Company Benefit Plan and those agreements and other documents filed as exhibits or incorporated by reference to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2024 or filed or incorporated in any Company SEC Reports filed since January 1, 2022 and prior to the date hereof, neither the Company nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (each, whether or not filed with the SEC, a “Material Contract”):
(i) Section 5.1(i)(ithat is a “material contract” within the meaning of Item 601(b)(10) of the Disclosure Schedules sets forth SEC’s Regulation S-K;
(ii) that contains a true and accurate list provision, including (but not limited to) a non-compete or client or customer non-solicit requirement or an exclusivity or exclusive dealing provision, in each case that materially restricts the conduct of, or the manner or location of each Contract conducting, any line of business of the Company or any of its Subsidiaries (or, upon consummation of the Mergers, of the Surviving Entity or any of its Subsidiaries) (excluding customary non-solicitation covenants contained in vendor agreements entered into in the ordinary course);
(iii) that (A) relates to the incurrence of indebtedness by the Company or any of its Subsidiaries (other than purchase orders issued deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with past practice) including any sale and leaseback transactions, capitalized leases and other similar financing transactions or (B) provides for the guarantee, support, assumption or endorsement by Seller the Company or any of the Company’s Subsidiaries of, or any similar commitment by the Company or any of the Company’s Subsidiaries with respect to, the obligations, liabilities or indebtedness of any other Person, in each case of clauses (A) and (B), in an outstanding principal amount of $15,000,000 or more;
(iv) that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any of its Subsidiaries;
(v) that relates to a Third Party joint venture, partnership, limited liability company agreement or other similar agreement or arrangement with any third party (excluding Community Reinvestment Act investments);
(vi) that relates to an acquisition, divestiture, merger or similar transaction and under which the Company or any of its Subsidiaries is subject to any material covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are ancillary still in effect;
(vii) that under which any of the benefits of or obligations will arise or be increased or accelerated by the occurrence of the execution and delivery of this Agreement, receipt of the Company Stockholder Approval or the announcement or consummation of any of the transactions contemplated by this Agreement, or under which a right of cancellation or termination will arise as a result thereof, 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, where such increase or acceleration of benefits, right of cancellation or termination or change in the calculation of value of benefits would, either individually or in the aggregate, reasonably be expected to another written have a Material Adverse Effect on the Company;
(viii) that provides for material indemnification by the Company or any of its Subsidiaries of any Person, except (A) for contracts entered into in the ordinary course of business and (B) as provided by the governing documents of the Company and its Subsidiaries;
(ix) that creates future payment obligations from the Company or any of its Subsidiaries in excess of $1,000,000 per annum (other than (A) any such contracts which are terminable by the Company or any of its Subsidiaries on sixty (60) days, or less notice without any required payment or other conditions, other than the condition of notice, (B) extensions of credit, (C) other customary banking products offered by the Company or its Subsidiaries or (D) derivatives issued or entered into in the ordinary course of business);
(x) that grants to a Person any right, license, covenant not to sue or other right in Company Owned Intellectual Property (excluding (A) non-exclusive licenses, covenants not to sue or similar rights granted in the ordinary course and (B) employee agreements and contractor agreements that are consistent in all material respects with form agreements made available to Parent) or grants to the Company or any of its Subsidiaries a license, covenant not to sue or other right to any Intellectual Property (excluding employee agreements and contractor agreements that are consistent in all material respects with form agreements made available to Parent and licenses to shrink-wrap or click-wrap Software), in each case of this clause (x), that is material to the conduct of the businesses of the Company;
(xi) that provides for the sale of Personal Information, or the transfer of Personal Information for marketing purposes, by or on behalf of the Company or any of its Subsidiaries to any third party, in each case of this clause (xi), where the sale or transfer of Personal Information is material to the conduct of the businesses of the Company and its Subsidiaries, taken as a whole;
(xii) to which any officer, director, or employee of the Company or any of its Subsidiaries is a party or beneficiary (except with respect to loans to, or deposit or asset management accounts of, directors, officers and employees entered into in the ordinary course of business or with respect to routine banking relationships, compensation, business expense advancements, or reimbursements); or
(xiii) that is between the Company or any of its Subsidiaries and any Person beneficially owning five percent (5%) or more of the outstanding Company Common Stock.
(b) The Company has made available to Parent prior to the date hereof true, correct and complete copies of each Material Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement hereof.
(c) In each case, except as would not, either individually or in the aggregate, reasonably be expected to which Seller have a Material Adverse Effect on the Company, (i) each Material Contract is a party valid and legally binding agreement of the Company or which was entered into one of its Subsidiaries, as applicable, and to the Knowledge of the Company, the counterparty or counterparties thereto, is enforceable in accordance with its terms (subject to the Bankruptcy and Equity Exception) and is in full force and effect, (ii) the Company and each of its Subsidiaries has duly performed all obligations required to be performed by or on behalf of Sellerit prior to the date hereof under each Material Contract, or by which (iii) neither the Company nor any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaborationits Subsidiaries, co-promotion or like arrangementand, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets Knowledge of the Company, any counterparty or the Developmentcounterparties, manufacture, or Commercialization is in breach of any Compound or Product, including the conduct provision of any clinical trials;
Material Contract, and (Biv) to the Knowledge of the Company, no event or condition exists that constitutes, after notice or lapse of time or both, will constitute, a breach, violation or default on the part of the Company or any of its Subsidiaries under any such Material Contract containing covenants prohibiting or limiting provide any party thereto with the right to compete or engage in any aspect terminate such Material Contract. Section 3.16(c) of the Product Operations or prohibiting or restricting Seller’s ability to conduct Company Disclosure Schedule sets forth a true and complete list as of the Product Operations with any Person or in any geographical area;
date hereof of (Cx) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract all Material Contracts pursuant to which Seller has obtained consents or granted any Intellectual Property Rights included in the Acquired Assets waivers are or may be required and (or that would have been included in the Acquired Assets but for such Contract), including any covenant not y) all notices which are required to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andbe given, in each case, that are not Acquired Business Contracts prior to the performance by the Company of this Agreement and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as consummation of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; Merger, the Second Step Merger, the Bank Merger and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancetransactions contemplated hereby.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Premier Bancorp Inc), Merger Agreement (Columbia Banking System, Inc.)
Material Contracts. (i) Section 5.1(i)(i) On or prior to the date hereof, the Seller has delivered to the Purchaser, a true, complete and correct list of all of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement following Contracts to which Seller either USP or Renown is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is their respective property or assets are bound in the following categories (collectively, the “Material Contracts”):
): (Aa) Contracts with the Seller, any Contract establishing Affiliate or any current or former officer or director of the Seller, Renown or USP under which the Seller, Renown or USP, as the case may be, have any continuing liabilities or obligations; (b) Contracts pursuant to which any party is required to purchase or sell a joint venture stated portion of its requirements or collaborationoutput from or to another party; (c) purchaser orders involving the performance by USP or Renown of services for or delivery by USP or Renown of goods or materials to any Person other than an Affiliate of USP or Renown (which Affiliate purchase orders are disclosed on Schedule 3.27) where the remaining amount of the payments or value of the consideration to be received by USP or Renown from any such Person exceeds $100,000; (d) purchase orders involving the procurement by USP or Renown of materials, co-promotion goods or like arrangementservices from any Person who is not an Affiliate of USP or Renown (which Affiliate purchase orders involving procurement are disclosed on Schedule 3.27) where the amount of the remaining payments to or value of the consideration to be paid or delivered by USP or Renown for such materials goods or services exceeds $100,000; (e) Contracts for the sale of any assets of USP or Renown other than in the Ordinary Course of Business; (f) Contracts containing covenants of USP or Renown not to compete in any line of business or with any other Person in any geographical area or containing similar covenants from any other Person (other than between an Employee and either USP or Renown) for the benefit of USP or Renown; (g) Contracts containing any obligation of confidentiality or nondisclosure between either USP or Renown and any other Person (other than between an Employee and either USP or Renown) for the benefit of either USP or Renown or such other Person; (h) Contracts relating to the borrowing of money, including indebtedness under capital leases, bonds and letters of credit; (i) Contracts with current or former employees, consultants, or contractors regarding the ownership, use, protection, or nondisclosure of any of the Intellectual Property of USP or Renown; (j) Contracts with any labor union or other employee representative of a group of employees relating to wages, hours, or other conditions of employment; (k) Contracts involving any joint venture, partnership, or limited liability company agreement involving a sharing with another Person of profits, losses, costs, royalties, milestone paymentsTaxes, or Liabilities of Seller relating to the Acquired Assets other liabilities by either USP or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations Renown with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;; (l) Contracts containing any effective power of attorney granted by either USP or Renown; (m) Contracts involving the settlement, release, compromise, or waiver of any material rights, claims, obligations, duties or liabilities; (n) any Contracts other than those disclosed in clauses (a) through (m) above that: (i) involve, individually, the expenditure by USP or Renown of more than $100,000 annually, (ii) are not cancelable upon 30 or fewer days notice without any liability or (iii) require performance by any party more than one year from the date hereof; (o) Contracts (other than purchase orders of Contracts disclosed in clauses (c) and (d) above) that provide for the receipt of payment by USP or Renown of $100,000 or more annually; (p) Contracts requiring USP or Renown to pay, perform, discharge or otherwise guarantee any debt or obligation of any Person; (q) Contracts relating to ownership of equity interests in any Person, other than an Affiliate, by any of Seller, Renown or USP; (r) Contracts containing any provisions that are contingent upon the occurrence of or prohibit any change in ownership of USP or Renown; and (s) Contracts (other than those disclosed in clauses
(Da) any Contract pursuant through (r) above) that: (i) are material to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets Business (or that would have been included in the Acquired Assets but including Contracts for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations employment and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations with sales representatives) and either (ii) were entered into other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure AgreementsBusiness; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses are to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, be performed other than any of the following entered into in the Ordinary Course of Business andBusiness. Except as set forth on Schedule 3.13, in each case that are not Acquired Business Contracts and are deemed Excluded LiabilitiesMaterial Contract: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorneyis legal, letters of delegationvalid, declarations binding and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditorsenforceable, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their its terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to rules of Sellerlaw governing specific performance, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreementsinjunctive relief, and no event has occurred that with notice to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or lapse of timein equity) and (ii) is in full force and effect. Unless otherwise stated in Schedule 3.13, or both, would constitute a material neither USP nor Renown is in default by Seller in any respect under any Material Contract. To Contract and, to the Knowledge knowledge of the Seller, no other party to a Material Contract is in material breach or material default under the terms of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure AgreementContract. No party has repudiated in writing or, Prior to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities true, correct and complete copies of Seller relating all Material Contracts have been provided to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000Purchaser.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gibraltar Industries, Inc.)
Material Contracts. (a) Section 5.09 of the Companies’ Disclosure Schedule contains a list of all Company Contracts referred to in clauses (i) through (xix), inclusive, of this Section 5.1(i)(i5.09(a) (each Company Contract required to be disclosed hereunder, a “Material Contract” and, collectively, the “Material Contracts”), complete and accurate copies of which have been made available to Buyer:
(i) any lease (whether of real or personal property) providing for annual rentals of $10,000 or more;
(ii) any agreement for the purchase of materials, supplies, goods, services, development, equipment or other assets providing for aggregate payments by any of the Companies of $10,000 or more;
(iii) any sales, partnering, development or other similar agreement providing for the sale by any of the Companies of products, services or other assets that provides for aggregate payments to the Companies of $10,000 or more;
(iv) any partnership, joint venture or other similar Contract;
(v) any Company Contract relating to the acquisition or disposition of any Person or business (whether by merger, sale of stock, sale of assets or otherwise);
(vi) any Company Contract relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, including any guarantees of such indebtedness), except any such agreement with an aggregate outstanding principal amount not exceeding $10,000 and which may be prepaid on not more than 30 calendar days’ notice without the payment of any penalty;
(vii) any Company Contract (A) under which any of the Companies has granted or has obtained an option to purchase or acquire, or a right of first refusal or right of first negotiation with respect to the purchase or acquisition of any assets, franchise or similar agreement, (B) pursuant to which any Person has licensed, sublicensed, granted, assigned or conveyed to any of the Companies any right (whether or not currently exercisable), title or interest in any Intellectual Property Rights including any option to obtain any of the foregoing (other than licenses for commercially available software that has not been modified or customized for any of the Companies) (collectively, “Inbound Licenses”) or (C) pursuant to which one of the Companies has licensed, sublicensed, granted, assigned or conveyed to any Person any right (whether or not currently exercisable), title or interest in, any Intellectual Property Rights including any option to obtain any of the foregoing (collectively, “Outbound Licenses”);
(viii) any Company Contract that constitutes an agency, dealer, sales representative, distribution, marketing or other similar Contract;
(ix) any Company Contract that (A) limits the freedom of any of the Companies to compete in any line of business or against any Person or in any area, solicit any customer of any Person, acquire any product or other asset or any services from any other Person or which would so limit the freedom of any of the Companies after the Closing Date; (B) provides for pricing or other contract terms on a “most favored nations” or similar basis or grants exclusive rights to any customer; (C) that requires an exclusive relationship between any of the Companies and any other Person; or (D) requires any of the Companies to purchase all or substantially all of its requirements for a product or service or a component thereof from a specified supplier;
(x) any Company Contract that obligates (including through the use of diligent or commercially reasonable efforts or similar undertaking) any of the Companies to develop and/or commercialize or manufacture any product or service, or to transfer any marketing authorization held by any of the Companies;
(xi) any Company Contract pursuant to which any of the Companies (A) is obligated to make payments to any other Person based upon sales, revenues or profits, or any development, regulatory or commercial or other events, with respect to any Product; or (B) is obligated to provide to any other Person an interest in the sales, profits or revenues of any Product.;
(xii) any Company Contract with (A) any Seller or between any Company and an Affiliate, (B) any Person, 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by any Seller, or (C) any director or officer of any of the Companies or any of their respective Affiliates or any “associates” or members of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such director or officer;
(xiii) any indemnification agreements, other than in connection with commercial transactions in the Ordinary Course of Business;
(xiv) any Company Contract with a Governmental Authority;
(xv) powers of attorney from any of the Companies;
(xvi) any other Company Contract not otherwise described in clauses (i) — (xv) above pursuant to which any of the Companies is obligated to make payments or incur costs in excess of $10,000 in any year; or
(xvii) any other Company Contract or group of other Company Contracts with a Person (or group of affiliated Persons) not otherwise described in clauses (i) — (xvi) above, the breach or termination of which would reasonably be expected to have or result in a Material Adverse Effect.
(i) Each Material Contract is a valid, binding and in full force and effect and is enforceable, in each case, in all material respects, in accordance with its terms against the applicable Company and, to the Knowledge of the Company, each other party thereto, in each case, except as such validity, binding effect or enforceability may be limited by (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Applicable Laws affecting the enforcement of creditors’ rights and (B) general rules of equity, and is in full force and effect; (ii) neither the applicable Company, to the Knowledge of the Companies, any other party thereto, is in default or breach in any material respect under the terms of any such Material Contract; (iii) to the Knowledge of the Companies, no event or circumstance has occurred that, with notice or lapse of time or both, would reasonably be expected to (1) constitute any event of material default under any Material Contract; (2) give any Person the right to declare a material default or exercise any material remedy under any Material Contract, (3) give any Person the right to accelerate the maturity or performance of any Material Contract, or (4) give any Person the right to cancel, terminate or modify any Material Contract; (iv) no Company has received any written notice or other written communication regarding any actual or alleged material violation or material breach of, or material default under, any Material Contract; (v) no Company has waived any of its respective material rights under any Material Contract; (vi) no Company is participating in any active discussions to amend the terms of any Material Contract other than in the Ordinary Course of Business; (vii) no Person has given written notice of its desire to renegotiate any amounts paid or payable to any of the Companies under any Material Contract or any other material term or provision of any Material Contract; and (viii) no Person has threatened in writing to terminate or refuse to perform its obligations under any Material Contract. Complete and accurate copies of each Material Contract have been made available to Buyer.
(c) Section 5.09(c) of the Companies’ Disclosure Schedules Schedule sets forth a true and accurate list the names of each Contract (other partners, service provider, supplier or customers to whom any of the Companies paid or received greater than purchase orders issued by Seller $50,000 in respect of services, products or materials provided to a Third Party or from the Companies during the year ended December 31, 2013 and during the three-months ended March 31, 2014. Since December 31, 2013, none of the partners, service providers, suppliers or customers listed in Section 5.09(c) of the Companies’ Disclosure Schedule has notified either of the Companies that are ancillary to another written Contract it is canceling, materially reducing or otherwise terminating its business with the same Third Party Companies or that it is rejecting any purchase order submitted by any Company or that it intends to cancel, reduce or otherwise terminate its relationship with the Companies or to reject any purchase order that has been or will be submitted by any Company.
(d) No Company Contracts of the type referred to in clauses (i) and (ii) below are effective or binding on any Company as of the Closing Date and no such Company Contracts are being negotiated by any Company as of the Closing Date:
(i) Company Contracts that do not constitute an Assumed Liabilitylimit the freedom of any of the Companies to (A) develop, manufacture, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person or (B) perform services for any Person; and
(ii) Company Contracts pursuant to which any of the Companies is obligated to supply any Product in effect each case whether as of the date of this Agreement or as of a future date, including upon the occurrence of any future event.
(e) Under the License Agreement by and among Emory University (“Emory”), Georgia Tech Research Corporation (“GTRC”) and ACL, dated October 8, 2010 (the “Emory/GTRC License Agreement”), neither Emory nor GTRC nor any Inventor (as such term is defined in the Emory/GTRC License Agreement) has provided any Company with any notice of any Improvement (as such term is defined in the Emory/GTRC License Agreement).
(f) Under the Emory/GTRC License Agreement, (i) to which Seller is a party the Companies’ Knowledge, none of the Intellectual Property Rights licensed by Emory and/or GTRC to ACL were generated, conceived or which was entered into by reduced to practice using government funding and (ii) none of the Companies has ever received any written notice or on behalf of Seller, or by which other communication from any Person asserting that any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights licensed by Emory and/or GTRC to ACL were generated, conceived or reduced to practice using government funding.
(g) All data and know-how generated by GTRC using funds received from the Georgia Research Alliance VentureLab Award dated July 16, 2012 (for Project No. GRA.VL13.B2) are included in within the Acquired Assets scope of the license granted from Emory and GTRC to ACL pursuant to the Emory/GTRC License Agreement.
(h) No patentable inventions were generated, conceived or that would have been included in reduced to practice by the Acquired Assets but for such Contract), including any covenant not University of Louisville pursuant to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any either of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilitiesagreements: (i) Nondisclosure Agreements; the Services Agreement between the University of Louisville and ACL, dated April 2, 2013 and (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for Services Agreement between the sole purpose University of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators Louisville and clinical sites for the conduct of a clinical studyAPK, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employeesdated April 12, including proprietary information and invention assignment agreements with employees;2013.
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside None of the U.S. (other than local representative agreements Companies has experienced any material supply problems relating to obtaining supply of Products or materials and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; components used in and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit mattersProducts, including any Employee Benefit Plannonconformance of supplied Products, (iii) indebtednessmaterials or components with the applicable specifications, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expensesfailure to timely supply such Products materials or components, or (v) insuranceany rejected purchase orders for such Products, materials or components.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (ia) Section 5.1(i)(i) of the Disclosure Schedules sets forth Schedule 3.9 contains a true complete and accurate list of each Contract all of the following (whether written or oral) which relate primarily to the Business or by which the Purchased Assets may be bound or affected:
(i) contracts between Seller and any stockholder, director, officer or employee or other Affiliates of Seller or its Affiliates;
(ii) employment, collective bargaining, severance, stay bonuses, retention, consulting, employee benefit and similar plans and agreements involving a Business Employee;
(iii) marketing, agency, advertising, sales representative, broker, development, manufacturing, marketing, sales, distribution, fulfillment or similar contracts that require the expenditure of, or involve the receipt of, more than $25,000 in any consecutive twelve month period after the date hereof;
(iv) contracts under which the amount payable by Seller with respect to the Business is dependent on the revenues or income or similar measure of or in which Seller is obligated to pay royalties, commissions or similar payments to any person or entity;
(v) pledges, security agreements, sale/leaseback arrangements and equipment leases (other than purchase orders issued by Seller leases for copy machines, postage machines and fax machines) with respect to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as any of the date of this Agreement Purchased Assets;
(vi) agreements, contracts or instruments to which Seller is party relating to the borrowing of money, the capital lease or purchase on an installment basis of any asset, or the guarantee of any of the foregoing, if any of the foregoing has or could create a party security interest, lien or other encumbrance on the Purchased Assets;
(vii) contracts with any person or entity which was entered into by or on behalf purport to restrict business activities of Seller, including without limitation any covenant not to compete or by any contracts imposing exclusive dealing obligations;
(viii) any leases, whether as lessor or lessee, whether for personal or real property;
(ix) any contract pursuant to which Seller has agreed to indemnify or hold harmless any Person or to pay liquidated damages of any kind;
(x) joint venture, partnership or similar agreements;
(xi) any other contracts, instruments, commitments, plans or arrangements of Seller and to which any of the Acquired Purchased Assets or the Business may be subject the value of which is bound in greater than or equal to $25,000 per annum;
(xii) the following categories Licenses; and
(xiii) to the extent not covered above, any other contract or agreement material to the Business.
(b) All of the foregoing are herein called the “Material Contracts”):
. Seller has furnished to Buyer copies of all Material Contracts (Aor written summaries, in the case of Material Contracts which are oral) and any Contract establishing a joint venture further information that Buyer has reasonably requested in connection therewith. Except as expressly indicated on Schedule 3.9, there have been no material amendments, modifications or collaboration, co-promotion supplemental arrangements to or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization in respect of any Compound or ProductMaterial Contract. Each of such Material Contracts is valid, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right binding and enforceable against Seller and, to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct knowledge, the Product Operations other parties thereto in accordance with any Person or its terms and is in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contractfull force and effect. Except as specifically identified on Schedule 1.1(b), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All none of the Material Contracts are valid is an Excluded Contract.
(c) Except as set forth on Schedule 3.9, there is no event which has occurred or existing condition (including without limitation the execution and binding agreements delivery of Seller, enforceable in accordance with their terms, subject to this Agreement and the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any consummation of the Material Contracts transactions contemplated hereby) which constitutes or Nondisclosure Agreementswhich, and no event has occurred that with notice notice, or lapse the passage of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material or breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract by Seller or Nondisclosure Agreement. No party has repudiated in writing or, to would cause the Knowledge acceleration of any obligation of Seller, otherwise provided notice give rise to any right of its intention to repudiate termination or cancellation by any provision party other than Seller or cause the creation of a Material Contract or Nondisclosure Agreementany Encumbrance on any of the Purchased Assets. Except as set forth on Schedule 3.9, Seller has not given received any written notice that it is in default or breach of or is otherwise delinquent in performance under any such Material Contracts, and, to or received from any Seller’s knowledge, each of the other Person any writtenparties thereto has performed in all material respects all obligations required to be performed by it under, or to the Knowledge of Seller other, notice regarding and is not in default in any material violation or breach of, or default respect under, any of such Material Contract or Nondisclosure AgreementContracts.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (ia) Section 5.1(i)(i4.17(a) of Alpha Disclosure Schedule lists, and Alpha has made available to Foundation prior to the Disclosure Schedules sets forth date of this Agreement, true, correct and complete copies of, any of the following Contracts to which Alpha or any of its Subsidiaries is a true and accurate list party or by which Alpha, any of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect its Subsidiaries or any of their respective assets is bound, as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):hereof:
(Ai) any Contract establishing that would be required to be filed by Alpha as a joint venture "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or collaboration, codisclosed by Alpha on a Current Report on Form 8-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsK;
(Bii) that contains covenants that limit the ability of Alpha or any Contract containing covenants prohibiting of its Subsidiaries (or limiting which, following the right consummation of the Merger, could restrict the ability of the Surviving Corporation or any of its Affiliates) to compete or engage in any aspect of the Product Operations business or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person person or in any geographical area;
(C) geographic area or distribution or sales channel, or to sell, supply or distribute any Contract granting most favored nation service or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andproduct, in each case, that are not Acquired Business Contracts could reasonably be expected to be material to the business of Alpha and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of its Subsidiaries, taken as a service provider performing services for or on behalf of Seller; whole;
(iii) agreements with clinical investigators and clinical sites for that relates to a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the conduct formation, creation, operation or control of any partnership or joint venture or similar entity or arrangement (other than any partnership or limited liability company operating agreement of a clinical study, direct or indirect wholly-owned Subsidiary of Alpha) or pursuant to which study is complete Alpha or substantially complete at the relevant clinical sites as any of the date its Subsidiaries has an obligation (contingent or otherwise) to make a material investment in or material extension of this Agreement; credit to any Person;
(iv) licenses that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including commodities, emissions allowances, renewable energy credits, currencies, interest rates, foreign currency and other indices, in each case, that is material to commercially available software or cloud or software the business of Alpha and its Subsidiaries, taken as a service agreements; and whole;
(v) assignment agreements that relates to (A) Indebtedness under which Alpha and/or any of its Subsidiaries has outstanding obligations in excess of $10,000,000 or (B) conditional or similar sale arrangements in connection with employees, including proprietary information which the aggregate actual or contingent obligations of Alpha and invention assignment agreements with employeesits Subsidiaries under such Contract are greater than $10,000,000;
(Evi) any Contract under which Seller pays (A) to the knowledge of Alpha, any Person has directly or receives milestone indirectly guaranteed any liabilities or royalty payments relating to obligations of Alpha or its Subsidiaries (other than any Compound such guarantees by Alpha or Product its Subsidiaries), in case of each such liability or obligation, in an amount in excess of $5,000,000, or (B) Alpha or any Product IP;
(F) of its Subsidiaries has directly or indirectly guaranteed any Contract relating to the creation of Liens on any Acquired Assets liabilities or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller other than Alpha or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorsSubsidiaries);
(Jvii) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, purchase and sale of coal under which (x) the aggregate amounts to be paid by Alpha and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $50,000,000 in any twelve-month period or storage (y) the aggregate amounts to be received by Alpha and its Subsidiaries over the remaining term of the active pharmaceutical ingredients and other raw materials for such Contract would reasonably be expected to exceed $50,000,000 in any Compound or Product, and related quality agreementstwelve-month period;
(Kviii) under which (x) the aggregate amounts to be paid by Alpha and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $10,000,000 in any twelve-month period or (y) the aggregate amounts to be received by Alpha and its Subsidiaries over the remaining term of such Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating would reasonably be expected to exceed $10,000,000 in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Producttwelve-month period, in each case, as currently conducted by Seller, other than any (1) the Alpha Material Contracts described in Section 4.17(a)(iv) or 4.17(a)(vii) and (2) purchase orders for the purchase of goods or services in the ordinary course of business;
(ix) that relates to an Alpha Interested Party Transaction; or
(x) that would or would reasonably be expected to prevent or materially delay Alpha's ability to consummate the Merger or the other transactions contemplated by this Agreement. Each Contract relating to of the type described in clauses (i) real property, through (iix) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceis referred to herein as an "Alpha Material Contract."
(iib) All of the Each Alpha Material Contracts are Contract is valid and binding agreements on Alpha and any Subsidiary of SellerAlpha that is a party thereto and, enforceable in accordance with their terms, subject to the Enforceability Exceptionknowledge of Alpha, each other party thereto and is in full force and effect. Other than There is no default under any Alpha Material Contracts entered into on behalf of Seller, Seller has made available Contract by Alpha or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of its Subsidiaries or, to the Material Contracts or Nondisclosure Agreementsknowledge of Alpha, by any other party, and no event has occurred that with the lapse of time or the giving of notice or lapse of time, or both, both would constitute a material default thereunder by Seller under Alpha or any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing its Subsidiaries or, to the Knowledge knowledge of SellerAlpha, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from by any other Person any writtenparty, in each case except as would not have or reasonably be expected to have, individually or in the Knowledge of Seller otheraggregate, notice regarding any material violation or breach of, or default under, any an Alpha Material Contract or Nondisclosure AgreementAdverse Effect.
(iiic) As Neither Alpha nor any of its Subsidiaries is party to any Contract that prohibits Alpha from providing to Foundation the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced information described in clause (BSection 5.4(c)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (ia) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as As of the date of this Agreement, other than Employee Plans (except for those Employee Plans specifically contemplated to be disclosed pursuant to Section 4.20(a)(i) below), neither the Company nor any of its Subsidiaries is a party to or bound by:
(i) any (A) Employment Agreement or Consulting Agreement (with the exception of (1) Employment Agreements and Consulting Agreements substantially on the Company’s standard forms and on the Company’s standard forms in all material respect and that are terminable at-will and without liability on the part of the Company and (2) any nondisclosure and assignment-of-rights agreement on substantially on the Company’s standard forms and on the Company’s standard forms in all material respect and that are terminable at-will and without liability on the part of the Company), (B) Contract the terms of which obligate or may in the future obligate the Company or any of its Subsidiaries to make any severance or termination to any Company Employee, or (C) that is a Collective Bargaining Agreement;
(ii) any Contract (A) that creates any partnership, joint venture, strategic alliance, or collaboration arrangement other than in the ordinary course of business consistent with past practices, (B) pursuant to which Seller any material research and development project for any Key Product is conducted or (C) comprises an arrangement similar to a Contract described in (A) or (B) above;
(iii) any Contract (excluding licenses for commercial off-the-shelf computer software that are generally available on nondiscriminatory pricing terms) to which the Company or any of its Subsidiaries is a party or otherwise bound and pursuant to which was entered into by the Company or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
its Subsidiaries (A) obtains the right to use, or a covenant not to be sued under, any Key IP or (B) grants the right to use, or a covenant not to be sued under, any Key IP, in each case, other than in the ordinary course of its business consistent with past practice;
(iv) any active Government Contract other than purchase order agreements;
(v) any Contract establishing with sole-source or single-source suppliers of material tangible goods or services or pursuant to which either the Company or any of its Subsidiaries has agreed to purchase a joint venture minimum quantity of goods in excess of $100,000 used for any Key Product or has agreed to purchase goods used for any Key Product on an exclusive basis from a Third Party;
(vi) any Contract (A) for the research, development, distribution, marketing, supply, license, collaboration, co-promotion or like arrangement, manufacturing of the Key Products or involving a sharing with another Person (B) that otherwise provides for the purchase or sale of profits, losses, costs, royalties, milestone payments, products or Liabilities services by the Company or any of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization its Subsidiaries in excess of any Compound or Product, including the conduct of any clinical trials$100,000;
(Bvii) any Contract containing covenants prohibiting stockholders, investors rights, registration rights, tax receivables or limiting the right to compete similar or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical arearelated Contract;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(Dviii) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates in settlement Subsidiaries grants to a Third Party any “most favored nation” or similar preferential pricing provisions, any exclusive dealing arrangement or any arrangement that grants any right of any Legal Proceeding first refusal, first offer, first negotiation or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialssimilar preferential right;
(Hix) any Contract (excluding Leases) (A) that limits Seller’s ability obligates the Company (together with its Subsidiaries) to make generally available aggregate payments in excess of (x) $100,000 in the current or any versions future calendar year or (y) $200,000 in the aggregate, (B) related to an acquisition or divestiture of any Compound assets that contains continuing representations, covenants, indemnities or Product developed by other obligations (including “earn out” or for Seller;
other contingent payment obligations) or (IC) any Contract for pursuant to which the research Company or Development of any Compound or Product, other than any of its Subsidiaries has continuing obligations or interests involving the following entered into in payment of royalties or other amounts calculated based upon the Ordinary Course revenues or income of Business andthe Company or any of its Subsidiaries or any other contingent payment obligations of the Company or any of its Subsidiaries, in each case that are is not Acquired Business Contracts terminable by the Company or its Subsidiaries without penalty without more than 60 days’ notice;
(x) any Contract that provides for indemnification of any current or former officer, director or employee of the Company or any of its Subsidiaries;
(xi) any Contract (A) for the disposition of all or any significant portion of the assets or business of the Company or any of its Subsidiaries or (B) for the acquisition, directly or indirectly, of a material portion of the assets or business of any other Third Party (whether by merger, sale of stock or assets or otherwise), in each case;
(xii) any Contract for indebtedness for borrowed money, any guarantees thereof or the granting of Liens over any material property or assets of the Company or any of its Subsidiaries;
(xiii) any Contract pursuant to which the Company or any of its Subsidiaries made any loan to a Third Party (excluding, for the purpose of clarity, a wholly owned Subsidiary of the Company), except for (1) advances to directors, officers and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations other employees for travel and similar instruments executed by Seller other business-related expenses incurred in connection with such person’s role at the regulatory Company or one of its Subsidiaries in accordance with the Company’s policies and ethics committee submissions in the ordinary course of business consistent with past practice, and data processing activities for clinical studies outside (2) product loans, leases, evaluation Contracts and the like entered into by the Company or one of its Subsidiaries in the ordinary course of business consistent with past practice;
(xiv) any Contract containing any provision or covenant limiting (1) in any material respect the ability of the U.S. Company or any of its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (A) sell any products or services of or to any other than local representative agreements and legal representative agreements Person or similar arrangements for local representation entered into in any geographic region, (B) engage in any line of business or (C) compete with a contract research organization or similar service provider); to obtain products or services from any Person, or (iii2) Nondisclosure Agreements; the ability of any Person to provide products or services to the Company or any of its Subsidiaries (iv) licenses to commercially available software or, after the consummation of the Merger, Parent, the Surviving Corporation or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorsany of their respective Subsidiaries);
(Jxv) any Contract for requiring the development, manufacture, supply, packaging, labeling, distribution, analytical testingCompany, or storage any successor thereto or acquirer thereof, to make any payment to another Person related to, in connection with, or as a result of a change of control of the active pharmaceutical ingredients and other raw materials for any Compound Company (a “Change of Control Payment”) or Product, and related quality agreementsthat gives a Third Party a right to receive or elect to receive a Change of Control Payment;
(Kxvi) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Productthat is a Company Outbound License;
(Lxvii) all Contracts pursuant to which a Third Party supplies the Company with any Contract for material component of a Key Product or the distributionCompany’s Single Molecule, promotion, marketing, reselling Real-Time (SMRT®) sequencing technology (or other Commercialization of any Compound or Productmaterial component thereof);
(Mxviii) any Contract for the maintenance “material contract” (as such term is defined in Item 601(b)(10) of the safety database for any Compound Regulation S-K) or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the DevelopmentCompany and its Subsidiaries, manufacture or sale of any Compound or Product, taken as a whole (it being understood that all such contracts listed in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject exhibit index to the Enforceability Exception. Other than Material Contracts entered into Company 10-K need not be listed on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv4.20(a)(xviii) of the Company Disclosure Schedules sets forth an accurate and complete list Schedule); or
(xix) any standstill or similar agreement with respect to any class of all outstanding accrued trade payables under the Acquired Business Contracts as equity securities of the date hereofCompany or any of its Subsidiaries (all Contracts of the type described in this Section 4.20(a) being referred to herein as “Material Contracts”).
Appears in 1 contract
Sources: Merger Agreement (Illumina Inc)
Material Contracts. (a) Except as disclosed in Section 5.16 of the Company Disclosure Memorandum or as disclosed in the Company SEC Reports, none of the Company Entities nor any of their respective Assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under:
(i) Section 5.1(i)(iany employment, severance, termination, consulting, or retirement Contract providing for aggregate payments to any Person in any calendar year in excess of $50,000, provided however, that this amount shall be $100,000 with respect to any Person employed by a German Company Entity;
(ii) any Contract relating to the borrowing of money by any Company Entity or the guarantee by any Company 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 Company Entity from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person;
(iv) any Contract between or among Company Entities, or between and among a Company Entity and an Affiliate of a Company Entity;
(v) any partnership, joint venture, strategic alliance or cooperation agreement (or any agreement similar to the foregoing);
(vi) any brokerage or finders fee agreements;
(vii) any license or sublicense of Owned Intellectual Property or Licensed Intellectual Property (other than Contracts entered into in the ordinary course with customers and "shrink-wrap" software licenses);
(viii) any Contract relating to the provision of data processing, network communication, or other technical services to or by any Company Entity;
(ix) any Contract relating to the purchase or sale of any goods or services by or to any Company Entity (other than Contracts entered into in the ordinary course of business and involving payments under any individual Contract not in excess of one percent (1%) of the Disclosure Schedules sets forth consolidated gross revenues for the Company for the year ended December 31, 2002;
(x) any contract for the purchase or sale of a true real property interest for which such sale or purchase is pending;
(xi) all contracts and accurate list agreements that by their terms provide indemnification rights or obligations of each any Company Entity, which provide for potential payments after the Effective Time to any Person in excess of $250,000; and
(xii) any other Contract (other than purchase orders issued by Seller or amendment thereto that would be required to be filed as an exhibit to a Third Party that are ancillary to another written Contract Form 10-K filed by the Company with the same Third Party and that do not constitute an Assumed Liability) in effect SEC as of the date of this Agreement (together with all Contracts referred to which Seller is a party or which was entered into by or on behalf of Sellerin Sections 5.11, or by which any of 5.15(a) and 5.17(a), the Acquired Assets is bound in the following categories (the “Material "Company Contracts”):
"). With respect to each Company Contract: (A) any the Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
is in full force and effect; (B) no Company Entity is in Default thereunder except for any Contract containing covenants prohibiting or limiting the right Default that would not reasonably be expected to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
have a Company Material Adverse Effect; (C) no Company Entity has repudiated or waived any Contract granting most favored nation or exclusive rights relating to material provision of any Compound or Product to any other Person;
such Contract; and (D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating no other party to any Compound such Contract is, to the Knowledge of the Company, in Default in any respect or Product has repudiated or waived any material provision thereunder. Except as disclosed in Section 5.16 of the Product Operations and each other Contract under which Seller is a licensor or licensee Company Disclosure Memorandum, all of the indebtedness of any Intellectual Property Rights relating to Company Entity for money borrowed is prepayable at any Compound time by such Company Entity without penalty or Product or the Product Operations other than any premium.
(b) Except as disclosed in Section 5.16 of the following entered into Company Disclosure Memorandum, since January 1, 2003, no material licensor, vendor, supplier, licensee, customer or client of any Company Entity has canceled or otherwise modified (in a manner materially adverse to the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts Company) its relationship with the Company Entity and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; no such Person has notified any Company Entity of its intention to do so and (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as Knowledge of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employeesCompany, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee consummation of the payment of Liabilities or performance of obligations of any other Person transactions contemplated by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or this Agreement will not affect any of its Affiliates such relationships in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract a manner that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into would result in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceCompany Material Adverse Effect.
(iic) All Attached as Section 5.16(c) of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser Company Disclosure Memorandum is a correct true and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material ContractSeventh Amendment to the Credit Agreement. To the Knowledge of Sellerthe Company, there exists no other party facts or circumstances regarding the Company Entities that are reasonably likely to cause a Material Contract is Default (under and as defined in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of timethe Credit Agreement) prior to August 29, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement2003.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Ahl Services Inc)
Material Contracts. (i) Section 5.1(i)(i) of the Disclosure Schedules Schedule 3.15 sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) all Contracts in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any hereof and of the Acquired Assets is bound in type described below (all such Contracts of the following categories (type described below, the “Material Contracts”):
(a) all Contracts for the purchase or lease by Seller of any tooling, dies or other supplies and equipment used or held for use in manufacturing, testing, storing or handling of the Business Products;
(b) all Contracts under which (i) Seller has been granted rights to or in any Business Intellectual Property Rights from a third party, including such Business Intellectual Property Rights as are: (1) used in or otherwise reasonably necessary for the making, having made, use, selling, offering for sale, export, importation or other use of the Business Products in the Territory; or (2) otherwise used in or necessary to the conduct of the Business in the Territory other than commercial off-the-shelf software licensed by Seller that are used solely in connection with the Business’s internal operations and that have not been modified or customized by or for the Business, or (ii) Contracts under which Seller grants any other Person any right or authorization to use any Business Intellectual Property Rights;
(c) all Contracts (i) prohibiting in any respect Seller from freely (A) engaging or competing (1) in any Contract line of business, (2) in any geographic location or (3) with any Person, or (B) soliciting or hiring any Person, (ii) providing for “meet competition,” “most favored nation” pricing terms or similar rights or (iii) establishing a an exclusive sale or purchase obligation with respect to any Person, product or any geographic location;
(d) all Contracts relating to Indebtedness guaranteed, incurred or provided by Seller;
(e) all partnership Contracts, joint venture Contracts or collaboration, co-promotion or like arrangement, or similar types of Contracts involving a sharing with another Person of profits, losses, costscosts or Liabilities with any other Person;
(f) all customer Contracts (or group of related Contracts) of Seller;
(g) all Contracts with suppliers and service providers related to the Business;
(h) any Contract or group of related Contracts for any single capital expenditure in excess of $50,000;
(i) all Contracts related to the Business which are not terminable without penalty by Seller upon 30 days’ or less advance notice;
(j) all Contracts relating to the disposition or acquisition by Seller of any business other than this Agreement (whether by merger, royaltiessale or purchase of assets, milestone paymentssale or purchase of stock or equity ownership interests or otherwise) (i) entered into on or after December 31, 2011 or (ii) that contain material surviving obligations of Seller;
(k) all (i) Contracts with a Governmental Authority that are related to the Business, including any blanket purchasing agreement or task order issued pursuant to such a Contract, or Liabilities (ii) subcontracts (at any tier) of Seller relating that are related to the Business with another Person that holds either a prime contract with a Governmental Authority, a subcontract (at any tier) under such a prime contract, or any teaming agreement with any entity in connection with any Government Contract or the potential award of a Government Contract;
(l) all other Contracts that are material to the Acquired Assets or the Development, manufacture, or Commercialization operation of any Compound or Product, including the conduct of any clinical trials;Business and not otherwise disclosed pursuant to this Section 3.15; or
(Bm) any Contract containing covenants prohibiting or limiting the right commitment to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than do any of the following entered into foregoing described in the Ordinary Course of Business and, clauses (a) through (l). Each Material Contract is in each case, that are not Acquired Business Contracts full force and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of effect and is a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements agreement of Seller, as the case may be, and assuming such Material Contract is binding and enforceable against the other parties thereto, is enforceable in accordance with their terms, its terms (subject to the General Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material ContractExceptions). Seller is not and, to Seller’s Knowledge, each of the other parties thereto are not, in material breach default or material default of breach under, any of the such Material Contracts or Nondisclosure Agreements, and no event has occurred that which, with or without notice or lapse of time, or both, would constitute such a material default by Seller under or material breach. Except as otherwise disclosed in the Disclosure Schedules, no party has delivered written notice of termination and, to Seller’s Knowledge, no party has threatened to exercise any termination rights with respect to any Material ContractContracts. To True, correct and complete copies of the Knowledge of SellerMaterial Contracts, no including all amendments, schedules, exhibits and other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As attachments thereto existing as of the date hereof, (A) the Liabilities of Seller relating have been made available to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000Buyer.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Navidea Biopharmaceuticals, Inc.)
Material Contracts. (i) Section 5.1(i)(iSchedule 4(j)(i) of the Disclosure Schedules sets forth a true complete and accurate correct list of each Contract all of the following Contracts of the Company (other than purchase orders issued by Seller to a Third Party all of such Contracts that are ancillary or should be listed on such Schedule 4(j)(i), together with all Real Property Leases, and insurance policies that are or should be listed on Schedule 4(m) and Schedule 4(u)(i), all Intellectual Property Licenses, and all amendments, supplements, or other modifications thereto, with respect to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as all of the date of this Agreement foregoing, being referred to which Seller is a party or which was entered into by or on behalf of Sellerherein collectively, or by which any of the Acquired Assets is bound in the following categories (as the “Material Contracts”):
(A) any Any Contract establishing (or group of related Contracts) (I) with a joint venture or collaboration, co-promotion or like arrangementMaterial Customer/Supplier, or involving a sharing with another Person (II) the performance of profits, losses, costs, royalties, milestone paymentswhich involved aggregate consideration in excess of $100,000 in the twelve (12)-month period ending at the end of the last full month immediately preceding the date hereof, or Liabilities which would reasonably be expected to involve aggregate consideration in excess of Seller relating to $100,000 in the Acquired Assets or twelve (12)-month period immediately following the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsdate hereof;
(B) any Any Contract containing covenants prohibiting under which the Company has made or limiting has the right or obligation to compete make any (I) loans or engage in advances to any aspect of the Product Operations its current or prohibiting former directors, managers, officers, employees, or restricting Seller’s ability to conduct the Product Operations with any Person other service providers, other than advances for expenses or in the Ordinary Course of Business, or (II) loans or advances to any geographical areaother third-parties;
(C) Any Contract under which the Company has any Contract granting most favored nation outstanding obligation or exclusive rights relating other Liability for any Funded Indebtedness (without regard to any Compound whether or Product not the same will be outstanding as of the Closing), or has the right or obligation to any other Personincur the same;
(D) any Any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose establishment of a service provider performing services for joint venture, strategic alliance, revenue-sharing partnership, or on behalf similar arrangement, or an entity in which the Company holds of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical studyrecord or owns beneficially, which study is complete directly or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employeesindirectly, including proprietary information and invention assignment agreements with employeesany Equity Equivalent;
(E) Any lease or other Contract pursuant to which the Company is granted, or grants to another Person, any Contract under which Seller pays or receives milestone or royalty payments relating non-ownership rights with respect to any Compound Computer Hardware, technology, or Product services related thereto, which Computer Hardware, technology, or any Product IPservices is or are material to the Conduct of the Business;
(F) any Any collective bargaining Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities other labor Contract or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assetsarrangement;
(G) any Any Contract entered into by Seller for the employment or any of its Affiliates in settlement engagement of any Legal Proceeding individual on a full time, part time, consulting, or other dispute relating to the Acquired Assets or the Product Operationsbasis providing annual compensation (including base salary, including the conduct commissions and bonuses) in excess of any clinical trials$100,000;
(H) any Contract that limits SellerAny profit sharing, equity option, equity appreciation, equity purchase, phantom equity, deferred compensation, severance, bonus, or other similar plans (whether in cash or otherwise) or arrangements for the benefit of the Company’s ability to make generally available any versions of any Compound current or Product developed by former directors, managers, officers, employees, or for Sellerother service providers;
(I) any Any Contract for under which the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded LiabilitiesCompany: (iI) standalone indemnity arrangements with clinical trial sites is bound (or clinical trial investigatorsis intended to be bound) by any non-competition, non-solicitation, or non-hire provisions, or any other provisions restricting its right to engage in any line of business or provide any goods or services; (iiII) powers has granted any exclusive rights; (III) has granted any options; (IV) has granted any rights of attorneyfirst offer or refusal; or (V) has granted any “most-favored-nation” right, letters of delegationspecial discount right, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)right;
(J) any Any Contract for (or group of related Contracts) under which the development, manufacture, supply, packaging, labeling, distribution, analytical testingCompany: (I) has acquired, or storage has an ongoing right or obligation to acquire, any entity or business or division or material portion thereof (by merger, consolidation, acquisition of equity or assets, or otherwise), or any other assets that are material in amount or nature outside the active pharmaceutical ingredients Ordinary Course of Business; or (II) has Transferred, or has an ongoing right or obligation to Transfer, any assets that are material in amount or nature outside the Ordinary Course of Business, in each case within the foregoing clauses (I) and other raw materials for (II), which Contract was entered into since the date that is three (3) years prior to the date hereof or otherwise may contain any Compound remaining rights or Productobligations, and related quality agreementswhether or not contingent;
(K) any Any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Productprimarily concerning confidentiality, non-disclosure, and/or non-use obligations;
(L) Any Contract (or group of related Contracts) under which the Company has or will have any minimum purchase obligations requiring purchases in an amount that would reasonably be expected to exceed in any year $100,000 individually for such Contract (or group of related Contracts) (including any such Contract that contains a penalty or “take-or-pay” provision for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;failure to purchase such amount); and
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any Any other Contract (or group of related Contracts) that is material to the Development, manufacture or sale Conduct of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancethe Business.
(ii) All Each Material Contract constitutes a legal, valid, and binding obligation of the Material Contracts are valid Company, in full force and binding agreements of Seller, effect and enforceable in accordance with their termsits terms and conditions against the Company (and, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Sellerthe Company, each other party thereto), except as such enforceability may be limited by the Enforceability Exceptions. The Company is not (and, to the Knowledge of the Company, no other party to a any such Material Contract is is) in material breach of or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract Contract, with or Nondisclosure Agreementwithout the lapse of time or the giving of notice or both. No party has repudiated in writing or, Since the date that is twelve (12) months prior to the Knowledge of Sellerdate hereof, no other party to any Material Contract has materially reduced or otherwise provided materially adversely modified the business conducted under such Material Contract, has communicated written notice of threatening or stating its intention to repudiate any provision of a do so or to terminate such Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenContract, or to the Knowledge has provided written notice claiming a breach of Seller other, notice regarding any material violation or breach of, or default under, or repudiating any material provision of, such Material Contract or Nondisclosure AgreementContract.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (XL Fleet Corp.)
Material Contracts. (ia) All Contracts required to be filed as exhibits to the Holdings SEC Documents have been so filed in a timely manner. Section 5.1(i)(i4.16(a) of the Holdings Disclosure Schedules Schedule sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect complete list, as of the date hereof, of this Agreement each of the following Contracts to which Seller Holdings or any of its Subsidiaries is a party or which was entered into by or on behalf of Seller, or by which Holdings or any of the Acquired Assets is its Subsidiaries or any of their assets or businesses are bound in the following categories (the “Material Contracts”and any amendments, supplements and modifications thereto):
(Ai) any Contract establishing that is a joint venture “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) any Contract that materially limits the ability of Holdings or any of its affiliates (including, following the consummation of the Transactions, New Amethyst and its affiliates) to compete or provide services in any line of business or with any Person or in any geographic area or market segment or to engage in any type of business (including any license, collaboration, coagency or distribution agreements);
(iii) any Contract required to be disclosed pursuant to Item 404 of Regulation S-promotion K of the Exchange Act;
(iv) any Contract or like arrangementseries of related Contracts relating to indebtedness for borrowed money (A) in excess of $1 million or (B) that becomes due and payable as a result of the Transactions;
(v) any license, sublicense, option, development or collaboration agreement or other Contract relating to Holdings Material Intellectual Property reasonably expected to result in aggregate payments in excess of $1 million after the Closing Date (excluding license agreements for “shrink-wrap,” “click-wrap” or other commercially available off- the-shelf software that is not the subject of a negotiated agreement, and excluding agreements the primary purpose of which is to purchase tangible goods or procure services unrelated to Intellectual Property and in the ordinary course of business);
(vi) any Contract that is material to the business of Holdings and its Subsidiaries, taken as a whole, that provides for any “most favored nation” provision or equivalent preferential pricing terms or similar obligations to which Holdings or any of its Subsidiaries is subject;
(vii) any purchase, sale or supply contract that contains volume requirements or commitments, exclusive or preferred purchasing arrangements or promotional requirements reasonably expected to result in payments in excess of $4 million in any twelve (12) month period after the Closing Date;
(viii) any lease, sublease, occupancy agreement or other Contract with respect to the Holdings Leased Real Property reasonably expected to result in payments in excess of $1 million in any twelve (12) month period after the Closing Date;
(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 Holdings or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses (in any case in excess of $10 million);
(x) any acquisition or divestiture agreement (A) entered into since January 1, 2013 with a purchase price in excess of $25 million or (B) that contains “earn-out” provisions or other contingent payment obligations that could reasonably be expected to exceed $5 million for any such Contract individually or $25 million in the aggregate (including indemnification obligations) that have not been satisfied in full;
(xi) any agreement that by its terms limits the payment of dividends or other distributions by Holdings or any of its Subsidiaries;
(xii) any Contract for any joint venture, partnership or similar arrangement (in each case, other than any Affiliated Medical Group), or any Contract involving a sharing with another Person of revenues, profits, losses, costs, royalties, milestone payments, or Liabilities liabilities by Holdings or any of Seller relating to the Acquired Assets its Subsidiaries with any other Person involving a potential combined commitment or the Development, manufacture, or Commercialization payment by Holdings and any of any Compound or Product, including the conduct its Subsidiaries in excess of any clinical trials$1 million annually;
(Bxiii) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person Governmental Entity that is reasonably expected to result in (x) the payment by Holdings or any of its Subsidiaries of an amount in any geographical areaexcess of $30 million per annum or (y) the receipt by Holdings or its Subsidiaries of an amount in excess of $30 million per annum;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(Dxiv) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Holdings or any of its Affiliates in settlement of Subsidiaries provides emergency department, radiology, anesthesia, hospitalist program or any Legal Proceeding other staffing services to or for any hospital or other dispute relating healthcare facility that generated revenue to Holdings and its Subsidiaries in excess of $20 million in the Acquired Assets or the Product Operationsyear ended December 31, including the conduct of any clinical trials2015;
(Hxv) any Contract pursuant to which Holdings or any of its Subsidiaries provides management, consulting, billing or other administrative-type services to or for any hospital or other healthcare facility, any physician or medical group (excluding Affiliated Medical Groups) or any other Person that generated revenue to Holdings and its Subsidiaries in excess of $20 million in the year ended December 31, 2015;
(xvi) any Contract that limits Seller’s ability generated revenue to make generally available Holdings and its Subsidiaries of in excess of $30 million in the year ended December 31, 2015 between Holdings or any versions of its Subsidiaries and (i) any Compound municipality or Product developed by other local agency pursuant to which Holdings or for Sellerany of its Subsidiaries provides emergency 911 response services or (ii) any Private Program pursuant to which Holdings or any of its Subsidiaries provides emergency or non-emergency transportation services;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nxvii) any Contract with any Governmental Authority relating hospital, skilled nursing facility or other healthcare facility pursuant to any Compound or Product which Holdings or any of its Subsidiaries provides emergency or non-emergency transportation services to such hospital, skilled nursing facility or other healthcare facility that is not terminable by Holdings or its Subsidiary’s counterparty, upon less than 120 days’ notice, that generated revenue to Holdings and its Subsidiaries of in excess of $30 million in the Acquired Assetsyear ended December 31, 2015;
(xviii) any Contract between any of Holdings or any of its Subsidiaries, on the one hand, and a third party payor (including any Governmental Program and any Private Program), on the other than clinical trial agreements and related ancillary agreements with public institutionshand, that applies to Holdings or any of its Subsidiaries on a national or statewide basis; and
(Oxix) any other Contract that is material agreement which would prohibit or delay beyond the Outside Date the consummation of the Mergers or any other Transaction contemplated by this Agreement.
(b) Holdings has heretofore made available to AmSurg true, correct and complete copies of the DevelopmentContracts set forth in Section 4.16(a).
(c) Except as has not had and would not reasonably be expected to have, manufacture individually or sale of any Compound or Productin the aggregate, in each casea Holdings Material Adverse Effect, as currently conducted by Seller, other than any Contract relating to (i) real property, (iiall Contracts set forth or required to be set forth in Section 4.16(a) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Holdings Disclosure Schedule or filed or required to be filed as exhibits to the Holdings SEC Documents (the “Holdings Material Contracts Contracts”) are valid valid, binding and binding agreements of Seller, in full force and effect and are enforceable by Holdings or its applicable Subsidiary in accordance with their terms, subject except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) Holdings, or its applicable Subsidiary, has performed all obligations required to be performed by it under the Enforceability Exception. Other than Holdings Material Contracts entered into on behalf of SellerContracts, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller it is not in material breach (with or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with without notice or lapse of time, or both) in breach or default thereunder and, would constitute a material default by Seller under any Material Contract. To to the Knowledge of SellerHoldings, no other party to a any Holdings Material Contract is in material breach (with or material default of such Material Contract and no event has occurred that with without notice or lapse of time, or both) in breach or default thereunder, would constitute a material default by such other party under (iii) since January 1, 2013, neither Holdings nor any Material Contract or Nondisclosure Agreement. No party of its Subsidiaries has repudiated in writing or, to the Knowledge of Seller, otherwise provided received written notice of its intention to repudiate any provision of a Material Contract actual, alleged, possible or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material potential violation or breach of, or default underfailure to comply with, any term or requirement of any Holdings Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepaymentsContract, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) neither Holdings nor any of its Subsidiaries has received any written notice of the Disclosure Schedules sets forth an accurate and complete list intention of all outstanding accrued trade payables any party to cancel, terminate, materially change the scope of rights under the Acquired Business Contracts as of the date hereofor fail to renew any Holdings Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Envision Healthcare Holdings, Inc.)
Material Contracts. (ia) Section 5.1(i)(i) SCHEDULE 5.21 of the Company Disclosure Schedules Letter sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller contract, lease, indenture, agreement, license, arrangement or understanding to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect which, as of the date hereof, the Company or any of this Agreement to which Seller its Subsidiaries is a party or which was subject that would be required to be included as an exhibit to a Form S-1 Registration Statement pursuant to the rules and regulations of the SEC if such a registration statement were to be filed by the Company on the date hereof and no previous filings had been made (the "Material Contracts"), except for those Material Contracts previously filed by the Company with the SEC, and sets forth any of the following that exists as of the date hereof, whether or not such contract would be required to be disclosed pursuant to the above-stated guidelines:
(i) any employment, severance, noncompetition, consulting or other agreements of any nature (other than Company-standard agreements of the type entered into by the Company's non-officer employees) with any current or on behalf former stockholder, partner or officer of Sellerthe Company, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):its Subsidiaries or any Affiliate of any of such Persons;
(Aii) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller agreements relating to the Acquired Assets or the Development, manufacture, or Commercialization making of any Compound loan or Product, including advance by the conduct Company or any of any clinical trialsits Subsidiaries;
(Biii) any Contract containing covenants prohibiting agreements providing for the indemnification by the Company or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with its Subsidiaries of any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(Div) any Contract pursuant to which Seller has obtained or granted agreements with any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following Governmental Authority except those entered into in the Ordinary Course ordinary course of Business and, in each case, that business which are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating material to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialsSubsidiaries;
(Hv) any Contract that limits Seller’s ability contracts and agreements for the sale of assets or for the furnishing of services, goods or products by or to make generally available the Company or any versions of its Subsidiaries, including supply agreements, (A) with commitments having a value in excess of $1,000,000 or (B) with commitments having a value in excess of $500,000 and 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 Compound termination fee or Product developed by or for Sellersimilar payment;
(Ivi) any Contract for broker, distributor, dealer or representative or agency agreements pursuant to which the research Company made payments in excess of $100,000 during the preceding fiscal year;
(vii) any agreements (including settlement agreements) currently in effect pursuant to which the Company or Development any of its Subsidiaries licenses the right to use any Compound Intellectual Property to any Person or Productfrom any Person (other than license agreements related to off-the-shelf software products);
(viii) any confidentiality agreements entered into by the Company or any of its Subsidiaries during the period commencing three years prior to the date hereof pursuant to which confidential information has been provided to a third party or by which the Company or any of its Subsidiaries was restricted from providing information to third parties, other than any of the following confidentiality agreements entered into in the Ordinary Course normal course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)business;
(Jix) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, voting trust or storage similar agreements relating to any of the active pharmaceutical ingredients and other raw materials for ownership interests in the Company or any Compound of its Subsidiaries to which any of Principal Stockholders, the Company or Productany of its Subsidiaries is a party;
(x) any joint venture, and related quality partnership or similar documents or agreements;
(Kxi) any Contract for agreement that materially limits or purports to materially limit the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance ability of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product Company or any of the Acquired Assetsits Subsidiaries to own, other than clinical trial agreements and related ancillary agreements with public institutionsoperate, sell, transfer, pledge or otherwise dispose of any assets; and
(Oxii) any all other Contract that is agreements, contracts or commitments not made in the ordinary course of business which are material to the Development, manufacture Company or sale any of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceits Subsidiaries.
(iib) All To the Knowledge of the Company, each Material Contracts are Contract is legal, valid and binding agreements of Seller, on and enforceable against the Company or its Subsidiary party thereto and the other parties thereto and is in accordance with their termsfull force and effect, subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights generally. Except as set forth on SCHEDULE 5.21(B) of the Enforceability Exception. Other than Company Disclosure Letter, upon consummation of the transactions contemplated by this Agreement, each Material Contracts entered into on behalf Contract shall remain in full force and effect without any loss of Seller, Seller has made available or delivered benefits thereunder and without the need to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default obtain the consent of any party thereto to the transactions contemplated by this Agreement. Neither the Company nor any of its Subsidiaries is (and with the Material Contracts or Nondisclosure Agreements, and no event has occurred that with giving of notice or lapse of timetime would not be) in material breach of, or both, would constitute a material default by Seller under under, any Material Contract and, to the Knowledge of the Company, no other party thereto is in material breach of, or material default under, any Material Contract, except for those breaches which would not result in a Material Adverse Effect to the Company. To Neither the Knowledge Company nor any of Sellerits Subsidiaries has received any written notice that any Material Contract is not enforceable against any party thereto, no other that any Material Contract has been terminated before the expiration of its term or that any party to a Material Contract is in material breach or material default of intends to terminate such Material Contract and no event has occurred that with notice or lapse of timeprior to the termination date specified therein, or both, would constitute a material default by such that any other party under any Material Contract or Nondisclosure Agreement. No party has repudiated is in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net Contract. True and complete copies of all deposits (including Material Contracts or, in the deposit referenced in clause (B))case of oral agreements that constitute Material Contracts, advances and prepaymentsif any, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal written summaries thereof have been delivered to $2,480,000Parent.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (ia) Section 5.1(i)(i) Buyer has been delivered a true, complete, and correct list of all Contracts to which the Company or any of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller Operating Subsidiaries is a party or which was entered into by or on behalf of Sellerparty, or by which the Company or any of the Acquired Assets Operating Subsidiaries is bound in bound, meeting any of the following categories descriptions set forth below (the “Material Contracts”):
(Ai) Contracts or group of related Contracts involving expected payments to or from the Company of more than US$200,000.00 annually, individually or in the aggregate; Alt5_MSwipe_SPA_030325.rwk.8a11
(ii) any Contract establishing a joint venture or collaborationunder which the Company has (A) created, co-promotion or like arrangementincurred, assumed, or involving a sharing with another Person of profits, losses, costs, royalties, milestone paymentsguaranteed any indebtedness for borrowed money, or Liabilities of Seller relating to the Acquired Assets (B) granted a Lien on its asset or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsproperties (other than a Permitted Lien);
(Biii) any Contract containing covenants prohibiting (A) licenses of or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than license agreements for “off the shelf” generally commercially available software and non-exclusive licenses granted by the Company or any of the following Operating Subsidiaries to customers in the Ordinary Course of Business), (B) Contracts under which any Person has developed or has been engaged to develop any material Intellectual Property for the Company or any of the Operating Subsidiaries (excluding agreement with employees and contractors entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (ion standard forms of agreement which have been provided to Buyer) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses or under which the Company or an Operating Company has developed or has been engaged to develop any material Intellectual Property Rights included for any Person, or (C) contracts entered into to settle or resolve any Intellectual Property-related dispute, including settlement agreements, co-existence agreements, covenant not to sue agreements and consent to use agreements;
(iv) Contracts (A) imposing any material restrictions upon the ability of the Company or its Affiliates to freely engage in their respective businesses anywhere in the Acquired Assets world or materially limiting their right to compete or engage in any line of business or operate in any geographical area, (B) obligating the Company or its Affiliates to conduct business on a “most favored nation” basis with any third party with respect to pricing terms, or (C) granting exclusive rights to any third party or requiring the Company or its Affiliates to purchase all or substantially all of its requirements for a product or service from a particular Person;
(v) Contracts relating to the acquisition or disposition (other than acquisitions or dispositions of supplies, inventory, or products in the Ordinary Course of Business) by the Company of (A) a business or a business line, (B) assets or properties, or (C) any Equity Interests;
(vi) Contracts involving the lease of real property (including the Leased Real Property leases) or tangible personal property with a value greater than [US$10,000.00];
(vii) collective bargaining agreements or any other contract with any labor union, works council or other labor organization (each, a “Labor Agreement”);
(viii) joint venture, partnership, investment, strategic alliance, sharing of revenue or similar agreements between the Company and any third party;
(ix) Contracts with any Governmental Entity;
(x) Contracts with the Top Customers;
(xi) Contracts with the Top Vendors;
(xii) Contracts with the Top Licensors;
(xiii) Contracts with any Company Related Party;
(xiv) Contracts for the sole purpose engagement or employment of a any former (to the extent of any ongoing Liability) or current officer, director, employee or other Person that provide for (A) annual compensation in excess of CDN$50,000.00 or require the Company to provide notice in excess of thirty (30) days in order to terminate such agreement without liability, (B) severance or termination benefits or payments, (C) the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby (either alone or in combination with any other event), or (D) loans to any current or former employees, officers, directors or other individual service provider performing services for providers; and Alt5_MSwipe_SPA_030325.rwk.8a12
(xv) any settlement, conciliation or on behalf of Seller; (iii) agreements similar agreement with clinical investigators and clinical sites for any Governmental Entity or other Person pursuant to which the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of Company would have outstanding obligations after the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(iib) All of the Each Material Contracts are valid Contract is legal, valid, and binding agreements of Seller, on the Company or the applicable Operating Subsidiary and is in full force and effect and enforceable by the Company or the applicable Operating Subsidiary in accordance with their its terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available Exceptions.
(c) The Company or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller the applicable Operating Subsidiary is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of timeunder, or bothin breach of, would constitute a material default by Seller under any Material Contract. To the Knowledge of Sellerany of the Sellers and the Related Interest Holders, no other party to a any Material Contract is in material breach thereof or material default of such Material Contract thereunder, and no event has occurred that which, with notice or the lapse of time, time or both, would constitute a material default by such other party under breach or default. The Company or applicable Operating Subsidiary has not received any Material Contract or Nondisclosure Agreement. No party has repudiated in writing written (or, to the Knowledge of Sellerany of the Sellers and the Related Interest Holders, otherwise provided oral) notice of its intention to repudiate termination, cancellation, non-renewal, non-extension, revocation, dispute, material breach or material default under any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenContract, or and, to the Knowledge of Seller otherany of the Sellers and the Related Interest Holders, notice regarding any material violation or breach there are no renegotiations of, or default underattempts or requests to renegotiate or outstanding rights to renegotiate, any material terms of any of the Material Contract Contracts. There are no claims pending or Nondisclosure Agreementthreatened in writing (or, to the Knowledge of any of the Sellers and the Related Interest Holders, orally) alleging the default or breach of any Material Contract.
(iiid) As Each of the date hereofrepresentations and warranties contained in the December 2024 Agreement was true and correct as of December 4, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,0002024, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereofof closing of the transactions contemplated therein (unless and to the extent the applicable representation and warranty expressly references a specific date), and as of the Closing Date and, notwithstanding any temporal, scope, or other limitations of the enforcement of such representations and warranties in the December 2024 Agreement and the terms of the December 2024 Release Agreement, such representations and warranties and the related covenants contained in the December 2024 Agreement remain in full force an effect as of the Closing Date as if they had been set forth in full herein.
Appears in 1 contract
Material Contracts. Except as set forth on Schedule 4.18 or excepted below, neither Bancorp nor CUB is a party to any material contract, agreement, understanding, commitment or offer, whether written or oral, which may become a binding obligation if accepted by another person (icollectively referred to as an "Understanding") Section 5.1(i)(iincluding the following:
(a) Any loan, letter of credit, pledge, security agreement, lease (excluding transactions in the ordinary course of the Disclosure Schedules sets forth banking business and leases of real property listed on Schedule 4.11(a)), guarantee, commitment or subordination agreement or other similar or related type of Understanding as to which Bancorp or CUB is a true and accurate list debtor, pledgor, lessee or obligor;
(b) Any Understanding dealing with advertising, brokerage, licensing, dealership, representative or agency relationships providing for an aggregate annual payment in excess of each Contract $25,000;
(c) Any profit-sharing, group insurance, bonus, deferred compensation, stock option, severance pay, pension, retirement or other employee benefit plan;
(d) Any written correspondent banking contracts;
(e) Any Understanding (other than this Agreement) for the sale of their respective assets other than in the ordinary course of business or for the grant of any preferential right to purchase orders issued by Seller any of their respective assets, properties or rights, or any Understanding which requires the consent of any third party to the transfer and assignment of any assets, properties or rights. For purposes of this provisions sales of CUB's mortgage servicing portfolio shall be considered to be in the ordinary course of business;
(f) Any Understanding which provides for an annual payment in excess of $250,000 in the aggregate to purchase, sell or provide services, materials, supplies, merchandise, facilities or equipment and which is not terminable without penalty on not more than 30 days' notice;
(g) Any Understanding for any one capital expenditure or series of capital expenditures which is in excess of $200,000 individually or $500,000 in the aggregate;
(h) Any Understanding to make, renew or extend the term of a Third Party that are ancillary to another written Contract with the same Third Party and that do loan (not constitute an Assumed Liability) in effect fully disbursed or funded as of the date December 31, 1994) to any person or to any affiliate of such person, which undisbursed or unfunded amounts, when aggregated with all outstanding indebtedness of such person or any affiliate of such person to Bancorp or CUB, would exceed $2,500,000. The term "person" as used herein and throughout this Agreement to which Seller is a party or which was entered into by or on behalf of Sellershall mean any individual, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a corporation, association, partnership, joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product entity or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets government or the guarantee of the payment of Liabilities governmental department or performance of obligations of any other Person by Seller relating to any Compound agency. The term "affiliate of" or Product a person "affiliated with" a specific person as used herein and throughout this Agreement shall mean a person that directly or any Acquired Assets;
(G) any Contract entered into by Seller indirectly through one or any of its Affiliates in settlement of any Legal Proceeding more intermediaries controls or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed is controlled by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection under common control with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)persons specified;
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (ia) Section 5.1(i)(i) SCHEDULE 5.21 of the Company Disclosure Schedules Letter sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller contract, lease, indenture, agreement, license, arrangement or understanding to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect which, as of the date hereof, the Company or any of this Agreement to which Seller its Subsidiaries is a party or which was subject that would be required to be included as an exhibit to a Form S-1 Registration Statement pursuant to the rules and regulations of the SEC if such a registration statement were to be filed by the Company on the date hereof and no previous filings had been made (the "Material Contracts"), except for those Material Contracts previously filed by the Company with the SEC, and sets forth any of the following that exists as of the date hereof, whether or not such contract would be required to be disclosed pursuant to the above-stated guidelines:
(i) any employment, severance, noncompetition, consulting or other agreements of any nature (other than Company-standard agreements of the type entered into by the Company's non-officer employees) with any current or on behalf former stockholder, partner or officer of Sellerthe Company, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):its Subsidiaries or any Affiliate of any of such Persons;
(Aii) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller agreements relating to the Acquired Assets or the Development, manufacture, or Commercialization making of any Compound loan or Product, including advance by the conduct Company or any of any clinical trialsits Subsidiaries;
(Biii) any Contract containing covenants prohibiting agreements providing for the indemnification by the Company or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with its Subsidiaries of any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(Div) any Contract pursuant to which Seller has obtained or granted agreements with any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following Governmental Authority except those entered into in the Ordinary Course ordinary course of Business and, in each case, that business which are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating material to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialsSubsidiaries;
(Hv) any Contract that limits Seller’s ability contracts and agreements for the sale of assets or for the furnishing of services, goods or products by or to make generally available the Company or any versions of its Subsidiaries, including supply agreements, (A) with commitments having a value in excess of $1,000,000 or (B) with commitments having a value in excess of $500,000 and 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 Compound termination fee or Product developed by or for Sellersimilar payment;
(Ivi) any Contract for broker, distributor, dealer or representative or agency agreements pursuant to which the research Company made payments in excess of $100,000 during the preceding fiscal year;
(vii) any agreements (including settlement agreements) currently in effect pursuant to which the Company or Development any of its Subsidiaries licenses the right to use any Compound Intellectual Property to any Person or Productfrom any Person (other than license agreements related to off-the-shelf software products);
(viii) any confidentiality agreements entered into by the Company or any of its Subsidiaries during the period commencing three years prior to the date hereof pursuant to which confidential information has been provided to a third party or by which the Company or any of its Subsidiaries was restricted from providing information to third parties, other than any of the following confidentiality agreements entered into in the Ordinary Course normal course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)business;
(Jix) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, voting trust or storage similar agreements relating to any of the active pharmaceutical ingredients and other raw materials for ownership interests in the Company or any Compound of its Subsidiaries to which any of Principal Stockholders, the Company or Productany of its Subsidiaries is a party;
(x) any joint venture, and related quality partnership or similar documents or agreements;
(Kxi) any Contract for agreement that materially limits or purports to materially limit the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance ability of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product Company or any of the Acquired Assetsits Subsidiaries to own, other than clinical trial agreements and related ancillary agreements with public institutionsoperate, sell, transfer, pledge or otherwise dispose of any assets; and
(Oxii) any all other Contract that is agreements, contracts or commitments not made in the ordinary course of business which are material to the Development, manufacture Company or sale any of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceits Subsidiaries.
(iib) All To the Knowledge of the Company, each Material Contracts are Contract is legal, valid and binding agreements of Seller, on and enforceable against the Company or its Subsidiary party thereto and the other parties thereto and is in accordance with their termsfull force and effect, subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights generally. Except as set forth on SCHEDULE 5.21(b) of the Enforceability Exception. Other than Company Disclosure Letter, upon consummation of the transactions contemplated by this Agreement, each Material Contracts entered into on behalf Contract shall remain in full force and effect without any loss of Seller, Seller has made available or delivered benefits thereunder and without the need to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default obtain the consent of any party thereto to the transactions contemplated by this Agreement. Neither the Company nor any of its Subsidiaries is (and with the Material Contracts or Nondisclosure Agreements, and no event has occurred that with giving of notice or lapse of timetime would not be) in material breach of, or both, would constitute a material default by Seller under under, any Material Contract and, to the Knowledge of the Company, no other party thereto is in material breach of, or material default under, any Material Contract, except for those breaches which would not result in a Material Adverse Effect to the Company. To Neither the Knowledge Company nor any of Sellerits Subsidiaries has received any written notice that any Material Contract is not enforceable against any party thereto, no other that any Material Contract has been terminated before the expiration of its term or that any party to a Material Contract is in material breach or material default of intends to terminate such Material Contract and no event has occurred that with notice or lapse of timeprior to the termination date specified therein, or both, would constitute a material default by such that any other party under any Material Contract or Nondisclosure Agreement. No party has repudiated is in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net Contract. True and complete copies of all deposits (including Material Contracts or, in the deposit referenced in clause (B))case of oral agreements that constitute Material Contracts, advances and prepaymentsif any, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal written summaries thereof have been delivered to $2,480,000Parent.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (a) Except for this Agreement, Section 3.17 of the Company Disclosure Letter contains a complete and correct list, as of the entry into this Agreement, of each Contract, including all amendments, supplements, and side letters thereto that modify each such Contract, described below in this Section 3.17(a) to which the Company or any Company Subsidiary is a party or by which they are bound or by which they or any of their respective properties or assets are subject or bound, as of the entry into this Agreement, other than any Company Leases (all Contracts of the type described in this Section 3.17(a), whether or not set forth on Section 3.17 of the Company Disclosure Letter, being referred to herein as the “Material Contract”):
(i) each Contract that limits the freedom of the Company, any Company Subsidiary or any of their respective affiliates to compete or engage in any line of business or geographic region or with any Person or sell, supply or distribute any product or service or that otherwise has the effect of restricting the Company, the Company Subsidiaries or any of their respective affiliates (including Parent and its affiliates after the Effective Time) from the development, marketing or distribution of products and services, in each case, in any geographic area, in each case, both (A) in any geographic area and (B) in a manner that is material to the Company and the Company Subsidiaries, taken as a whole;
(ii) any material joint venture, strategic alliance (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries) or similar Contract;
(iii) each acquisition or divestiture Contract that (A) requires future acquisition or divestiture by the Company with a value in excess of $5,000,000, or (B) contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making by the Company or any Company Subsidiary of future payments in excess of $5,000,000;
(iv) each Contract that gives any Person the right to acquire any assets of the Company or any Company Subsidiary (excluding ordinary course commitments to purchase Company Products) after the entry into this Agreement with consideration of more than $5,000,000;
(v) each Contract pursuant to which the Company or any Company Subsidiary (A) grants any license, covenant not to assert or similar right to any third party under or to any Company Intellectual Property that is material to the business of the Company and the Company Subsidiaries, taken as a whole, except Ordinary Course Licenses, or (B) is granted a license, covenant not to assert, or similar right under or to any third party’s Intellectual Property that is material to the business of the Company and the Company Subsidiaries, taken as a whole, other than non-exclusive licenses granted on substantially standard terms with respect to commercially available Software or information technology services;
(vi) each Contract not otherwise described in any other subsection of this Section 5.1(i)(i3.17(a) pursuant to which the Company or any Company Subsidiary is obligated to pay, or entitled to receive, payments in excess of $5,000,000 during the Company’s Fiscal Year most recently ended prior to entry into this Agreement;
(vii) any Contract that obligates the Company or any Company Subsidiary to make any capital investment or capital expenditure outside the ordinary course of business and in excess of $5,000,000 per annum;
(viii) each Contract that is a Material Customer Agreement or a Material Supplier Agreement;
(ix) each Contract that grants any right of first refusal or right of first offer that is material to the Company and the Company Subsidiaries, taken as a whole, with respect to any material assets of the Company or the Company Subsidiaries;
(x) each Contract that contains any exclusivity rights or “most favored nations” provisions or minimum use, supply or display requirements that are binding on the Company or its affiliates (including Parent and its affiliates after the Effective Time) and, in each case, are material to the Company and the Company Subsidiaries, taken as a whole;
(xi) each Contract relating to outstanding Indebtedness for borrowed money (other than intercompany Indebtedness owed by the Company or any Company Subsidiary) of the Disclosure Schedules sets forth Company or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in an aggregate principal amount in excess of $5,000,000;
(xii) each Contract governing any collaboration, co-promotion, strategic alliance or design project contract which, in each case, is material to the Company and the Company Subsidiaries, taken as a true whole;
(xiii) each Contract involving any material collective bargaining agreement or other material Contract with any labor union (or similar organization); and
(xiv) any Contract not otherwise described in any other subsection of this Section 3.17(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company.
(b) True and accurate list complete copies of each Material Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement hereof have been made available to which Seller is a party Parent or which was entered into by or on behalf of Seller, or by which any publicly filed with the SEC prior to the date hereof. None of the Acquired Assets Company or any Company Subsidiary is bound in (or has received any written claim of) breach or default under the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization terms of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, time or both, both that would constitute a material breach or default thereunder by such the Company or any of the Company Subsidiaries, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Company’s Knowledge, as of the entry into this Agreement, no other party under to any Material Contract is in breach of or Nondisclosure Agreementdefault under the terms of any Material Contract where such breach or default has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. No Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Material Contract is a valid, binding and enforceable, obligation of the Company or the Company Subsidiary which is party has repudiated in writing orthereto and, to the Knowledge Company’s Knowledge, of Sellereach other party thereto, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenand is in full force and effect, or in each case, subject to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementEnforceability Limitations.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Tapestry, Inc.)
Material Contracts. (i) Section 5.1(i)(i) of the Disclosure Schedules Schedule 3.25 sets forth a true true, complete and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect correct list, as of the date hereof, of each of the following Contracts (other than Benefit Arrangements) to which the Company or any of its Subsidiaries is a party (each such Contract of the type required to be set forth thereon, whether or not actually set forth thereof, a “Material Contract”):
(a) Collective bargaining agreement or other Contract with any labor organization, union or association or Contract with a professional employer organization, or other Contract providing for co-employment of employees of the Company or any of its Subsidiaries, or Contract with a professional employer organization or co-employer organization or other Contract provision for co-employment of employees of the Company or its Subsidiaries;
(b) Contract that provides for a payment or benefit, accelerated vesting, upon the execution of this Agreement Agreement, the other Transaction Documents to which Seller the Company is a party or which was entered into by or on behalf of Seller, or by which the Closing in connection with any of the Acquired Assets is bound in the following categories (the “Material Contracts”):Transactions;
(Ac) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or ProductIndebtedness, including the conduct mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens) on any Asset or group of Assets of the Company or any of its Subsidiaries and issuance of any clinical trialsIndebtedness by the Company or its Subsidiaries in excess of $1,000,000;
(Bd) any Real Property Lease or Contract containing covenants prohibiting under which the Company or limiting any of its Subsidiaries is the right to compete lessee of or engage in the holder or operator of any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to material personal property owned by any other Person;
(De) Contract under which the Company or any of its Subsidiaries is the lessor of or permits any third Person to hold or operate any Owned Real Property, Leased Real Property or material personal property owned or controlled by the Company or any of its Subsidiaries;
(f) Assignment, license, covenant, indemnification or other agreement with respect to any form of intangible property, including any Intellectual Property or confidential information, with the exception of (i) shrink-wrap, click-wrap, click-through, or similar non-exclusive license to off-the-shelf software used for internal use by the Company, granted on standard terms, with a dollar value individually not in excess of $100,000, (ii) any Contract pursuant related to which Seller has obtained open source software, or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to the Company licenses any Compound or Product or any Product IPof its Intellectual Property in the Ordinary Course;
(Fg) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired AssetsAffiliate Contracts;
(Gh) Contracts involving any Contract entered into by Seller or any Governmental Authority other than Contracts for the sale of its Affiliates the Company’s products in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialsOrdinary Course;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorneyContracts related to joint ventures, letters of delegationpartnerships, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities relationships for clinical studies outside of the U.S. joint marketing (other than local representative agreements and legal representative agreements co-marketed items) or similar arrangements for local representation entered into joint development with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsanother Person; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Mountain Crest Acquisition Corp.)
Material Contracts. (ia) Section 5.1(i)(iExcept as set forth on Schedule 3.16(a) of (such Contracts responsive to the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract following subsections together with the same Third Party Leases and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of SellerAffiliate Contracts, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):), no Acquired Company is a party to or bound by any Contracts of the following types:
(i) any Contract with any current or former Service Provider or other Person on a full-time, part-time, consulting or other basis (other than (A) any “at-will” Contract establishing that may be terminated by the Acquired Company upon thirty (30) days’ or less advance notice without liability or (B) under which the Acquired Company does not have any further Liability or executory obligations) (1) with respect to employment with or the provision of services to the Acquired Company or (2) related to any redundancy, severance, separation, settlement, release of claims or other post-termination benefits;
(ii) any Contract providing or granting any change in control, retention or transaction bonuses or similar arrangements required as a result of or triggered (in whole or in part) by the Transactions;
(iii) any Contract related to the Indebtedness of any Acquired Company;
(iv) any Contract providing for (A) the license of any Intellectual Property Rights (other than non-exclusive licenses of commercially-available Software with a total replacement cost of less than $20,000) or (B) the development of any Intellectual Property Rights for the Acquired Companies;
(v) any Contract (A) granting a royalty, dividend or similar arrangement based on the revenues or profits of any Acquired Company or, (B) with respect to any partnership, manufacturer, development, joint venture or collaboration, co-promotion similar relationship or like arrangement, or involving that involves a sharing with another Person of revenues, profits, losses, costs, royalties, milestone payments, costs or Liabilities of Seller liabilities relating to the an Acquired Assets Company or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nvi) any Contract with any Governmental Authority relating professional employer organization, staffing agency, temporary employee agency or similar company or service;
(vii) any collective bargaining agreement or other Contract with any Union;
(viii) any Contract involving the settlement or compromise of any Action;
(ix) any Contract related to any Compound completed, pending or Product future (A) disposition, divestiture or acquisition (whether by merger, sale of stock, sale of assets or otherwise) of any business or material portion of assets or properties by any Acquired Company, (B) any consolidation, recapitalization, reorganization or other business combination with respect to any Acquired Company, or (C) issuance of any Equity Securities of any Acquired Company;
(x) any Contract (or group of related Contracts) that involves future expenditure, payment or receipt of consideration in excess of $50,000 in any calendar year or that is not terminable by the Acquired Companies without penalty on notice of thirty (30) days or less, other than Contracts with the customers of the Acquired Companies entered in the ordinary course of business;
(xi) any Contract (A) prohibiting, or purporting to limit or restrict, directly or indirectly, any Acquired Company from freely engaging in any business, including restrictions on any Acquired Company’s ability to compete, freedom to solicit customers, solicit or hire any Person or to conduct its business in any geographical area or the type or line of business in which it may engage, (B) providing “most favored nation” or other provisions where the pricing, discounts or benefits to any customer of an Acquired Company changes based on the pricing, discounts or benefits offered to other customers, (C) granting a right of first refusal or right of first offer to purchase any line of business, Equity Securities or material portion of any of the assets or properties of an Acquired Assets, Company or (D) establishing an exclusive sale or purchase obligation with respect to any obligation or geographical area;
(xii) any Contract that provides for the indemnification of any Person by any Acquired Company (other than clinical trial agreements and related ancillary agreements with public institutions; andContracts entered into in the ordinary course of business the primary purpose of which is not to provide for indemnification);
(Oxiii) any other Contract that is (A) containing an agreement by an Acquired Company to provide any Person with access to the source code for any Company Software or (B) between an Acquired Company and an escrow agent providing for the placement of the source code for any Company Software into escrow;
(xiv) any Contract with a Significant Customer; or
(xv) any Contract material to the Development, manufacture Acquired Companies or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien the Business and not otherwise set forth on any Acquired Asset, (iv) general administration expenses, or (v) insuranceSchedule 3.16(a).
(iib) All True and complete copies, or in the case of oral Contracts, a true and complete written description of the material terms and conditions of the Contract, of all Material Contracts and any amendments thereto have been provided to Buyer. All Material Contracts are valid and in full force and effect in accordance with the terms of such Material Contract and constitute legal, valid and binding agreements obligations of Sellerthe applicable Acquired Company and the other parties thereto, and are enforceable against the Acquired Company in accordance with their respective terms, subject to the Enforceability ExceptionExceptions. Other than Material Contracts entered into on behalf No Acquired Company is in default in complying with any material provisions of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default , nor has any Acquired Company received notice of any such material default, and, to the Knowledge of the Material Contracts Acquired Companies, no condition, event or Nondisclosure Agreementsfacts exist which, and no event has occurred that with notice or notice, lapse of time, time or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreementon the part of any Acquired Company. No party to any Material Contract has repudiated in writing provided notice of or, to the Knowledge of Sellerthe Acquired Companies, otherwise provided notice threatened any cancellation, termination, acceleration, adverse amendment, adverse modification or non-renewal of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementContract.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Business Combination Agreement (KORE Group Holdings, Inc.)
Material Contracts. (a) Except for Contracts listed on Schedule 3.8, there is no Contract to which Seller, or to Seller’s Knowledge, a Related Entity is a Party which is:
(i) Section 5.1(i)(ia Contract with any labor union or association;
(ii) a note, loan, credit agreement or other Contract relating to the borrowing of money (including derivative or hedging instruments) by Seller or the Related Entities in connection with the Business or to the direct or indirect guarantee or assumption by Seller of the Disclosure Schedules sets forth obligation of any other Person related thereto with respect to the Business;
(iii) a true and accurate list lease or similar agreement under which Seller or a Related Entity is a lessee of, or holds or operates, any real property owned by any third party;
(iv) a Contract involving future payment for goods or services by Seller or a Related Entity of each more than $50,000 annually;
(v) a Contract involving the obligation of Seller or a Related Entity to deliver in the future goods or services for payment of more than $50,000 annually;
(vi) a Contract evidencing any Lien on any of the Purchased Assets (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Permitted Liens);
(vii) an executory Contract with for the same Third Party and that do not constitute an Assumed Liability) in effect as sale of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Purchased Assets or the Development, manufacture, or Commercialization any assets of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations Related Entity other than any of the following entered into Inventory in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets or for the sole purpose grant to any Person of any preferential rights to purchase any Purchased Assets or any assets of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, Related Entity other than any of the following entered into Inventory in the Ordinary Course of Business andBusiness;
(viii) a Contract for a joint venture, strategic alliance, partnership or sharing of profits, in each case that are involving equity ownership by Seller or a Related Entity, or a Contract relating to a licensing arrangement or sharing of proprietary information involving Seller or a Related Entity outside of the Ordinary Course of Business;
(ix) a Contract containing covenants of Seller or a Related Entity not Acquired Business Contracts 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 Seller or a Related Entity in any line of business or in any geographical area or not to solicit or hire any Person with respect to employment;
(x) a Contract relating to the acquisition (by merger, purchase of stock or assets or otherwise) by Seller or a Related Entity of the capital stock or any operating business or material assets (excluding goods and are deemed Excluded Liabilities: services acquired in the Ordinary Course of Business) of any other Person; or
(xi) a Tax sharing agreement.
(b) Each Assigned Contract (i) standalone indemnity arrangements with clinical trial sites constitutes a valid and binding obligation of Seller or clinical trial investigators; (ii) powers the Related Entities party thereto, subject to legal rights of attorney, letters rescission due to a vice of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real propertyconsent, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, is in full force and effect and (iii) indebtedness, is not terminable by the other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All party thereto by reason of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contracttransaction contemplated by this Agreement. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Assigned Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Insituform Technologies Inc)
Material Contracts. (i) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, except for any Contracts filed as an exhibit to any Company SEC Document or as set forth on Section 4.19 of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or bound by (Aeach, a “Material Contract”):
(i) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Liabilities of Seller SEC);
(ii) any partnership, limited liability company, joint venture or other similar agreement or arrangement;
(iii) any Contract relating to the IQVIA Agreement are $3,800,000acquisition or disposition of any business or division thereof (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which amount is net the Company or any of all deposits its Subsidiaries has continuing material obligations (including the deposit referenced in clause (B“earn-outs”, contingent purchase price, deferred purchase price or any outstanding indemnification obligation)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.;
(iv) Section 5.1(i)(ivany Contract that (A) purports to limit in any material respect the freedom of the Disclosure Schedules sets forth an accurate Company to compete in any line of business or with any Person or in any geographic region, (B) grants “most favored nation” status or contains “exclusivity” requirements, obligations or similar provisions that, at or after the Effective Time, would purport to apply to Parent or any of its Affiliates, or (C) requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contains “take or pay” provisions that, in either case, are material to the Company and complete list its Subsidiaries, taken as a whole;
(v) any material agreement under which the Company grants to a Third Party or receives from a Third Party any material right, license or covenant not to ▇▇▇ with respect to Intellectual Property, but excluding (x) non-exclusive licenses granted to customers, suppliers and vendors in the ordinary course of all outstanding accrued trade payables under business, (y) licenses in respect of click-wrap, shrink-wrap and commercially available “off-the-shelf software” or software-as-a-service that are generally commercially available and (z) open source software licenses;
(vi) any material agreement providing for the Acquired Business discovery, creation, or development of any material Company Intellectual Property (other than Contracts as with employees or independent contractors of the date hereofCompany or any of its Subsidiaries in the ordinary course of business);
(vii) any Contract relating to indebtedness for borrowed money or any financial guarantee by the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $10,000,000;
(viii) any Contract for the purchase, sale or lease of supplies, goods or products or for the furnishing or receipt of services, in each case, which provides for payments to or by the Company and its Subsidiaries that exceed $5,000,000 individually or $10,000,000 in the aggregate;
(ix) any shareholders, investors rights, registration rights or similar agreement or arrangement;
(x) any Contract related to any settlement of any Proceeding in an amount in excess of $1,000,000 since January 1, 2019, other than claims defended and settled by insurance companies;
(xi) any collective bargaining Contract or similar Contract with a labor union, labor organization or works council; or
(xii) any Contract which (A) provides for payments to or by the Company or any of its Subsidiaries that exceed $5,000,000 individually or $10,000,000 in the aggregate or (B) will require payments by the Company or any of its Subsidiaries that exceed $5,000,000 individually or $10,000,000 in the aggregate, in each case, within the 12 month period following the Effective Time and that are not cancelable by the Company or its Subsidiaries without liability on ninety (90) or fewer days’ notice to the other party thereto.
Appears in 1 contract
Material Contracts. (a) Except for this Agreement, Contracts filed as exhibits to the Company SEC Documents or as set forth in Section 4.20 of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by:
(i) Section 5.1(i)(iany “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) any Contract between the Company or any Subsidiary of the Company, on the one hand, and any officer, director or affiliate (other than a wholly owned Subsidiary of the Company) of the Disclosure Schedules sets forth a true Company (or of any Subsidiary of the Company) or any of their respective “associates” or “immediate TABLE OF CONTENTS family” members (as such terms are defined in Rule 12b-2 and accurate list Rule 16a-1 of each the Exchange Act), on the other hand, including (but not limited to) any Contract pursuant to which the Company or any Subsidiary of the Company has an obligation to indemnify such officer, director, affiliate or family member, but not including any Company Benefit Plans;
(iii) any Contract that imposes any restriction on the right or ability of the Company or any of its Subsidiaries to compete in any material respect (or that following the First Effective Time will restrict the ability of Parent and its Subsidiaries (other than purchase orders issued by Seller the Company and its Subsidiaries) to compete) with any other person in any line of business, therapeutic area or geographic region or that contains any standstill or similar agreement pursuant to which the Company or its Subsidiaries has agreed not to acquire or dispose of the securities of another person;
(iv) any Contract that obligates the Company or its Subsidiaries in any material respect (or following the First Effective Time, obligates Parent or its Subsidiaries (other than the Company and its Subsidiaries)) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” or similar covenants;
(v) any material Contract that relates to the research, development, distribution, marketing (excluding Contracts with agencies that generate advertising disease awareness or marketing materials), supply or manufacturing of any of the Lead Product Candidates;
(vi) any acquisition or divestiture Contract or material licensing agreement that contains indemnities or other obligation including “earnout” or other contingent payment obligations that would reasonably be expected to result in the receipt or making of future payments in excess of $5,000,000 in the twelve (12)-month period following the date hereof;
(vii) any Collective Bargaining Agreement to which the Company or a Company Subsidiary is a party;
(viii) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $5,000,000;
(ix) any Contract that grants any right of first refusal, right of first offer or similar right to a Third Party third party (including stockholders of the Company) with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(x) any Contract that are ancillary to another written Contract provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of assets in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and with the same Third Party and that do not constitute an Assumed Liability) in effect any outstanding obligations as of the date of this Agreement that are material to which Seller is a party the Company or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories its Subsidiaries;
(the “Material Contracts”):
xi) (A) any joint venture, partnership or limited liability company agreement or other similar Contract establishing a relating to the formation, creation, operation, management or control of any joint venture venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries, and (B) any strategic alliance, collaboration, co-promotion or like arrangementresearch and development project Contract, or involving a sharing with another Person which, in the case of profitsclause (B), losses, costs, royalties, milestone payments, or Liabilities of Seller relating is material to the Acquired Assets or the DevelopmentCompany and its Subsidiaries, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialstaken as a whole;
(Bxii) any Contract containing covenants prohibiting expressly limiting or limiting restricting the right to compete or engage in any aspect ability of the Product Operations Company or prohibiting any of its Subsidiaries (A) to make distributions or restricting Seller’s ability declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (B) to conduct make loans to the Product Operations with Company or any Person of its Subsidiaries, or in (C) to grant liens on the property of the Company or any geographical areaof its Subsidiaries;
(Cxiii) any Contract granting most favored nation that obligates the Company or exclusive rights relating any of its Subsidiaries to make any Compound loans, advances or Product to capital contributions to, or investments in, any other Personperson in excess of $1,000,000 individually or $5,000,000 in the aggregate in the next twelve (12) months;
(Dxiv) any Contract pursuant to which Seller has obtained settlement agreement (A) involving more than $50,000 or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant B) not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course ordinary course of Business andbusiness, in each case with the former employees of the Company or its Subsidiaries or independent contractors in connection with the cessation of such employee’s or independent contractor’s employment; and TABLE OF CONTENTS (xv) any Contract (A) granting the Company or one of its Subsidiaries any right to use any (i) Intellectual Property directly relating to the Lead Product Candidates or (ii) material Intellectual Property (other than Intellectual Property covered by clause (A)(i)), in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: other than licenses in respect of commercially available software, (B) pursuant to which the Company or one of its Subsidiaries grants any third person the right to use (except pursuant to material transfer agreements), enforce or register any (i) Nondisclosure Agreements; Intellectual Property directly related to the Lead Product Candidates, or (ii) services agreements containing non-exclusive licenses to material Intellectual Property Rights included (other than Intellectual Property covered by clause (B)(i)), in each case that is owned by the Acquired Assets for Company or its Subsidiaries, including any license agreements, coexistence agreements and covenants not to ▇▇▇ or (C) restricting the sole purpose right of the Company or its Subsidiaries to use, register, transfer, license, distribute or enforce any material Intellectual Property that is owned by the Company or its Subsidiaries. All contracts of the types referred to in clauses (i) through (xv) above (whether or not set forth on Section 4.20 of the Company Disclosure Schedule) are referred to herein as “Company Material Contracts.” Except as stated otherwise in Section 4.20 of the Company Disclosure Schedule, the Company has made available to Parent prior to the date of this Agreement a service provider performing services for or complete and correct copy of each Company Material Contract as in effect on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;.
(Eb) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract under which Seller pays or receives milestone or royalty payments relating and, to the knowledge of the Company, no other party to any Compound Company Material Contract is in breach of or Product or any Product IP;
(F) any Contract relating to default under the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations terms of any other Person by Seller relating to any Compound Company Material Contract and, since December 31, 2012, no event has occurred or Product or any Acquired Assets;
(G) any Contract entered into by Seller not occurred through the Company’s or any of its Affiliates in settlement Subsidiaries’ action or inaction or, to the knowledge of the Company, through the action or inaction of any Legal Proceeding or other dispute relating to the Acquired Assets third party, that with notice or the Product Operations, including lapse of time or both would constitute a breach of or default under the conduct terms of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or ProductCompany Material Contract, in each case, except as currently conducted by Sellerhas not had and would not, other than any Contract relating individually or in the aggregate, reasonably be expected to have, a Company Material Adverse Effect. Except as has not had and would not, individually or in the aggregate, reasonably be expected to have, a Company Material Adverse Effect, (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the each Company Material Contracts are Contract is a valid and binding agreements obligation of Sellerthe Company or the Subsidiary of the Company that is party thereto and, enforceable to the knowledge of the Company, of each other party thereto, and is in accordance with their termsfull force and effect, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and Exceptions; (ii) there are no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing disputes pending or, to the Knowledge knowledge of Sellerthe Company, otherwise provided notice of its intention threatened with respect to repudiate any provision of a Company Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
Contract; and (iii) As neither the Company nor any of its Subsidiaries has received any written notice of the date hereofintention of any other party to any Company Material Contract to terminate for default, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000convenience or otherwise any Company Material Contract.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Alexion Pharmaceuticals Inc)
Material Contracts. (ia) Except as set forth in Section 5.1(i)(i) 3.13 of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that Schedule, Sellers are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Sellerto any written (each, or by which any of the Acquired Assets is bound in the following categories (a “Material Contract” and collectively, the “Material Contracts”):
(Ai) Contract for the employment or retention of any Contract establishing a joint venture or collaborationofficer, co-promotion or like arrangementindividual employee, or involving other Person on a sharing with another Person of profitsfull-time, lossespart-time, costs, royalties, milestone payments, consulting or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsother basis;
(Bii) Contract relating to Indebtedness or to the mortgaging, pledging or otherwise placing an Encumbrance on any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect Asset of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(Ciii) Contract under which Seller is the lessee of or the holder or operator of any Contract granting most favored nation real or exclusive rights relating to any Compound or Product to personal property (other than facsimile machines, photocopiers, telephone systems and similar immaterial office equipment) owned by any other Person;
(Div) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor the lessor of or licensee of permits any Intellectual Property Rights relating third Person to hold or operate any Compound real or Product personal property owned or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of controlled by Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and ;
(v) assignment agreements assignment, license or contractual obligation to indemnify or other Contract with employeesrespect to any form of intangible Assets, including proprietary information and invention assignment agreements with employeesany Intellectual Property;
(Evi) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IPfor the sale of Assets;
(Fvii) non-competition or similar Contract which limits Seller from freely engaging in any business anywhere in the world;
(viii) Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, marketing or storage advertising of the active pharmaceutical ingredients and other raw materials for any Compound Seller products or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsservices; and
(Ob) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, Except as specifically disclosed in each case, as currently conducted by Seller, other than any Contract relating to (iSection 3.13(b) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of SellerDisclosure Schedule, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Each Seller has made available or delivered performed in all material respects all obligations required to Purchaser a correct be performed by it and complete copy of each written Material Contract. Seller is not in material default under or in breach or material default of, nor in receipt of any Claim of the default or breach under, any Material Contracts Contract to which such Seller is a party or Nondisclosure Agreements, by which any of its respective Assets may be bound; and no event has occurred that which with the passage of time or the giving of notice or lapse of time, both would result in such a default or both, would constitute a material default by Seller breach under any such Material Contract. To the Knowledge of Seller, the Sellers: (i) no other party to a any Material Contract to which either Seller is a party or by which any of its Assets may be bound is in material default under or in breach or material default of such Material Contract Contract; and (ii) no event has occurred that which with the passage of time or giving of notice or lapse of time, both would result in a default or both, would constitute a material default breach by such other party under any such Material Contract or Nondisclosure AgreementContract. No party There has repudiated in writing or, been made available to the Knowledge Buyer a copy of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As each of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced Material Contracts listed in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv3.13(b) of the Disclosure Schedules sets forth an accurate and complete list of Schedule, together with all outstanding accrued trade payables under the Acquired Business amendments, waivers or other changes thereto. With respect to any Material Contracts as that require consent of the date hereofother parties thereto, the Seller has obtained, or shall obtain on or prior to Closing, any such consents.
Appears in 1 contract
Material Contracts. (ia) Section 5.1(i)(i) of the Disclosure Schedules The “Material Contracts Schedule” attached hereto as Schedule 2.10 sets forth a true complete and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement following Contracts to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Transferred Assets is bound are bound, in each case relating exclusively or primarily to the following categories CryoScience Business or other Transferred Assets (collectively, the “Material Contracts”):
(Ai) any Contract establishing a joint venture concerning marketing of or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization research and development of any Compound of the Products, in each case, involving payments by or Product, including to the conduct Seller in excess of any clinical trials$50,000 in the twelve month period prior to the date hereof or requiring payments after the date hereof by the Seller of more than $50,000;
(Bii) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(CA) any Contract granting most favored nation or exclusive rights relating to any Compound Indebtedness or Product to any other the guaranty of another Person;
's Indebtedness, or (DB) any Contract pursuant to which Seller has obtained loaned or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating advanced money to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations Person, other than any of the following entered into sales to customers on credit in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; Business;
(iii) agreements with clinical investigators and clinical sites for the conduct of any Contract granting any Person a clinical study, which study is complete Lien on all or substantially complete at the relevant clinical sites as any material portion of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Transferred Assets;
(Giv) any Contract entered into (A) providing for any Person to be the exclusive provider of any Product or the exclusive recipient of any Product, or otherwise imposing any exclusivity obligation on the CryoScience Business, (B) containing a covenant by Seller with respect to the CryoScience Business not to (x) compete with any Person in any business in any geographic area or (y) solicit or hire any Person, or (C) including any “most favored nations” or similar pricing terms or other similar protections or assurances;
(v) any licenses with respect to Proprietary Rights (other than (A) non- exclusive licenses of Proprietary Rights granted by Seller or any prior owner of its Affiliates in settlement the CryoScience Business having annual royalty values of any Legal Proceeding less than $25,000 or other dispute relating to the Acquired Assets one-time license fees (as may be applicable) of less than $25,000 or the Product Operations, including the conduct (B) licenses of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available non-customized computer software granted to a Seller or any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any prior owner of the following entered into in the Ordinary Course of CryoScience Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorstotal replacement cost of less than $10,000);
(Jvi) any Contract for or group of related Contracts with the development, manufacture, supply, packaging, labeling, distribution, analytical testing, same party (or storage group of related parties) either (A) requiring payments after the active pharmaceutical ingredients and other raw materials for any Compound date hereof to or Product, and related quality agreementsby Seller of more than $50,000 or (B) not terminable by Seller on ninety (90) days' or less notice without penalty or Liability;
(Kvii) any Contract for the ongoing establishing or planned analytical testing creating any partnership, joint venture, limited liability company, limited liability partnership or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Productsimilar entity;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nviii) any Contract with any Governmental Authority relating to Affiliate of Seller or with any Compound director, officer, stockholder or Product employee of any Seller or any Affiliate of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsSeller; andor
(Oix) any other Contract that which is material to the Development, manufacture CryoScience Business or sale any other Transferred Asset entered into outside of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancethe Ordinary Course of Business.
(iib) All of the Each Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability ExceptionContract that is an Assumed Contract is identified as such on Schedule 2.10. Other than Material Contracts entered into on behalf of Seller, The Seller has made available or delivered to Purchaser a Buyer true, correct and complete copy copies of each written Material Contract. Seller is not in material breach or material default of any of , as amended to date.
(c) Except as specifically disclosed on the Material Contracts Schedule: (i) Seller has not received any notice challenging whether any Material Contract is legal, valid, binding, enforceable, and in full force and effect, subject to proper authorization and execution by the other party or Nondisclosure Agreementsparties thereto and except as such enforceability may be limited by the Enforceability Exceptions; and (ii) neither the Seller nor, to the Seller’s Knowledge, any other party thereto, is in breach or default under any Material Contract, except for any such breach or default that would not be material to the CryoScience Business, and no event has occurred that which with or without notice or lapse of time, time or both, both would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and thereunder. To the Seller’s Knowledge, no event has occurred or and no circumstance or condition exists, that (with notice or without the lapse of timetime or the giving of notice, or both, ) would constitute a material default by such other reasonably be expected to (i) give any party under the right to cancel or terminate or modify any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenAssumed Contract, or (ii) give any party to any Assumed Contract the Knowledge of Seller other, notice regarding any material violation right to seek damages or breach of, or default under, any Material Contract or Nondisclosure Agreementother remedies.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement
Material Contracts. (ia) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as As of the date hereof, except for any Contracts filed as an exhibit to any Company SEC Document or as set forth on Section 4.19 of this Agreement to which Seller the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or which was entered into bound by or on behalf of Seller(each, or by which any of the Acquired Assets is bound in the following categories (the a “Material ContractsContract”):
(Ai) any Contract establishing that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) any partnership, limited liability company, joint venture or collaboration, co-promotion other similar agreement or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller ;
(iii) any Contract relating to the Acquired Assets acquisition or the Development, manufacture, or Commercialization disposition of any Compound business or Productdivision thereof (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which the Company or any of its Subsidiaries has continuing material obligations (including the conduct of “earn-outs”, contingent purchase price, deferred purchase price or any clinical trialsoutstanding indemnification obligation);
(Biv) any Contract containing covenants prohibiting or limiting that (A) purports to limit in any material respect the right freedom of the Company to compete or engage in any aspect line of the Product Operations business or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areageographic region, (B) grants “most favored nation” status or contains “exclusivity” requirements, obligations or similar provisions that, at or after the Effective Time, would purport to apply to Parent or any of its Affiliates, or (C) requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contains “take or pay” provisions that, in either case, are material to the Company and its Subsidiaries, taken as a whole;
(Cv) any material agreement under which the Company grants to a Third Party or receives from a Third Party any material right, license or covenant not to ▇▇▇ with respect to Intellectual Property, but excluding (x) non-exclusive licenses granted to customers, suppliers and vendors in the ordinary course of business, (y) licenses in respect of click-wrap, shrink-wrap and commercially available “off-the-shelf software” or software-as-a-service that are generally commercially available and (z) open source software licenses;
(vi) any material agreement providing for the discovery, creation, or development of any material Company Intellectual Property (other than Contracts with employees or independent contractors of the Company or any of its Subsidiaries in the ordinary course of business);
(vii) any Contract granting most favored nation or exclusive rights relating to indebtedness for borrowed money or any Compound financial guarantee by the Company or Product to any other Personof its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $10,000,000;
(Dviii) any Contract pursuant to which Seller has obtained for the purchase, sale or granted any Intellectual Property Rights included in lease of supplies, goods or products or for the Acquired Assets (furnishing or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee receipt of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andservices, in each case, which provides for payments to or by the Company and its Subsidiaries that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included exceed $5,000,000 individually or $10,000,000 in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesaggregate;
(Eix) any shareholders, investors rights, registration rights or similar agreement or arrangement;
(x) any Contract under which Seller pays or receives milestone or royalty payments relating related to any Compound or Product or settlement of any Product IPProceeding in an amount in excess of $1,000,000 since January 1, 2019, other than claims defended and settled by insurance companies;
(Fxi) any collective bargaining Contract or similar Contract with a labor union, labor organization or works council; or
(xii) any Contract relating which (A) provides for payments to or by the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates in settlement of any Legal Proceeding Subsidiaries that exceed $5,000,000 individually or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into $10,000,000 in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: aggregate or (iB) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed will require payments by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product Company or any of its Subsidiaries that exceed $5,000,000 individually or $10,000,000 in the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Productaggregate, in each case, as currently conducted within the 12 month period following the Effective Time and that are not cancelable by Sellerthe Company or its Subsidiaries without liability on ninety (90) or fewer days’ notice to the other party thereto.
(b) A copy of each Material Contract has been made available to Parent. Except for breaches, other than any Contract relating violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All each of the Material Contracts are is valid and binding agreements of Selleron the Company or its Subsidiaries, enforceable in accordance with their termsas the case may be, subject and to the Enforceability Exception. Other than Material Contracts entered into on behalf of SellerCompany’s knowledge, Seller has made available or delivered to Purchaser a correct each other party thereto, and complete copy of each written Material Contract. Seller is not in material breach or material default of full force and effect and (ii) neither the Company nor any of its Subsidiaries, nor to the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under Company’s knowledge any Material Contract. To the Knowledge of Seller, no other party to a Material Contract Contract, is in material breach or material default of such any Material Contract and no event has occurred that that, with notice or the lapse of time, time or the giving of notice or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreementthereunder.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (ia) Section 5.1(i)(i4.19(a) of the Company Disclosure Schedules sets forth a true Schedule contains an accurate and accurate complete list of each Contract (other than purchase orders issued the following Contracts to which the Company or any of its Subsidiaries is a party or by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect which such Person is, or any of its properties or assets are, bound as of the date of this Agreement hereof (each such Contract required to which Seller is a party or which was entered into by or be listed on behalf of Seller, or by which any Section 4.19(a) of the Acquired Assets is bound in the following categories (the Company Disclosure Schedule, whether or not so listed, a “Material ContractsContract”):
(Ai) any Contract establishing (A) relating to the supply or manufacturing of any Company Product, (B) under which clinical or non-clinical data is generated that would need to be included in any Regulatory Approval (or filing or application therefor) in respect of a Company Product or (C) relating to any other partnership, joint venture or venture, strategic alliance, collaboration, co-promotion material research and development project or like other similar arrangement;
(ii) any Contract (excluding Incidental Licenses) pursuant to which the Company or any of its Subsidiaries (A) obtains the right to use, or a covenant not to be sued under, any Intellectual Property Right or (B) grants the right to use, or a covenant not to be sued under, any Intellectual Property Right;
(iii) any Contract with any Governmental Authority;
(iv) any stockholders’, investor rights, registration rights, tax receivables or similar or related Contract or arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, any Contract or Liabilities of Seller arrangement relating to the Acquired Assets or the Development, manufacture, or Commercialization exercise of any Compound or Product, including the conduct voting rights in respect of any clinical trialsCompany Securities;
(Bv) any Contract containing covenants prohibiting “most favored nation” or limiting the similar preferential pricing provisions, any exclusive dealing arrangement or any arrangement that grants any right to compete of first refusal, first offer, first negotiation or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areasimilar preferential right;
(Cvi) any Contract granting most favored nation that obligates the Company (together with its Subsidiaries) to make aggregate payments in excess of (A) $250,000 in the current or exclusive rights relating to any Compound future calendar year or Product to any other Person(B) $500,000 in the aggregate;
(Dvii) any Contract (A) for the disposition of all, or any significant portion of, the assets (including any Intellectual Property Rights) or business of the Company or any of its Subsidiaries, (B) for the acquisition of, directly or indirectly, a material portion of the assets (including any Intellectual Property Rights) or business of any other Person (whether by merger, sale of stock or assets or otherwise) or (C) related to any acquisition or divestiture and that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations);
(viii) any Contract pursuant to which Seller has obtained the Company or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of its Subsidiaries has continuing obligations or interests involving the following entered into in payment of royalties or other amounts calculated based upon the Ordinary Course revenues or income of Business andthe Company or any of its Subsidiaries or any other material contingent payment obligations, in each case, case that are is not Acquired Business Contracts and are deemed Excluded Liabilities: terminable by the Company or its Subsidiaries without penalty without more than sixty (i60) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesdays’ notice;
(Eix) any Contract lease, sublease or other agreement under which Seller pays or receives milestone or royalty payments relating to any Compound or Product the Company or any Product IPof its Subsidiaries leases, subleases or licenses any real property (whether as lessor or lessee) (each, a “Lease”);
(Fx) any indemnification agreements between (A) the Company or any of its Subsidiaries and any Indemnified Person or (B) any Indemnified Person and the relevant corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise in respect of which such Indemnified Person serves or has served;
(xi) any Contract relating to indebtedness for borrowed money, any guarantees thereof or the creation granting of Liens on any Acquired Assets over the property or the guarantee assets of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialsSubsidiaries;
(Hxii) any Contract that limits Seller’s ability relating to make generally available any versions loan or other extension of credit made by the Company or any Compound or Product developed by or for Sellerof its Subsidiaries;
(Ixiii) any Contract for containing any provision or covenant limiting in any material respect the research or Development of any Compound or Product, other than any ability of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product Company or any of its Subsidiaries (or, after the Acquired Assetsconsummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (A) sell any products or services of or to any other than clinical trial agreements and related ancillary agreements Person or in any geographic region, (B) engage in any line of business or (C) compete with public institutionsor to obtain products or services from any Person, or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries); and
(Oxiv) (A) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K) or (B) any other Contract that is material to the DevelopmentCompany and its Subsidiaries, manufacture or sale of any Compound or Producttaken as a whole, in each case, as currently conducted by Seller, case ((A) and (B)) other than any Contract relating to (i) real propertyEmployment Agreements, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Plans and Contracts are valid and binding agreements of Seller, enforceable described in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse foregoing clauses of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreementthis Section 4.19(a).
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (a) The following contracts and agreements with respect to the Business shall constitute “Material Contracts” for the purposes of this Agreement:
(i) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than any contract or agreement with any Material Customer or any Material Supplier, including purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect or service level agreements open as of the date of this Agreement to which Seller is a party Date;
(ii) any contract or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
agreement (A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person that restricts the ability of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right Business to compete or engage in any aspect line of the Product Operations business or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areageographic area during any period of time, (B) pursuant to which the Business or any Transferred Entity has granted exclusive rights, (C) that contains “most favored nation” provisions in favor of any Person, or (D) that contains any exclusivity, standstill or material non-solicitation obligations in favor of any Person;
(Ciii) any Contract granting most favored nation contract or exclusive agreement that contains an option or grants to any Person any right of first refusal, right of first negotiation, right of first offer, or other similar right in favor of any person with respect to any portion of the Business or the Transferred Assets;
(iv) any contract in which any of the Seller Parties have (A) granted development rights, or marketing or distribution rights relating to any Compound Product or Product Candidate or (B) agreed to purchase a minimum quantity of goods in a material amount, or include a “take-or-pay” provision involving a material amount, relating to any other PersonProduct or Product Candidate or has agreed to purchase Inventories relating to any Product or Product Candidate exclusively from a certain party;
(Dv) any Contract contract or agreement related to the acquisition, transfer, sale or other disposition of or investment in any business or any equity interests of any Person or any material assets (whether by merger, sale of stock, sale of assets or otherwise), other than the acquisition or disposition of Inventory in the ordinary course of business consistent with past practice;
(vi) any contract or agreement that is a settlement, conciliation or similar agreement with respect to any Action, pursuant to which the Seller has obtained Parties or granted the Transferred Entities will have any Intellectual Property Rights included in the Acquired Assets (or payment obligation that would have reasonably be expected to result in payments in excess of $1,000,000 or will be subject to any limitations on the conduct of operations, after the Closing;
(vii) any joint venture, partnership, strategic alliance, collaboration or other similar contract or agreement with any third party;
(viii) any collective bargaining agreement or other contract or agreement with any labor union or organization or works council (each, a “CBA”);
(ix) all employment, bonus, severance, retention, termination, or change in control contracts or agreements or other compensatory contracts or agreements with any Business Employee at the level of senior director or above, and any contract or agreement with any Business Contractor that involves annual aggregate payments to or from the Seller Parties of at least $50,000;
(x) any contract or agreement pursuant to which any Seller Party (A) has been included in the Acquired Assets but for such Contract)granted an inbound license, including any sublicense, covenant not to enforce sue or assertother right, including any existing license agreement relating option or interest in or to any Compound Intellectual Property, Technology, Software or Data (other than licenses of generally commercially available Intellectual Property, Technology, Software or Data) that is material to the Business, any Product or Product Candidate, or (B) has granted a third party (1) an exclusive outbound license or sublicense in or to any Business Intellectual Property or Business Technology or (2) an outbound license, sublicense, covenant not to sue or other right, option or interest with respect to any Intellectual Property, Technology, Software or Data (other than any licenses granted to customers, suppliers or service providers in the ordinary course of business consistent with past practice) that is material to the Business, any Product Operations and each other Contract under which Seller is a licensor or licensee Product Candidate;
(xi) any contract or agreement for the development of any Intellectual Property Rights relating to any Compound or Product or Used in and necessary for the Product Operations operation of the Business (other than any of the following confidentiality, inventor assignment and other Intellectual Property assignment agreements with employees, consultants, subcontractors, and independent contractors entered into in the Ordinary Course ordinary course of Business business consistent with past practice);
(xii) any contract or agreement with a third party that involves annual aggregate payments to or from the Seller Parties of at least $1,000,000 with respect to the warm water Products or $2,000,000 with respect to the cold water Products and, in each case, that are cannot Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in be terminated without penalty by Seller or the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesapplicable Transferred Entity upon less than 60 days’ notice;
(Exiii) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IPTransferred Real Property Lease;
(Fxiv) any Contract relating to the creation of Liens contract or agreement which impose a Lien, other than a Permitted Lien, on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Transferred Assets;
(Gxv) any Contract entered into by Seller contract or agreement containing any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than provision requiring any of the following entered into Seller Parties to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale, or license of products or product candidates or services in the Ordinary Course ordinary course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements business consistent with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorspast practice);
(Jxvi) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for contract with any Compound or Product, and related quality agreementsGovernment Authority;
(Kxvii) any Contract for the ongoing contract or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance agreement relating to capital expenditures under which there are outstanding payment obligations of the safety database for any Compound Seller Parties (whether or Product, and any safety data exchange agreements or pharmacovigilance agreements related not contingent) that would reasonably be expected to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any result in payments in excess of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions$250,000; and
(Oxviii) any other Contract that is contract or agreement that, if terminated prior to the Closing, would reasonably be expected to be material to the DevelopmentBusiness.
(b) Section 4.11(a) of the Seller Disclosure Schedules sets forth an accurate, manufacture or sale correct and complete list of any Compound or Producteach Material Contract in effect as of the Agreement Date, and Seller has made available to Buyer accurate, correct and complete copies of, each Material Contract.
(i) Each Material Contract is a legal, valid and binding obligation of the Seller Party party thereto, as the case may be, and, to the Knowledge of Seller, each other party to such Material Contract, and is enforceable against such Seller Party and, to the Knowledge of Seller, each other party to such Material Contract, in accordance with its terms, subject, in each case, as currently conducted by Seller, other than any Contract relating to (i) real propertythe Bankruptcy and Equity Exception, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All none of the Material Contracts are valid and binding agreements of SellerSeller Parties or, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no any other party to a Material Contract is in material default under or breach or of a Material Contract, (iii) none of the Seller Parties has received any written notice of breach of a Material Contract, and (iv) each Seller Party has performed in all material default of such respects all obligations required to be performed by it under the Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute Contracts to which it is a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orand, to the Knowledge of Seller, otherwise provided notice of its intention each other party to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given performed in all material respects all obligations required to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreementbe performed by it.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Elanco Animal Health Inc)
Material Contracts. (ia) Section 5.1(i)(iSchedule 3.8(a) of the Disclosure Schedules sets forth a true and accurate list of lists each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement following Contracts to which Seller Parent and any other Asset Selling Corporation is a party party, in each case relating primarily or which was entered into by exclusively to the field of transcervical sterilization or on behalf of Seller, or by which any of to the Acquired Conveyed Assets is bound in the following categories (the such contracts and agreements being “Material Contracts”):
(Ai) any each Contract establishing a joint venture or collaboration, co-promotion or like arrangementfor the purchase of inventory, or involving a sharing other personal property with another Person any supplier or for the furnishing of profitsservices extending beyond twelve (12) months or the terms of which provide for purchases thereunder in excess of $10,000 on an annual basis;
(ii) all broker, lossesdistributor, costsdealer, royaltiesmanufacturer’s representative, milestone paymentsfranchise and agency Contracts;
(iii) all Contracts relating to indebtedness for borrowed money, or Liabilities factoring arrangements, sale and leaseback transactions, deferred purchase price of Seller property and other similar financing transactions with respect to which an Asset Selling Corporation is an obligor;
(iv) all licenses and other Contracts relating to the Acquired Assets Purchased IP Rights that require the payment of a royalty or the Developmenta license fee, manufactureas well as all research and development Contracts pursuant to which any Person has been granted any license under, or Commercialization of otherwise has received or acquired any Compound right (whether or Productnot currently exercisable) or interest in, including the conduct of any clinical trialsPurchased IP Rights;
(Bv) any Contract containing covenants prohibiting or all Contracts limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee freedom of any Intellectual Property Rights relating Asset Selling Corporation to any Compound own or Product or use the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Conveyed Assets;
(Gvi) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialsall Contracts with a Governmental Authority;
(Hvii) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements joint venture or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsagreement; and
(Oviii) any other Contract that is material to all Contracts entered into since January 1, 2009 providing for the Development, manufacture acquisition or sale disposition of any Compound or ProductConveyed Assets.
(b) Except as disclosed in Schedule 3.8(b) of the Disclosure Schedules, in each case, as currently conducted by Seller, other than any Contract relating to (i) real propertythe Termination and Release Agreement by and among the ▇▇▇▇▇▇▇▇▇ Firm, (ii) employeesOvion Inc. and Parent dated September 17, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of 2009 and the Material Contracts September 2009 Settlement Agreement are valid and binding agreements of Selleron each Asset Selling Corporation that is a party thereto, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orand, to the Knowledge of SellerParent, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any on each other Person any writtenparty thereto, or to the Knowledge of Seller other, notice regarding any and are in full force and effect; and (ii) no such Asset Selling Corporation is in material violation or breach of, or default under, any Material Contract or Nondisclosure Agreementsuch agreements to which it is a party.
(iiic) As Notwithstanding anything in this Agreement to the contrary, none of the date hereofAsset Selling Corporations makes any representation or warranty regarding the effectiveness of any assignment or partial assignment, (A) the Liabilities as applicable, or enforceability by Purchaser or its Affiliates, of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000any Assumed Contract.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Medical Systems Holdings Inc)
Material Contracts. (ia) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as As of the date of this Agreement; (iv) licenses , neither the Company nor any of its Subsidiaries is party to commercially available software or cloud bound by any contract, arrangement, commitment or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;understanding that:
(Ei) materially limits or otherwise materially restricts in any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to material respect the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates Subsidiaries (or, after the Effective Time, the Surviving Corporation or any of its Subsidiaries or purportedly Parent or any of its Subsidiaries) from (A) engaging or competing in settlement any material line of business, in any Legal Proceeding geographical location or with any Person, (B) selling any products or services of or to any other dispute relating to the Acquired Assets Person or the Product Operations, including the conduct of in any clinical trialsgeographic region or (C) obtaining products or services from any Person;
(Hii) includes any Contract material “most favored nations” terms and conditions (including, without limitation, with respect to pricing), any material exclusive dealing arrangement, any material arrangement that grants any material right of first refusal or material right of first offer or similar material right or that limits Seller’s or purports to limit in any material respect the ability of the Company or its Subsidiaries (or, after the Effective Time, the Surviving Corporation, Parent or any of their respective Subsidiaries) to make generally available any versions own, operate, sell, transfer, pledge or otherwise dispose of any Compound material assets or Product developed by or for Sellerbusiness (excluding, in respect of each of the forgoing, customary joint operating agreements);
(Iiii) any Contract is a joint venture, alliance or partnership agreement that either (A) is material to the operation of the Company and its Subsidiaries, taken as whole, or (B) would reasonably be expected to require the Company and its Subsidiaries to make expenditures in excess of $100 million in the aggregate during the 12-month period following the date hereof;
(iv) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than those between the Company and its Subsidiaries) relating to indebtedness for the research or Development borrowed money in an amount in excess of any Compound or Product$50 million individually;
(v) is a Derivative contract, other than any such Derivative that expires by its terms on or before December 31, 2010;
(vi) is an acquisition agreement, asset purchase or sale agreement, stock purchase or sale agreement or other similar agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date hereof to be in excess of $50 million or (B) any other Person has the right to acquire any assets of the following entered into Company or any of its Subsidiaries (or any interests therein) after the date of this Agreement with a fair market value or purchase price of more than $50 million;
(vii) is an agreement providing for the sale by the Company or any of its Subsidiaries of Hydrocarbons which contains a material “take-or-pay” clause or any similar material prepayment or forward sale arrangement or obligation (excluding, “gas balancing” arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor;
(viii) is an agreement pursuant to which the Company and its Subsidiaries have paid amounts associated with any Production Burden in excess of $100 million during the Ordinary Course of Business and, immediately preceding fiscal year or with respect to which the Company reasonably expects that it and its Subsidiaries will make payments associated with any Production Burden in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside any of the U.S. next three succeeding fiscal years that could, based on current projections, exceed $100 million per year;
(other ix) is a transportation agreement involving the transportation of more than local representative agreements and legal representative agreements 100 MMcf (or similar arrangements for local representation entered into with the MMBtu equivalent) of Hydrocarbons per day (calculated on a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorsyearly average basis);
(Jx) any Contract for the developmentis a joint development agreement, manufacture, supply, packaging, labeling, distribution, analytical testingexploration agreement, or storage acreage dedication agreement (excluding, in respect of each of the active pharmaceutical ingredients foregoing, customary joint operating agreements) that either (A) is material to the operation of the Company and other raw materials for any Compound its Subsidiaries, taken as whole, or Product, (B) would reasonably be expected to require the Company and related quality agreements;its Subsidiaries to make expenditures in excess of $100 million in the aggregate during the 12-month period following the date hereof; or
(Kxi) any Contract for the ongoing is a settlement or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract similar agreement with any Governmental Authority relating or order or consent of a Governmental Authority to any Compound or Product which the Company or any of its Subsidiaries is subject involving future performance by the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) Company or any other Contract that of its Subsidiaries which is material to the DevelopmentCompany and its Subsidiaries, manufacture or sale of any Compound or Product, taken as a whole; (each such contract listed in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All Section 4.22 of the Material Contracts are valid Company Disclosure Letter and binding agreements any contract of Seller, enforceable in accordance with their terms, subject the Company or any of its Subsidiaries that is a material contract required to be filed as an exhibit to the Enforceability Exception. Other than Material Contracts entered into on behalf Company 10-K pursuant to Item 601(b)(10) of SellerRegulation S-K of the SEC, Seller has made available or delivered to Purchaser a correct and complete copy of each written “Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement”).
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Exxon Mobil Corp)
Material Contracts. (i) Except for this Agreement, Section 5.1(i)(i4.10(a) of the NIC Disclosure Schedules sets forth Letter contains a true complete and accurate list correct list, as of the date hereof, of each Contract (other than purchase orders issued by Seller described below in this Section 4.10(a) under which NIC or any NIC Subsidiary is a party or to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) which any of their respective properties or assets is subject, in each case, in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Sellerhereof, or by which any other than NIC Plans (each Contract of the Acquired Assets is bound type described in this Section 4.10(a), whether or not set forth on Section 4.10(a) of the following categories (the NIC Disclosure Letter, being referred to herein as a “Material ContractsContract”):
): (Ai) each Contract that limits in any Contract establishing a joint venture material respect the freedom of NIC or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right NIC Subsidiary to compete in more than one state with any Person or engage in any aspect line of the Product Operations business or prohibiting sell, supply, or restricting Seller’s ability to conduct the Product Operations with distribute any Person product or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (service, or that would have been included otherwise has the effect of restricting NIC or any NIC Subsidiary from the development, marketing or distribution of products and services, in the Acquired Assets but for such Contract)more than one state, including any covenant not to enforce or assertin each case, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following project-specific teaming agreements, Contracts with prime contractors or subcontractors, or similar Contracts entered into in the Ordinary Course in the ordinary course of Business andbusiness; (ii) each acquisition or divestiture Contract that contains (A) indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making by NIC or any NIC Subsidiary of future payments in excess of $1,000,000 or (B) earn-out, contingent payment, or similar provisions requiring future payments by or to NIC or any NIC Subsidiary; (iii) each Contract that gives any Person the right to acquire any assets of NIC or any NIC Subsidiary (excluding ordinary course commitments to purchase NIC Products or custom applications) after the date hereof with consideration of more than $1,000,000; (iv) any Contract to put source code for any NIC Product in escrow with a third Person on behalf of a licensee or contracting party, and any other Contract to provide source code for any NIC Product to any third Person (other than an employee, contractor, agent or Representative of NIC or a NIC Subsidiary in the ordinary course of business); (v) any settlement agreement or similar Contract restricting in any respect the operations or conduct of NIC or any NIC Subsidiary, in each case, that are not Acquired Business Contracts is material to NIC and are deemed Excluded Liabilities: (i) Nondisclosure Agreementsits Subsidiaries, taken as a whole; (iivi) services agreements containing non-exclusive licenses each Contract, other than customer, supplier and vendor Contracts, not otherwise described in any other subsection of this Section 4.10(a) pursuant to Intellectual Property Rights included which NIC or any NIC Subsidiary is obligated to pay, or entitled to receive, payments in excess of $1,000,000 in the Acquired Assets for 12-month period following the sole purpose of a service provider performing services for or on behalf of Sellerdate hereof; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(Hvii) any Contract that limits Seller’s ability obligates NIC or any NIC Subsidiary to make generally available any versions capital investment or capital expenditure outside the ordinary course of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development business and in excess of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators$1,000,000; (iiviii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other each Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach Customer Agreement or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Supplier Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.;
Appears in 1 contract
Material Contracts. (a) SCHEDULE 4.12(a) sets forth a complete list of all contracts, commitments and obligations (whether written or oral) of Tranzparts that are material to Tranzparts, or the Business, including without limitation the following (collectively with the Material Leases and the Employment Agreements, the "Scheduled Contracts"):
(i) Section 5.1(i)(i) each agreement of Tranzparts that requires payment or incurrence of Liabilities, or the Disclosure Schedules sets forth a true and accurate list rendering of each Contract (other than purchase orders issued services, by Seller Tranzparts, subsequent to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement of more than Fifty Thousand Dollars ($50,000);
(ii) all Contracts relating to, or evidences of, or guarantees of, or providing security for, indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset);
(iii) all license, sale, distribution, commission, marketing, agent, franchise, technical assistance or similar agreements relating to or providing for the marketing and/or sale of the products or services to which Seller Tranzparts is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets Tranzparts is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsotherwise bound; and
(Oiv) any all partnership, joint venture, teaming arrangements or other similar Contracts, arrangements or agreements.
(b) Tranzparts and Shareholders have made true and correct copies of all such Scheduled Contracts available to Buyer. Except as disclosed in SCHEDULE 4.12(B), each Scheduled Contract that is material a legal, valid and binding obligation of Tranzparts, and, to the Developmentbest knowledge of Tranzparts and Shareholders, manufacture or sale of any Compound or Producteach other party thereto, enforceable against each such party thereto in each case, as currently conducted by Seller, other than any Contract relating to accordance with its terms except (i) real propertyas rights to indemnity hereunder may be limited by federal or state securities laws or the public policies embodied therein, (ii) employeesas such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or employee compensation or benefit matterssimilar laws affecting the enforcement of creditors' rights generally, including any Employee Benefit Plan, and (iii) indebtednessas the remedy of specific performance and other forms of injunctive relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and neither Tranzparts nor any other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceparty thereto is in material default thereunder.
(iic) All of the Material Contracts are valid SCHEDULE 4.12(c) sets forth a list (by name, address and binding agreements of Seller, enforceable in accordance with their terms, subject persons to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(ivcontact) of the Disclosure Schedules sets forth an accurate 10 largest customers and complete list 10 largest suppliers of all outstanding accrued trade payables under Tranzparts for the Acquired Business Contracts as 12-month period ended December 31, 1995 together with the approximate dollar amount of sales to or purchases from such Persons during said period and a summary description of the date hereofproducts purchased.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aftermarket Technology Corp)
Material Contracts. (a) Except for the Contracts disclosed in Schedule 3.12(a) or any other Schedule to this Agreement or Contracts which will either be terminated at or prior to the Closing or as to which none of Buyers or the French Subsidiaries will have any actual or contingent liability or obligation following the Closing, neither Seller nor any Participating Subsidiary is a party to or subject to:
(i) Section 5.1(i)(iany Contract related to the Business for the purchase of materials, supplies, goods, services, equipment or other assets providing for annual payments by Seller or any Participating Subsidiary of, or pursuant to which in the last year Seller and/or any Participating Subsidiary was required to pay, or in the next year will be required to pay, in the aggregate, United States $50,000 or more;
(ii) any sales, distribution or other similar Contract related to the Business for the sale by Seller or any Participating Subsidiary of materials, supplies, goods, services, equipment or other assets that provides for annual payments to Seller or any Participating Subsidiary of, or pursuant to which in the Disclosure Schedules sets forth last year Seller or any Participating Subsidiary was entitled to receive, or in the next year will be entitled to receive, in the aggregate United States $50,000 or more;
(iii) any partnership, joint venture or other similar multiparty Contract related to the Business involving a true and accurate list sharing of each profits, expenses or business operations;
(iv) any Contract related to the Business involving indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by an asset), except any Contract relating to indebtedness in an amount not exceeding United States $50,000 incurred in the ordinary course consistent with past practices;
(v) any license Contract (other than purchase orders issued licenses of Intellectual Property), franchise Contract or Contract in respect of similar rights related to the Business granted to or held by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):Participating Subsidiary;
(Avi) any agency, dealer, sales representative, distributorship or other similar Contract related to the Business;
(vii) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities related to the Business that limits the freedom of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right Participating Subsidiary to compete or engage in any aspect line of the Product Operations business or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaarea or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Purchased Asset, the assets of the French Subsidiary or the Purchased Shares;
(Cviii) any Contract granting most favored nation related to the Business involving capital expenditures of $25,000 or exclusive rights relating to more in any Compound particular instance or Product to for any other Personparticular project;
(Dix) any Contract, including "credit-bail" agreements, for the lease of personal property related to the Business in which Seller or any Participating Subsidiary is the lessor (but excluding bottled water cooler, Bottleless Cooler, microwave, refrigerator or coffee brewer equipment rental Contracts with Equipment Customers) or the les▇▇▇, ▇r receives the beneficial use of the leased personal property, that provides for annual payments of United States $50,000 or more;
(x) any Contract pursuant related to which the Business requiring Seller has obtained or granted any Intellectual Property Rights included in Participating Subsidiary to purchase its requirements of a particular raw material, resource or product from a particular supplier or suppliers, or to purchase all or substantially all of the Acquired Assets (output or that would have been included in the Acquired Assets but for such Contract)production of a particular supplier, including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that Contracts for utility services which are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete terminable at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into will by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialsParticipating Subsidiary;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(Ixi) any Contract for the research or Development license of any Compound or Product, other than any of the following entered into Intellectual Property included in the Ordinary Course of Business andPurchased Assets, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. including computer software (other than local representative agreements and legal representative agreements "shrink wrap" or similar arrangements "click wrap" licenses for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditorsreadily available, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorsstandardized computer software);
(Jxii) any Contract related to the Business for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, purchase of water from any Person or storage of the active pharmaceutical ingredients and other raw materials for with respect to any Compound or Product, and related quality agreementsWater Source;
(Kxiii) any Contract for of sponsorship exclusively related to the ongoing Business (including sponsorship of public events, public facilities, sports teams or planned analytical testing charitable or storage of biological specimens collected from subjects participating in clinical trials of any Compound other causes, whether with or Product;without associated "pouring rights"); or
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(Oxiv) any other Contract that related to the Business which either (x) is not terminable by Seller or the relevant Participating Subsidiary without penalty upon thirty (30) days' notice or less and involves a commitment over the remaining term of United States $50,000 or more by Seller or the relevant Participating Subsidiary; or (y) is otherwise material to the DevelopmentU.S. Business or the European Business, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenindividually, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementBusiness taken as a whole.
(iiib) As of the date hereofExcept as provided in Schedule 3.12(b), (Aeach Contract disclosed in any Schedule to this Agreement or required to be disclosed pursuant to Section 3.12(a) the Liabilities is a valid and binding agreement of Seller relating or the Participating Subsidiary that is a party to such Contract and is in full force and effect. Neither Seller or the IQVIA Agreement are $3,800,000relevant Participating Subsidiary nor, which amount to Seller's knowledge, any other party to such Contract is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available default in any material respect under the IQVIA Agreement in an amount equal to $2,480,000terms of any such Contract.
(ivc) Section 5.1(i)(iv) Except as otherwise specified in Schedule 3.12(a), true and complete copies of all written Contracts disclosed in any Schedule to this Agreement, including all amendments, and accurate and materially complete summaries of all unwritten Contracts disclosed in any Schedule to this Agreement, have been made available to Buyer Representative or to one or more of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereofBuyers.
Appears in 1 contract
Sources: Master Agreement (Ionics Inc)
Material Contracts. (ia) Section 5.1(i)(iExcept as set forth on Schedule 3.08(a) of the Seller Disclosure Schedules sets forth a true Schedules, and accurate list of each Contract (other than purchase orders issued by Seller with respect to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liabilityclause (v) in effect except for any Employee Plans), as of the date Agreement Date, the Target Companies are not a party to and, with respect to Contracts relating to the Business, neither Seller nor any Affiliate of this Agreement to which Seller (other than the Target Companies) is a party or which was entered into by or on behalf of Seller, or by which any to Contracts of the Acquired Assets is bound in following types (including any Contract of the following categories types that is expired by its terms but under which business is currently being conducted (the a “Material Expired Operational Contract”) being referred to herein as “Material Contracts”):
(i) any Contract that provides for payment to a Target Company for the provision of goods or the performance of services in an amount in excess of One Million Dollars ($1,000,000) annually;
(ii) except for Contracts with Company Employees or independent contractors, any Contract for the provision of goods or the performance of services requiring payments by a Target Company in excess of One Million Dollars ($1,000,000) annually;
(iii) any partnership, joint venture, strategic alliance, joint development, limited liability company or other similar Contract with any Person other than a Target Company;
(iv) any Contract that relates to any interest rate, foreign currency swap, derivative, hedging or similar transactions with respect to the Target Companies or the Business;
(v) any (A) written employment or consulting Contract executed by a current Company Employee or other individual service provider of the Target Companies (other than offer letters or Contracts with Company Employees or individual service providers that may be terminated upon notice of sixty (60) days or less without termination or severance obligations or Contracts with Company Employees or individual service providers of indeterminate duration terminable upon such notice as is required by Applicable Law) providing for a base salary or consulting fee in excess of One Hundred and Seventy-Five Thousand Dollars ($175,000) annually, (B) Collective Bargaining Agreement or (C) Contract pursuant to which the Target Companies are or may become obligated to make or provide any change in control, retention or severance payment or benefit to a Company Employee in connection with the Contemplated Transactions in excess of what is required under Applicable Law;
(vi) any Contract relating to the disposition, acquisition, license, sublicense, assignment, transfer, lease, sublease, mortgage or pledge of a material portion of the assets (other than the purchase or sale of inventory in the ordinary course of business or the sale of obsolete assets and other than relating to Leased Real Property) of, or any Equity Interest in, (A) any Contract establishing a joint venture Person or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization any business enterprise of any Compound Person or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaTarget Company;
(Cvii) any Real Property Lease used by the Target Companies that is operated as a distribution center or headquarters location or a distribution off-site storage location;
(viii) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Personwith a Material Supplier;
(Dix) any Contract pursuant (A) relating to which Seller has obtained Indebtedness for borrowed money incurred by a Target Company or granted any Intellectual Property Rights included primarily with respect to the Business in an amount not to exceed in the Acquired Assets aggregate, when taken together with any other Contracts relating to Indebtedness, One Million Dollars ($1,000,000) or that would have been included any associated Lien encumbering any assets or properties of any Target Company (other than Permitted Liens) or (B) under which any Target Company has made advances or loans to, or has guaranteed the obligations (whether by bonds, letters of credit or otherwise) of, any Person other than a Target Company (except for loans or advances made to Company Employees in the Acquired Assets but ordinary course of business) in an amount not in excess of One Hundred Thousand Dollars ($100,000);
(x) any Contract that provides for such Contract)capital expenditures or commitments by a Target Company in an amount in excess of Five Hundred Thousand Dollars ($500,000) after the Closing Date;
(xi) any Contract (A) involving exclusivity, including any covenant not to enforce non-competition, non-solicitation or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations agreements (other than any of the following entered into in the Ordinary Course of Business andnon-disclosure agreements and employee non-solicitation agreements, in each case, that that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included entered in the Acquired Assets for ordinary course of business) and materially restrict the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations ability of any other Target Company to conduct or engage in any line of business, to compete against any Person or operate anywhere in the world, (B) that provides for most favored customer pricing provisions, exclusive rights, rights of first refusal, special discount rights or similar rights (for clarity, excluding discounts, rebates and similar arrangements generally offered by a Target Company or Seller relating to any Compound customers in the ordinary course) or Product (C) that provides for minimum sales or any Acquired Assets;
purchase requirements (G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding for clarity, excluding minimum volume levels to achieve a rebate or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following price discount entered into in the Ordinary Course of Business andordinary course), in each case of clause (B) or clause (C), that are requires payments to a Target Company or by a Target Company in excess of One Million Dollars ($1,000,000); provided that the foregoing shall not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorneyinclude any Contract pursuant to which Target Company purchases any goods, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements products or similar arrangements items deemed “goods not for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)resale”;
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nxii) any Contract with any Governmental Authority relating that requires payments to a Target Company in excess of One Hundred Thousand Dollars ($100,000) annually;
(xiii) any Compound Related Party Contract (including any Shared Contract);
(xiv) any Contract under which any Target Company leases, subleases, holds or Product operates any personal property owned by any Person (other than a Target Company) that requires payments by a Target Company in excess of Two Hundred and Fifty Thousand Dollars ($250,000) annually;
(xv) any Contract that contains warranty, support or similar obligations of a Target Company that materially deviate from the standard Business warranties set forth on Schedule 3.23(a) of the Seller Disclosure Schedules;
(xvi) any Contract that contains any settlement, conciliation, co-existence or similar agreement in connection with a Proceeding (A) with any Governmental Authority; or (B) that would reasonably be expected to be material to a Target Company or requires a Target Company to pay consideration of more than Two Hundred and Fifty Thousand Dollars ($250,000) (net of insurance recoveries) after the Agreement Date;
(xvii) any Contract under which Seller or any of its Affiliates (including the Acquired AssetsTarget Companies) (A) grants to another Person a license or other right to use any Owned Intellectual Property, other than clinical trial (x) non-exclusive licenses of Intellectual Property granted to customers of the Business in the ordinary course of business and incidental to the sale of products or services of the Business, and (y) agreements and related ancillary agreements with public institutions; and
where the only licenses or rights granted are nonexclusive licenses or rights granted to contractors or vendors to use Owned Intellectual Property for the sole benefit of the Business or (OB) is granted a license or other right to use any other Contract Intellectual Property of another Person that is material primarily related to the DevelopmentBusiness, manufacture other than (x) non-exclusive licenses for (1) commercially available software for which Seller and its Affiliates (including the Target Companies) pay one time or annual fees of less than Two Hundred and Fifty Thousand Dollars ($250,000) or (2) open source software and (y) non-exclusive licenses of Intellectual Property granted in the ordinary course of business and incidental to the sale of any Compound products or Productservices; or
(xviii) any outstanding or binding commitment to enter into any Contract of the type described in the foregoing subsections of this Section 3.08.
(b) With respect to each Material Contract, except (A) as set forth on Schedule 3.08(b) of the Seller Disclosure Schedules, and (B) for Contracts that are expired by their terms and do not constitute Material Expired Operational Contracts (i) each Material Contract (other than any Material Expired Operational Contract) listed (or required to be listed) on Schedule 3.08(a) of the Seller Disclosure Schedules is in full force and effect and is a legal, valid and binding obligation of the applicable Target Company party thereto, enforceable against such applicable Target Company party thereto in accordance with its terms, except, in each case, as currently conducted enforceability may be limited by Sellerbankruptcy, other than any Contract insolvency, reorganization, moratorium and similar laws now or hereinafter in effect relating to or affecting creditors’ rights generally, or by general equitable principles (i) real propertyregardless of whether such enforceability is considered in a proceeding in equity or at law), (ii) employeesthe applicable Target Company party thereto is not in default under or in breach of such Material Contracts, except for any such default or employee compensation or benefit mattersbreach as has not been, including any Employee Benefit Planand would not reasonably be expected to be, material to the Target Companies, taken as a whole, (iii) indebtedness, other than indebtedness associated with Seller does not have knowledge of any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of under any of the Material Contracts or Nondisclosure AgreementsContract by any counterparty thereto, and has not received any written notice, or to the knowledge of Seller, oral notice from any such counterparty thereto that it will (A) (x) terminate or not renew any Material Contract that has not expired or been terminated or (y) with respect to any Material Expired Operational Contract, not continue to operate under such Material Expired Operational Contract in accordance with past practice, or (B) materially and adversely modify any Material Contract, (iv) to the knowledge of Seller, there exists no event has occurred that event, occurrence, condition or act which, with the giving of notice or the lapse of time, would reasonably be expected to become a material breach or both, would constitute a material default by Seller a Target Company or, to the knowledge of Seller, a counterparty to such Material Contract, under any Material Contract (or give any Person a right of termination, cancellation, modification or acceleration of the maturity or performance under any Material Contract) and (v) there are no material unresolved disputes under any Material Contract. To the Knowledge Copies of Seller, no other party to a each Material Contract is set forth on Schedule 3.08(b) of the Seller Disclosure Schedules, which are true, complete and correct in all material breach respects, have been provided or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, made available to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementBuyer.
(iiic) As of The Target Companies are not party to any Shared Contracts other than the date hereof, (A) the Liabilities of Seller relating Shared Contracts identified on Schedule 5.03(b). The Target Companies are not party to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced any Intercompany Agreements that will not be terminated in clause (Baccordance with Section 5.03(a)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Advance Auto Parts Inc)
Material Contracts. (ia) Section 5.1(i)(iSchedules 3.17(a)(i) through (xxi) of the Disclosure Schedules sets Schedule set forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement following Contracts to which Seller any Acquired Company is a party that are in effect on the Agreement Date (collectively, whether or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound not accurately listed in the following categories (Disclosure Schedule, the “Material Contracts”):
(Ai) any Contract establishing with a joint venture (A) Significant Customer or collaboration(B) Significant Supplier;
(ii) any Contract with a customer or an end user that has substantially deviated from the Acquired Company’s standard terms of service, co-promotion copies of which has been Made Available to Parent;
(iii) any Contract providing for payments by or like arrangementto an Acquired Company (or under which the Company has made or received such payments) of more than an aggregate of $100,000 in a 12 month period or $500,000 over the life of the Contract;
(iv) any dealer, distributor, referral or similar agreement, or involving a sharing with another any Contract providing for the grant of rights to reproduce, license, distribute, market, refer or sell the Company Products to any other Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets advertising or promotion of the Development, manufacture, Business or Commercialization of pursuant to which any Compound or Product, including third parties advertise on any websites operated by the conduct of any clinical trialsCompany;
(Bv) any Contract containing covenants prohibiting offer letters or limiting Contracts with a service provider that deviates in a material way from the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaforms Made Available;
(vi) collective bargaining agreement, enterprise agreement, industrial instrument, or other Contracts with any group of employees, labor union or other employee representative body;
(vii) Contracts containing any restriction on any Acquired Company’s solicitation, hiring or engagement of any Person;
(viii) Contracts providing for the granting of any severance, retention or termination pay, or the acceleration of vesting or other benefits, to any Person;
(ix) Contracts (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, Company-Owned Intellectual Property or Company-Owned Data or which would otherwise restrict the Company from freely setting prices for the Company Products, (B) pursuant to which any of the Acquired Companies has agreed to purchase a minimum quantity of goods or services; (C) containing any non-competition covenants or other restrictions relating to the Company Products, Company-Owned Intellectual Property or Company-Owned Data, (D) that limit 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 Company Products or the Company Intellectual Property, or to make use of any Company Intellectual Property, including any grants by the Company of exclusive rights or licenses or (II) sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or services, (E) containing any “take or pay,” minimum commitments or similar provisions or (F) that is set forth on Schedule 3.13(k) of the Disclosure Schedule;
(x) Contracts pursuant to which any Acquired Company has acquired a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any Contract granting most favored nation pursuant to which it has any equity interest or exclusive rights relating to any Compound or Product to other material ownership interest in any other Person;
(xi) standstills or similar agreements containing provisions prohibiting a third party from purchasing equity interests of any Acquired Company or the assets of any Acquired Company or otherwise seeking to influence or exercise control over any Acquired Company;
(xii) Contracts for any limited liability company, joint venture, partnership, joint product development, strategic alliance, co-marketing arrangement or similar arrangement with any other Person or the making of any other investment in any other Person;
(xiii) any Company Intellectual Property Agreement, provided that for purposes of Schedule 3.17(a)(xiii) of the Disclosure Schedule, the Company shall not be required to disclose: (A) Contracts with customers and end users on the Acquired Companies’ standard terms of service, copies of which have been Made Available to Parent; (B) Contracts for Third-Party Intellectual Property licensed to the Company that is (I) generally, commercially available software and/or services; (II) not material to the Business; (III) does not comprise software and/or services that have been modified or customized for any of the Acquired Companies; and (IV) is licensed for an annual fee under $50,000; (C) non-disclosure and confidentiality agreements entered into in the ordinary course of business and consistent with past practice; (D) agreements with employees, independent contractors, consultants on the Company’s standard form of invention assignment and proprietary information agreement or consultant agreement (copies of which have been Made Available to Parent); and (E) licenses to Open Source Materials;
(xiv) any license or other Contract pursuant to which Seller the Company has obtained agreed to any restriction on the right of the Company to use or granted enforce any Company-Owned Intellectual Property Rights included or pursuant to which the Company agrees to encumber, transfer or sell rights in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating with respect to any Compound or Product or Company-Owned Intellectual Property;
(xv) any Contract providing for the Product Operations and each other Contract under which Seller is a licensor or licensee development of any software, technology or Intellectual Property Rights relating to any Compound Property, independently or Product jointly, either by or for the Product Operations Company (other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and employee invention assignment agreements with employeesemployees of the Company on the Company’s standard form of agreement, copies of which have been Made Available to Parent);
(Exvi) any confidentiality, secrecy or non-disclosure Contract under which Seller pays or receives milestone or royalty payments relating to other than any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any such Contract entered into by Seller the Company in the ordinary course of business and consistent with past practice;
(xvii) any Contract to license or authorize any third party to manufacture or reproduce any of its Affiliates in the Company Products or Company Intellectual Property;
(xviii) Contracts governing any Debt;
(xix) Contracts granting a Lien (other than Permitted Liens) upon any property or asset (including Intellectual Property) of any Acquired Company;
(xx) Contracts involving any resolution or settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsAction; and
(Oxxi) Contracts with any Governmental Body.
(b) All Material Contracts are in written form. Each Acquired Company has performed all of the obligations required to be performed by it and is entitled to all benefits under, and is not alleged to be in default in respect of, any Material Contract. Each of the Material Contracts is in full force and effect, subject only to the effect, if any, of applicable bankruptcy and other similar 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 Acquired Company or to the knowledge of the Company, with respect to any other Contract that is material to contracting party, that, with the Developmentgiving of notice, manufacture the lapse of time or sale the happening of any Compound other event or Productcondition, in each case, as currently conducted by Seller, other than any Contract relating would reasonably be expected to (i) real property, (ii) employees, become a default or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All event of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No (ii) give any third party has repudiated (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 writing ordelivery schedule under any Material Contract, (C) the right to accelerate the Knowledge maturity or performance of Seller, otherwise provided notice any obligation of its intention to repudiate any provision of a Acquired Company under any Material Contract or Nondisclosure Agreement(D) the right to cancel, terminate or modify any Material Contract. Seller No Material Contract contains any force majeure or other similar provision that would give the other party the right to terminate or would excuse such party’s performance under such Contract (whether or not the Company was then in breach of its obligations under the Contract). No Acquired Company has not given to received any written notice or received from any other Person any written, or to the Knowledge of Seller other, notice direct communication regarding any material actual or possible violation or breach of, or default under, or intention to cancel, modify, decline to renew or reduce performance under any Material Contract (including under a force majeure or Nondisclosure Agreement.
(iii) As similar provision, including as a result of the date hereofCOVID-19 pandemic). No Acquired Company has any Liability for renegotiation of any Contracts with any Governmental Body. True, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net correct and complete copies of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000Material Contracts have been Made Available.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (ia) Section 5.1(i)(i4.13(a) of the Company Disclosure Schedules Schedule sets forth all of the following Contracts to which the Company or any of the Subsidiaries is a true and accurate list of party or by which it is bound, in each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect case, as of the date of this Agreement (collectively, all Contracts required to which Seller is a party or which was entered into by or be set forth on behalf of Seller, or by which any Section 4.13(a) of the Acquired Assets is bound in the following categories (Company Disclosure Schedule, the “Material Contracts”):
(Ai) Contracts with any Stockholder or any current officer or director of the Company or any of the Subsidiaries (other than Company Benefit Plans or Contracts made in the Ordinary Course of Business on terms generally available to similarly situated non-affiliated parties);
(ii) any redemption or purchase agreements or other agreements affecting or relating to the securities of the Company or any of the Subsidiaries, including, without limitation, any agreement which includes anti-dilution rights, registration rights, voting arrangements, operating covenants or similar provisions;
(iii) Collective bargaining agreements and other Contracts with any labor union or association representing any employee of the Company or any of the Subsidiaries;
(iv) Agreements or offer letters for the employment of any officer or C-level executive of the Company or any of the Subsidiaries, and agreements for the employment of any other Person, in each case, that provide annual base salary in excess of $75,000 per year, provide for severance compensation or provide compensation as a result of, or related to, the execution of this Agreement or the consummation of the transaction contemplated hereby;
(v) Contracts for the sale of any of the assets of the Company or any of the Subsidiaries (but excluding Intellectual Property), (other than sales or dispositions of inventory or other assets in the Ordinary Course of Business);
(vi) Contracts relating to any acquisition made by the Company or any of the Subsidiaries of any operating business or the capital stock of any other Person, in each case;
(vii) joint venture, partnership, joint development or other similar agreement with a third party;
(viii) Contracts (including covenants not to s▇▇) pursuant to which the Company or a Subsidiary grants to any Person a license, sublicense or other right to any Company Intellectual Property owned or purported to be owned by the Company or a Subsidiary (other than non-exclusive licenses of Company Intellectual Property owned or purported to be owned by the Company or a Subsidiary granted in the Ordinary Course of Business in connection with the sale or distribution of the products or services of the Company and the Subsidiaries in the form of the Company’s form of customer agreement, copies of which have been provided to Buyer);
(ix) Contracts (including covenants not to s▇▇) pursuant to which any Person grants to the Company or a Subsidiary a license, sublicense or other right to any Intellectual Property (other than non-exclusive licenses to generally commercially off-the-shelf Software that is made available for a total cost of less than $5,000 per user)”;
(x) Contracts relating to the acquisition or assignment, sale or transfer of any Intellectual Property;
(xi) research and development Contracts;
(xii) any Contract establishing a joint venture pursuant to which any Legal Proceeding or collaborationother dispute is settled, co-promotion including settlement agreements and covenants not to s▇▇, that impose material restrictions on the Company or like arrangementany Subsidiary, or involving a sharing with another Person that require the Company or any Subsidiary to pay any amount in excess of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials$25,000;
(Bxiii) any Contract Contracts containing covenants prohibiting restricting or limiting the right ability of the Company or any of the Subsidiaries to (A) compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations business with any Person or in any geographical geographic area;
, (B) engage in any business practices, (C) solicit the employment of, or hire, any Contract granting most favored nation potential employees, consultants or exclusive rights relating independent contractors, or (D) acquire any product, property or other asset (tangible or intangible), or any services, from any other Person, to sell any Compound product or Product other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person;
(Dxiv) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement Contracts relating to any Compound or Product the incurrence of Debt, or the Product Operations and each other Contract under which Seller is a licensor making of, or licensee of committing to make, any Intellectual Property Rights relating to any Compound loans by the Company or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andSubsidiaries, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included involving amounts in excess of $50,000, individually or in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesaggregate;
(Exv) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
Contracts with the top fifteen (F15) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee customers of the payment Company and the Subsidiaries as determined by aggregate sale amount for each of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
fiscal year 2018, fiscal year 2019 and the four month period ending on the date hereof (G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to collectively, the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors“Top Customers”);
(Jxvi) any Contract for Contracts with the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage top ten (10) suppliers of the active pharmaceutical ingredients Company and other raw materials the Subsidiaries as determined by aggregate purchase amount for any Compound or Producteach of fiscal year 2018, fiscal year 2019 and related quality agreementsthe four month period ending on the date hereof (collectively, the “Top Suppliers”);
(Kxvii) any royalty, dividend or similar arrangement based on the revenues or profits of the Company or its Subsidiaries or any Contract for the ongoing or planned analytical testing agreement involving fixed price or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Productfixed volume arrangements;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nxviii) any Contract with any Governmental Authority relating to Body;
(xix) any Compound Contract with a term of more than sixty (60) days that is not terminable by the Company or Product a Subsidiary without penalty on notice of sixty (60) days or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsless; and
(Oxx) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to capital expenditures and involving future payments in excess of $10,000 individually or $25,000 in the aggregate;
(ixxi) real property, any Contract that contemplates or involves: (iiA) employees, the payment or employee compensation delivery of cash in an amount or benefit matters, including having a value in excess of $10,000 in the aggregate during any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, twelve month period; or (vB) insurancethe performance of services having a value in excess of $10,000 in the aggregate during any twelve month period; and
(xxii) any Real Property Leases.
(iib) All of the Each Material Contracts are Contract is a legal, valid and binding agreements obligation of Sellerthe Company or a Subsidiary, enforceable in accordance with their termsas applicable, subject and, to the Enforceability Exception. Other than Material Contracts entered into on behalf Knowledge of Sellerthe Company, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contractcounterparty thereto and is in full force and effect, except to the extent that enforceability may be limited by 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 commercially reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). Seller Neither the Company nor any of the Subsidiaries, nor to the Knowledge of the Company, any other party thereto, is not in material breach of, or in material default of under, any of the such Material Contracts or Nondisclosure AgreementsContract, and no event has occurred that with notice or lapse of time, time or both, both would constitute such a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default thereunder by the Company or any of such Material Contract and no event has occurred that with notice or lapse of timethe Subsidiaries, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Sellerthe Company, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person party thereto. Neither the Company nor any written, or to of the Knowledge of Seller other, Subsidiaries has received any notice regarding any actual or possible material violation or material breach of, material default under or default underintention to cancel, terminate, breach or materially modify any Material Contract or Nondisclosure AgreementContract.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Plug Power Inc)
Material Contracts. (i) Section 5.1(i)(i5.1(p) of the Company Disclosure Schedules Schedule sets forth a true and accurate list of each Contract not otherwise terminable by the Company or its Subsidiaries or the other party thereto on 30 days' or less notice without additional liability thereunder (each, a "Material Contract") that (i) constitutes indebtedness to, or a guarantee on behalf of, any third party for an amount in excess of $50,000, (ii) contains covenants or other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with obligations limiting the same Third Party and that do not constitute an Assumed Liability) in effect as freedom of the date of this Agreement to which Seller is a party Company or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right its Subsidiaries to compete or engage in any aspect line of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations business with any Person or in any geographical area;
area or territory, (Ciii) any Contract granting most favored nation constitutes an agreement to supply goods or exclusive rights relating services to any Compound or Product to any other Person;
a third party by the Company involving annual revenues in excess of $100,000, (Div) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant was not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course ordinary course of Business andbusiness, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employeesconstitutes an obligation of any party to supply material amounts of goods or services to the Company or its Subsidiaries which goods or services are integral and essential to the operation of the Company's business taken as a whole as currently conducted, including proprietary information and invention assignment agreements with employees;
(Evi) any Contract under which Seller pays contains a "most favored nation", "most favored nation on most favored nation" or receives milestone or royalty payments relating to any Compound or Product other similar provision that could require the Surviving Corporation, Parent or any Product IP;
of their respective Subsidiaries to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons, (Fvii) any Contract relating to concerns the creation of Liens on any Acquired Assets or employment by the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates in settlement Subsidiaries of any Legal Proceeding an individual to receive $50,000 or other dispute relating to the Acquired Assets more on an annualized basis or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(Oviii) any other Contract that is Contracts which are material to the Development, manufacture or sale of any Compound or Product, in each case, Company and its Subsidiaries taken as currently conducted by Seller, other than any a whole. Each Material Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are is a valid and binding agreements agreement of Sellerthe Company and its Subsidiaries, enforceable and to the knowledge of the Stockholders, the other parties thereto and is in accordance with their terms, full force and effect subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. There are no defaults by the Enforceability Exception. Other than Material Contracts entered into on behalf of SellerCompany or its Subsidiaries and, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default the knowledge of any of the Material Contracts or Nondisclosure AgreementsStockholders, and there are no event has occurred that with notice or lapse of time, or both, would constitute a material default defaults by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party parties under any Material Contract which defaults have not been cured or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreementwaived.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Moore Wallace Inc)
Material Contracts. (iSchedule 5(n) Section 5.1(i)(i) of the Disclosure Schedules sets forth contains a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party all material contracts and that do not constitute an Assumed Liability) in effect as of the date of this Agreement documents to which Seller is a party, true and complete copies of which have been delivered to Purchaser, or in the case of contracts with Seller's subscribers, made available to Purchaser. All the subscribers of Seller are party or which was entered into by or to a written contract with Seller; all of such contacts are substantially in the form of the contract attached hereto as Exhibit "D." Except only as to contracts and documents listed on behalf of Schedule 5(n), Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating respect to the Acquired Assets or the DevelopmentBusiness, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating is not a party to any Compound written or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: oral (i) Nondisclosure Agreementscontract not made in the ordinary course of business; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, employment contract which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding not terminable without cost or other dispute relating liability to the Acquired Assets Seller on notice of thirty (30) days or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Planless, (iii) indebtedness, other than indebtedness associated contract with any Lien on any Acquired Assetlabor union, (iv) general administration expensesbonus, deferred compensation, pension, profit-sharing, retirement, stock purchase, hospitalization, insurance or similar plan providing employee benefits, (v) lease with respect to any property, real or personal, whether as lessor or lessee, (vi) continuing contract for the future purchase of materials, supplies or equipment in excess of the requirements of the Business now booked or for normal operating inventories, (vii) contract involving the expenditure of more than one thousand dollars ($1,000), (viii) contract continuing over a period of more than one year from its date, (ix) contract interfering with Seller's exclusive and unrestricted use of any Trade Names or other Intellectual Property, or other contract, agreement or understanding, (x) inter-carrier agreement, agreement with a reseller or agreement with an agent, (xi) interconnection agreement with any local exchange carrier or interexchange carrier, or (vxii) insurance.
any agreement relating to circuits used to control the transmitters used in the Business (iicollectively,"Material Contracts") All of and the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, Business is not subject to any restriction that materially adversely affects the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of timeAssets, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach Business or material default of such Material Contract and no event has occurred that with notice its financial condition or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreementprospects.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aquis Communications Group Inc)
Material Contracts. The Company is not, and has not since the Accounting Date been, a party to or subject to (iand the Company has not agreed in principle, or made any offer or entered any negotiation, to enter into) Section 5.1(i)(i) any Contract which:
20.1 involves agency, distributorship, franchising, Intellectual Property Rights licensing, marketing rights, information sharing, manufacturing rights, consultancy, servicing, maintenance, inspection or testing;
20.2 involves partnership, joint venture, consortium, joint development, shareholders or similar arrangements;
20.3 involves hire purchase, conditional sale, credit sale, leasing, hiring or similar arrangements;
20.4 commits the Company to capital expenditure;
20.5 is of a long-term nature, being incapable of complete performance in accordance with its terms within six months after the Disclosure Schedules sets forth date on which it was entered into;
20.6 cannot readily be fulfilled or performed by the Company on time and without undue or unusual expenditure of money or effort;
20.7 the Primary Warrantors believe may result in a true and accurate list loss to the Company;
20.8 involves or is likely to involve the receipt or payment of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with price above or below the same Third Party and that do not constitute an Assumed Liability) in effect as of market price ruling at the date of this Agreement to which Seller is a party or any other obligation, restriction, expenditure or receipt of an unusual, onerous or exceptional nature, or which was entered into is of uncertain magnitude;
20.9 involves or is likely to involve an aggregate consideration payable by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets Company in excess of (Pounds)3,000;
20.10 requires the Company to pay any commission, finder's fee, royalty or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialslike;
(B) any Contract containing covenants prohibiting 20.11 is for the supply of goods by or limiting to the right to compete Company on a sale or engage in any aspect of the Product Operations return basis or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaon a consignment stock basis;
(C) any Contract granting most favored nation 20.12 is for the supply of goods and/or services by or exclusive rights relating to any Compound the Company on terms under which retrospective or Product future discounts, price reductions or other financial incentives are given by or to the Company dependent on the level of purchases or any other Personfactor;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller 20.13 is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose supply of a service provider performing goods and/or services for or by the Company which is not on behalf the current standard terms and conditions of Seller; (iii) agreements with clinical investigators and clinical sites supply, copies of which are attached to the Disclosure Letter;
20.14 is for the conduct supply of a clinical studygoods and/or services to the Company which is not on the current standard terms and conditions on which the Company buys or contracts for goods and/or services from its suppliers, copies of which study is complete or substantially complete at are attached to the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesDisclosure Letter;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to 20.15 involves the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture forward purchase or sale of any Compound currency, commodity, precious metal or Productother asset;
20.16 involves delegation of any power under a power of attorney or authorisation of any person (as agent or otherwise) to bind or commit the Company to any obligation;
20.17 restricts the freedom of the Company to provide or take goods or services by such means and to and from such persons as it may from time to time think fit;
20.18 involves otherwise than in the ordinary course of business conditions, warranties, indemnities or representations given in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employeesconnection with a sale of shares or assets, or employee compensation is a guarantee or benefit mattersindemnity in respect of the obligations of a third party, under which any liability or contingent liability is outstanding;
20.19 involves the Company in any actual or contingent liability in respect of any land or premises previously occupied by it or in which it had any interest, including but not limited to any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with liability in respect of any Lien on leasehold property at any Acquired Asset, (iv) general administration expensestime assigned or otherwise disposed of by it;
20.20 includes a term which is not, or (v) insurance.
(ii) All may not be, binding on the Company to the best of the Material knowledge information and belief of the Warrantors or any other party in consequence of the Unfair Terms in Consumer Contracts are valid and binding agreements of SellerRegulations 1994;
20.21 is an outstanding offer, enforceable tender or the like which if accepted may result in accordance with their terms, subject a loss to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller Company; or
20.22 is not on arm's length terms or is in material breach or material default of any way otherwise than in the ordinary and proper course of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementCompany's business.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (i) Section 5.1(i)(i) Schedule 2.23 of the Disclosure Schedules Letter sets ------------------ ------------- forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement all contracts, agreements or arrangements to which Seller the Company or any of its Subsidiaries is a party or otherwise bound (i) which was entered into by involve payment or on behalf receipt of Seller, or by which any an amount in excess of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage US$1,000,000 in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
calendar year; (Cii) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller the Company or any Company Subsidiary has obtained acquired or granted any Intellectual Property Rights included in disposed of another business entity or all or substantially all of the Acquired Assets assets thereof; (or that would have been included in the Acquired Assets but for such Contractiii) relating to indebtedness (including sale and leaseback and capitalized lease transactions and other similar financing transactions), including or guarantees of indebtedness, providing for payment or repayment in excess of US$500,000; (iv) providing for the indemnification by the Company or any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of its Subsidiaries of any Intellectual Property Rights relating Person in any amount material to any Compound or Product or the Product Operations other than any of the following Company, except those entered into in the Ordinary Course ordinary course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreementsbusiness; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employeesany material joint venture, including proprietary information and invention assignment agreements with employees;
partnership or similar documents or agreements; (Evi) any Contract under which Seller pays limiting or receives milestone or royalty payments relating purporting to any Compound or Product or any Product IP;
(F) any Contract relating to limit the creation of Liens on any Acquired Assets or the guarantee ability of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates in settlement Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any Legal Proceeding or other dispute relating assets having an aggregate value in excess of US$500,000; (vii) which purports to limit in any respect the Acquired Assets manner in which, or the Product Operationslocalities in which, including any business may be conducted; (viii) providing for future payments that are conditioned, in whole or in part, on a change of control of the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound Company or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreementsits Subsidiaries; and (vix) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for not made in the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage ordinary course of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that business which is material to the Development, manufacture Company and its Subsidiaries taken as a whole or sale of any Compound which would prohibit or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All materially delay the consummation of the transactions contemplated by this Agreement (collectively, the "Material Contracts are Contracts"). Each Material Contract is valid and binding agreements of Selleron the Company (or, enforceable in accordance with their terms, subject to the Enforceability Exceptionextent any of its Subsidiaries is a party, such Subsidiary) and is in full force and effect. Other than Material Contracts entered into on behalf The Company and each of Seller, Seller has made available or delivered its Subsidiaries have in all material respects performed all obligations required to Purchaser a correct and complete copy of be performed by them to date under each written Material Contract. Seller is not in material breach or material default of ; and neither the Company, nor any of the Material Contracts or Nondisclosure Agreementsits Subsidiaries, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To nor to the Knowledge of Sellerthe Company, no any other party to a Material Contract Contract, is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orContract; nor, to the Knowledge of Sellerthe Company, otherwise provided does there exist any condition which with the passage of time or the giving of notice of its intention to repudiate any provision of or both would result in such a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenviolation, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default underthereunder, in any event which breach or default could have a Company Material Contract or Nondisclosure Agreement.
(iii) As of Adverse Effect. The Company has provided the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net Purchasers with true and complete copies of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000Material Contacts.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Regulation S Stock Subscription Agreement (America Online Latin America Inc)
Material Contracts. (i) Section 5.1(i)(i4.12(a) of the Disclosure Schedules sets forth Schedule is a true and accurate complete list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as all of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories Contracts (the “Material Contracts”):
(i) [Reserved];
(ii) Contracts evidencing or relating to Indebtedness;
(iii) Contracts evidencing or relating to any obligations with respect to any Equity Interest of the Company;
(iv) Contracts with the Company’s top-five customers and top-five suppliers during the year ended December 31, 2017 (other than any purchase order, invoice, work order, statement of work or similar arrangement);
(v) the Real Property Leases;
(vi) the Newspaper IP Agreements (other than licenses of Commercial Software);
(vii) Contracts evidencing (A) employment agreements and personal services agreements with Business Employees, which agreements provide for annual salary in excess of $300,000, or (B) severance, retention, change of control or similar payments payable to Business Employees;
(viii) Contracts evidencing any Contract establishing a partnership, joint venture or similar strategic alliance or collaboration, co-promotion in which the Company or like arrangementthe Business has an interest or participates;
(ix) Contracts effecting any Related Party Transaction;
(x) Contracts relating to any litigation or similar Proceeding, or effecting a settlement of any Proceeding, involving the Business, the Company or the Transferred Assets at any time since the Applicable Date;
(xi) Contracts to which the Company is (or following the Reorganization will become) a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller party (A) relating to the Acquired Assets acquisition or the Developmentdisposition of any Equity Interests, manufacturebusiness, real property, product line or material amount of assets of any other Person, or Commercialization (B) relating to any business acquisition by the Company, in each case entered into at any time since the Applicable Date or under which there is any surviving Liability of any Compound or Product, including the conduct of any clinical trialsCompany;
(Bxii) any Contract Contracts to which the Company is (or following the Reorganization will become) a party containing covenants prohibiting “most favored nation” pricing;
(xiii) Contracts to which the Company is (or following the Reorganization will become) a party (A) limiting the right freedom of the Company or the Business to compete or engage in any aspect line of the Product Operations business, acquire any Person or prohibiting or restricting Seller’s ability to conduct the Product Operations compete with any Person or in any market or geographical area, or to solicit any individual or class of individuals for employment during any period of time, or (B) containing any right of first refusal or similar rights;
(Cxiv) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person[Reserved];
(Dxv) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in Contracts obliging the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product Company or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating Business to any Compound or Product or source the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any entirely of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials requirements for any Compound product or Product, and related quality agreements;
(K) service from a single supplier or to sell any Contract for the ongoing product or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related service to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsa single Person; and
(Oxvi) any other Any Contract not otherwise listed above to which the Company is (or following the Reorganization will become) a party that is material either (A) involves payments to or from the Development, manufacture or sale Company in excess of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses$1,000,000 per annum, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under duration in excess of twelve (12) months that cannot be terminated by the IQVIA Agreement in an amount equal to $2,480,000Company on less than ninety (90) days’ notice without penalty.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Tronc, Inc.)
Material Contracts. (ia) Section 5.1(i)(iSchedule 3.12(a) of the Disclosure Schedules sets forth a true and accurate complete list of each Contract all Contracts which are material to the Seller Services, HM5000 Retained Business or Business and condition (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as financial or otherwise), results of operations, assets, liabilities, properties or commercial relationships of the date of this Agreement Business, the Seller Services, HM5000 Retained Business or the Acquired Assets, and to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates is a party or by which the Acquired Assets are bound (collectively, "Material Contracts"), including any Contracts:
(i) for which the absence or termination of could have, individually or in settlement the aggregate, a Material Adverse Effect;
(ii) to which a current or former officer, director, stockholder, manager, member or employee of the Seller or any current or former Affiliate of such Persons or of the Seller is the other or another party;
(iii) pursuant to which the Seller sells or distributes the products relating to the Seller Services, HM5000 Retained Business, the Business or the Acquired Assets;
(iv) with the twenty (20) largest customers by gross purchases, related to the Seller Services, HM5000 Retained Business or the Business, during the twelve (12) month period preceding the Closing (the "Significant Customers");
(v) with the twenty (20) largest vendors or suppliers (including all those vendors or suppliers that are the sole source of such supply) by gross sales, related to the Seller Services, HM5000 Retained Business or the Business, during the twelve (12) month period preceding the Closing (the "Significant Vendors");
(vi) which contain any non-solicitation, non-competition, confidentiality or similar obligations or which otherwise prohibit the Seller from freely providing services or supplying products to any customer or potential customer;
(vii) which are for the cleanup, abatement or other actions in connection with any Hazardous Material, the remediation of any Legal Proceeding existing environmental liabilities, violation of any environmental Laws or other dispute relating to the performance of any environmental audit or study;
(viii) which relate to joint ventures, partnerships or similar Contracts;
(ix) which relate to any license obtained by Seller related to the Acquired Assets or for the Product Operationspurposes of conducting the Seller Services, including the conduct of any clinical trialsHM5000 Retained Business or Business;
(Hx) any Contract that limits which relate to all network services provided to Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(Oxi) which relate to any other Contract that is material Leased Real Property. Prior to the Developmentdate hereof, manufacture or sale the Seller has delivered to the Buyer true, complete and correct copies of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts that are valid in written form and all material correspondence related thereto.
(b) Each Material Contract is in full force and effect and is a legal, valid, binding agreements and enforceable obligation of or against each of the parties thereto, except as such enforceability is limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors' rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Neither the Seller, enforceable in accordance with their terms, subject nor to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller's Knowledge, Seller has made available or delivered any other party to Purchaser a correct and complete copy of each written any Material Contract. Seller , is not currently in breach of or in default in any material breach respect under, or material default of has improperly terminated any of the Material Contracts or Nondisclosure AgreementsContract, and there exists no condition or event has occurred that with which, after notice or lapse of time, time or both, would constitute a material any such breach, default by or termination. The Seller has not received notice of default under any Material Contract, and there are no material maintenance or capital improvement obligations thereon in an amount over $5,000 (or the equivalent value in the applicable currency). To the Knowledge of Seller, no other party to a No Material Contract is subject or subordinate to any Lien except the Permitted Liens, subject to the Third Party Consents listed on Schedule 3.12(d)-1 and Schedule 3.12(d)-2. To Seller's Knowledge, there are no Material Contracts that were not negotiated at arm's length.
(c) Each HM5000 Contract that Seller has not provided to Buyer has substantially the same terms and conditions as set forth in material breach the applicable form of contract, attached hereto as Exhibit L.
(d) Except as set forth on Schedule 3.12(d)-1 and Schedule 3.12(d)-2, no consents, waivers or material default approvals from any Persons are (i) required in connection with the execution, delivery or performance of such Material Contract this Agreement and no event has occurred all agreements and instruments delivered in connection herewith, by the Seller or the consummation by the Seller of the transactions contemplated herein or therein or (ii) necessary in order that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract remain in effect without modification after the transactions contemplated hereby and not give rise to any right to termination, cancellation, or Nondisclosure Agreementacceleration or loss of any right or benefit of the Seller (the consents set forth on Schedule 3.12(d)-1 and Schedule 3.12(d)-2 are hereafter referred to as the "Third Party Consents"). No party The Seller has repudiated in writing orobtained, or will obtain prior to the Knowledge Closing, all Third Party Consents listed on Schedule 3.12(d)-1.
(e) Except as disclosed on Schedule 3.12(e), the Seller is not a party to any Contract with any of the current or former officers, directors, stockholders, managers or members of the Seller or any current or former Affiliate of such Persons or of the Seller, otherwise provided notice except in the ordinary course of its business. The outstanding balance on all loans, credit agreements, guarantees, and similar Contracts between the Seller, on the one hand, and any current or former officer, director, stockholder, manager, member or employee of the Seller or any current or former Affiliate of any such Person or of the Seller, on the other hand, is set forth in Schedule 3.12(e).
(f) Except as disclosed on Schedule 3.12(f), all Contracts with dealers, distributors and/or manufacturers' representatives of the Business which are included in the Acquired Assets can be terminated by Seller upon no more than sixty (60) days' prior written notice, with or without cause, without liability, penalty or premium of any nature and such termination will not cause a violation of any Law.
(g) Except as disclosed on Schedule 3.12(g), no Significant Customer or Significant Vendor has: (i) stopped or indicated an intention to repudiate any stop trading with or supplying the Seller, (ii) reduced, or indicated an intention to reduce, its trading with or provision of a Material Contract goods or Nondisclosure Agreementservices to the Seller, or (iii) changed, or indicated an intention to change, materially the terms and conditions on which it is prepared to trade with or supply the Seller. Seller has no reason to believe that a Significant Customer or Significant Vendor is reasonably likely or will, as a result of the transactions contemplated by this Agreement and all agreements and instruments delivered in connection herewith: (x) not given trade with or supply the Seller, (y) reduce substantially its trading with or provision of goods or services to or received from any other Person any writtenthe Seller, or (z) change the terms and conditions on which it is prepared to trade with or supply the Seller. Seller has no Knowledge of any facts, conditions or events which might give rise to a claim by the Seller other, notice regarding against any material violation Significant Customer or breach of, Significant Vendor or default under, any Material Contract claim by a Significant Customer or Nondisclosure AgreementSignificant Vendor against the Seller.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (At Track Communications Inc)
Material Contracts. (ia) Section 5.1(i)(i) of Except for this Agreement, the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract Company Employee Plans or as filed with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of SellerSEC, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement, the Company is not a party to or bound by:
(i) any Contract: (A) involving or related to a joint venture, strategic alliance, partnership or sharing of profits or revenue, in each case material to the Company; or (B) except Contracts for expenditures to the extent accounted for or reflected in the Company’s capital expenditure budget set forth in Section 4.11(a)(i) of the Company Disclosure Letter (the “Capex Budget”), obligating the Company to make any capital investment or capital expenditure in excess of $5,000,000 individually or $10,000,000 in the aggregate (with those required under any other Contract of the type described in this Section 4.11(a)(i)(B)) over the remaining life of such Contract;
(ii) any Contract that requires or is expected to require payments by or to the Company in excess of $10,000,000 over the remaining life of such Contract (other than (A) Contracts for expenditures to the extent accounted for or reflected in the Capex Budget, or (B) Contracts for the acquisition or disposition of raw materials, other inventory, supplies, equipment or products in the ordinary course of business);
(iii) any Contract pursuant to which (A) the Company grants to any other Person a license, covenant not to sue or similar right under any material Company IP, (B) any other Person grants to the Company a license, covenant not to sue or similar right under any material Intellectual Property used in the Company’s business, or (C) the Company agrees to limit its use or enforcement of material Company IP in any material respect (including pursuant to any co-existence or similar agreement), but excluding, in each case of (A) through (C): any (1) non-exclusive licenses granted to the Company with respect to “off the shelf” Software or Software that is readily commercially available pursuant to a standard “shrink wrap” or other similar standardized license agreement that has a purchase price or annual license fee of less than $1,000,000; (2) non-exclusive licenses granted in the ordinary course of business to any customer for such customer’s end-use of Company Products, or to or from any employee, contractor, consultant, vendor or service provider, solely in connection with the provision or receipt of services by the Company or such parties; (3) open source Software licenses; and (4) non-exclusive licenses incidental to the Company’s sale or purchase of any product or service;
(iv) licenses any Contract governing the development or ownership of any Intellectual Property, Software or Company Product developed by or jointly with any other Person at the request or direction of the Company, which Intellectual Property, Software or Company Product is material to commercially available software the Company’s business, but excluding employment, consulting, services or cloud invention assignment agreements entered into in the ordinary course of business with employees, contractors or software as a service agreements; and consultants of the Company, in each case, assigning all rights therein to the Company;
(v) assignment agreements with employeesany Contract entered into at any time since January 1, 2021: (A) relating to the disposition or acquisition by the Company of any business, product line or other material 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) (excluding, in any case, the acquisition or disposition of raw materials, other inventory, supplies, equipment or products in the ordinary course of business), including proprietary information any put, call or similar right pursuant to which the Company could be required to purchase or sell any such business, product line or other material assets; or (B) pursuant to which the Company will acquire any interest, or will make an investment, in any Person (other than short term investments, including money market funds, bank deposits, commercial paper and invention assignment agreements with employeesother money market instruments as disclosed in the Company Balance Sheet or the notes thereto, incurred in the ordinary course of business) in any other Person;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(Fvi) any Contract relating to the creation disposition or acquisition by the Company of Liens on any Acquired Assets business, product line or the guarantee other material assets of the payment Company or another Entity (whether by merger, sale or purchase of Liabilities assets, sale or performance purchase of stock or equity ownership interests or otherwise) with (A) continuing material indemnification obligations of the Company or (B) any material remaining “earn out” or other Person by Seller relating contingent payment or consideration of the Company that has not been substantially satisfied prior to any Compound or Product or any Acquired Assetsthe date of this Agreement;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(Hvii) any Contract that by its terms limits Seller’s in any material respect the ability of the Company or its Affiliates (including, following the Closing, Parent and its Subsidiaries): (A) to make generally available engage in any versions line of business or compete with, or provide any Compound product or Product developed by service to, any other Person or for Sellerin any geographic area; or (B) to acquire any product or other asset or any service from any Person, sell any product or other asset to any other Person, or transact business or deal in any other manner with any other Person;
(Iviii) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilitiesby its terms: (iA) standalone indemnity arrangements with clinical trial sites grants exclusive rights to market, sell or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) deliver any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is product material to the DevelopmentCompany; (B) contains any “most favored nation” or similar provision in favor of the counterparty for a product material to the Company; (C) contains a right of first refusal, manufacture first offer or sale first negotiation or any similar right with respect to a material asset of any Compound the Company; (D) obligates the Company to purchase a specified minimum amount of goods or Productservices, in each case, as currently conducted by Sellerin excess of $10,000,000 (other than Contracts for the acquisition or disposition of raw materials, other than inventory, supplies, equipment or products in the ordinary course of business, in each case, where such Contracts have a remaining term of one year or less from the date of this Agreement or can be terminated by the Company without penalty on ninety days or less prior notice); or (E) provides for a “sole source” or similar relationship or contains any provision that requires the purchase of all or a material portion of the Company’s requirements from any third party;
(ix) any Contract relating to Indebtedness in excess of $1,000,000 or creating a Lien (iother than a Permitted Lien) real propertyon any of the assets or properties of the Company;
(x) any settlement or similar Contract arising out of a Legal Proceeding or threatened Legal Proceeding: (A) that materially restricts or imposes any material obligation on the Company or materially disrupts the business of the Company as currently conducted; or (B) that would require the Company to pay consideration valued at more than $1,000,000 individually or $5,000,000 in the aggregate following the date of this Agreement;
(xi) any material Contract with any Governmental Entity;
(xii) any Contract between or among the Company, on the one hand, and any directors, executive officers (iias such term is defined in the Exchange Act) employeesor any beneficial owner of five percent (5%) or more of the outstanding shares of any class of capital stock of the Company, or employee compensation or benefit mattersany Affiliate of the foregoing, including any Employee Benefit Plan, on the other hand (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.a Company Employee Plan); or
(iixiii) All any other Contract (other than any other Material Contract), the termination of which would constitute a Company Material Adverse Effect. Each Contract of the Material Contracts are valid and binding agreements type described in this Section 4.11(a) or filed by the Company as a “material contract” pursuant to Item 601(b)(10) of SellerRegulation S-K under the Securities Act, enforceable together with each lease listed on Section 4.9(b) of the Company Disclosure Letter, in accordance with their termseach case, subject to the Enforceability Exception. Other than Material Contracts whether entered into prior to, on behalf of Selleror following the date hereof, Seller is referred to herein as a “Material Contract.” The Company has made available or delivered to Purchaser Parent a true, correct and complete copy of each written Material Contract existing as of the date hereof.
(b) Except as does not, individually or in the aggregate, constitute a Company Material Adverse Effect, each Material Contract is in full force and effect and is valid, binding and enforceable in accordance with its terms against the Company, subject to the Enforceability Exceptions and assuming the validity, binding nature and enforceability against the counterparty or counterparties thereto. The Company has not, and, to the Knowledge of the Company, no other Person has, violated or breached, or committed any default under, any Material Contract. Seller is not in material breach or material default of any , and the Company would not, and, to the Knowledge of the Material Contracts Company, no other Person would, with or Nondisclosure Agreements, and no event has occurred that with without notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is be in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any such Material Contract Contract, where such violation, breach or Nondisclosure Agreement.
(iii) As default, individually or in the aggregate, constitutes a Company Material Adverse Effect. The Company has not received any written notice regarding any actual or, to the Knowledge of the date hereofCompany, (A) threatened breach or violation of, or default under, any such Material Contract, or the Liabilities of Seller relating intention to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000cancel any such Material Contract.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Encore Wire Corp)
Material Contracts. (i) Section 5.1(i)(i3.3(s) of the Disclosure Schedules Schedule sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller of the following types of Contracts to which the Company or any of its Subsidiaries is a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect party as of the date of this Agreement to which Seller is (each, a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material ContractsContract”):
(Ai) any Real Property Lease;
(ii) any Contract establishing a joint venture involving the current or collaboration, co-promotion future lease of personal property by the Company or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of its Subsidiaries that provides for rent payable by the following entered into Company or any of its Subsidiaries in the Ordinary Course an annual period in excess of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites $50,000 as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(Eiii) any Contract under which Seller pays with a customer or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to distributor involving the creation sale of Liens on any Acquired Assets or goods by the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates in settlement of any Legal Proceeding Subsidiaries that provides for a price, fee or other dispute relating similar consideration payable to the Acquired Assets Company or any of its Subsidiaries in an annual period in excess of $50,000 as of the Product Operationsdate of this Agreement, including excluding purchase orders and related releases occurring in the conduct of any clinical trialsOrdinary Course;
(Hiv) any Contract with a supplier, vendor or service provider (A) involving the purchase of goods or services by the Company or any of its Subsidiaries that limits Seller’s ability to make generally available provides for a price, fee or similar consideration payable by the Company or any versions of any Compound its Subsidiaries in an annual period in excess of $50,000 as of the date of this Agreement, excluding purchase orders and related releases occurring in the Ordinary Course or Product developed by (B) is the only source or for Sellersupplier of such product, raw material or service;
(Iv) any Contract evidencing outstanding Indebtedness;
(vi) any collective bargaining agreement, works council agreement, or similar labor agreement with any Union (a “Collective Bargaining Agreement”);
(vii) any Contract for the research employment that provides for annual base compensation in excess of $150,000, excluding Contracts that are terminable at will by the Company or Development applicable Subsidiary without liability for any severance or similar payment;
(viii) any Contract with any current or former employee, director, individual independent contractor or other non-employee service provider that provides for change in control, retention, transaction or severance payments or benefits or other similar payments or benefits, whether or not payable as a result of the consummation of the Transaction;
(ix) any joint venture, partnership or similar Contract;
(x) any Contract containing (A) a non-competition covenant that materially restricts the business activity of the Company or any of its Subsidiaries with respect to their respective businesses as conducted on the date of this Agreement or (B) exclusivity obligations or restrictions binding on the Company or its Subsidiaries in any material respect;
(xi) any Contract that (A) obligates the Company or its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell or distribute any product or service exclusively to or through a single party, (B) contains “most favored nation” or equivalent preferential pricing terms or (C) contains minimum purchase requirements;
(xii) any Contract that provides for any merger or business combination with respect to the Company or any of its Subsidiaries or the acquisition or disposition of any Compound business, a material amount of stock or Productassets of any other Person or any real property (whether by merger, other than any sale of the following entered into in the Ordinary Course stock, sale of Business andassets or otherwise), in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (iA) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed was entered into by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside any of the U.S. Company or its Subsidiaries in the last five (5) years or (B) that contains any ongoing or future contingent or deferred purchase price obligations, earn-out obligations, material restrictive covenant obligations or material indemnification obligations (other than local representative agreements and legal representative agreements indemnification obligations with respect to fraud or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors“fundamental” representations);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nxiii) any Contract with any Governmental Authority relating (including any subcontract for which the primary contract is with a Governmental Authority) to any Compound or Product which the Company or any of its Subsidiaries is a party;
(xiv) any Contract involving any resolution or settlement of an actual or threatened Action or other dispute related to the Acquired AssetsCompany or its Subsidiaries, including any consent decree, settlement agreement or similar agreement, in each case that (A) was in an amount in excess of $50,000 and was entered into by the Company or its Subsidiaries in the last five (5) years or (B) that contains any ongoing or monetary obligations of the Company or its Subsidiaries, in each case;
(xv) any Contract requiring capital expenditures after the date hereof in excess of $100,000;
(xvi) any Contract with a Material Customer or Material Supplier;
(xvii) any Contract constituting a Related Party Transaction;
(xviii) other than clinical trial agreements and related ancillary agreements for commercially available unmodified software licensed to the Company on standard terms in the Ordinary Course, any Contract pursuant to which any Person grants to the Company or any of its Subsidiaries, or the Company or any of its Subsidiaries grants to any Person, a license, sublicense, agreement or other permission to use or enforce any Intellectual Property, or pursuant to which any Intellectual Property was developed or acquired, that is (A) material to the Company or any of its Subsidiaries or (B) involves one-time or annual payments to or from the Company or any of its Subsidiaries in the amount of $100,000 or greater;
(xix) any Contract with public institutionsa sales representative that materially deviates from the form agreement attached as Exhibit 3.3(s)(xix); and
(Oxx) any other Contract that to agree to do any of the foregoing. Each Material Contract is material in full force and effect and is enforceable against the Company or a Subsidiary of the Company (as applicable) and, to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All Knowledge of the Material Contracts are valid and binding agreements of SellerCompany, enforceable the other party or parties thereto in accordance with their its terms, subject except as such may be limited by the Enforceability Exceptions. The Company or a Subsidiary of the Company (as applicable) and, to the Enforceability ExceptionKnowledge of the Company, each other party thereto are in compliance, in all material respects, with all material terms of, and are not in material default with respect to, each Material Contract. Other than Material Contracts entered into on behalf of Seller, Seller The Company has made available or delivered to Purchaser Buyer a true, correct and complete copy of each written Material Contract, together with all material amendments thereto. Seller is not in material Since the Lookback Date, none of the Company or its Subsidiaries has received written notice of any default, breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller violation under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Unit Purchase Agreement (Watts Water Technologies Inc)
Material Contracts. (ia) Section 5.1(i)(i4.17(a) of Alpha Disclosure Schedule lists, and Alpha has made available to Foundation prior to the Disclosure Schedules sets forth date of this Agreement, true, correct and complete copies of, any of the following Contracts to which Alpha or any of its Subsidiaries is a true and accurate list party or by which Alpha, any of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect its Subsidiaries or any of their respective assets is bound, as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):hereof:
(Ai) any Contract establishing that would be required to be filed by Alpha as a joint venture “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or collaboration, codisclosed by Alpha on a Current Report on Form 8-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsK;
(Bii) that contains covenants that limit the ability of Alpha or any Contract containing covenants prohibiting of its Subsidiaries (or limiting which, following the right consummation of the Merger, could restrict the ability of the Surviving Corporation or any of its Affiliates) to compete or engage in any aspect of the Product Operations business or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person person or in any geographical area;
(C) geographic area or distribution or sales channel, or to sell, supply or distribute any Contract granting most favored nation service or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andproduct, in each case, that are not Acquired Business Contracts could reasonably be expected to be material to the business of Alpha and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of its Subsidiaries, taken as a service provider performing services for or on behalf of Seller; whole;
(iii) agreements with clinical investigators and clinical sites for that relates to a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the conduct formation, creation, operation or control of any partnership or joint venture or similar entity or arrangement (other than any partnership or limited liability company operating agreement of a clinical study, direct or indirect wholly-owned Subsidiary of Alpha) or pursuant to which study is complete Alpha or substantially complete at the relevant clinical sites as any of the date its Subsidiaries has an obligation (contingent or otherwise) to make a material investment in or material extension of this Agreement; credit to any Person;
(iv) licenses that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including commodities, emissions allowances, renewable energy credits, currencies, interest rates, foreign currency and other indices, in each case, that is material to commercially available software or cloud or software the business of Alpha and its Subsidiaries, taken as a service agreements; and whole;
(v) assignment agreements that relates to (A) Indebtedness under which Alpha and/or any of its Subsidiaries has outstanding obligations in excess of $10,000,000 or (B) conditional or similar sale arrangements in connection with employees, including proprietary information which the aggregate actual or contingent obligations of Alpha and invention assignment agreements with employeesits Subsidiaries under such Contract are greater than $10,000,000;
(Evi) any Contract under which Seller pays (A) to the knowledge of Alpha, any Person has directly or receives milestone indirectly guaranteed any liabilities or royalty payments relating to obligations of Alpha or its Subsidiaries (other than any Compound such guarantees by Alpha or Product its Subsidiaries), in case of each such liability or obligation, in an amount in excess of $5,000,000, or (B) Alpha or any Product IP;
(F) of its Subsidiaries has directly or indirectly guaranteed any Contract relating to the creation of Liens on any Acquired Assets liabilities or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller other than Alpha or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorsSubsidiaries);
(Jvii) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, purchase and sale of coal under which (x) the aggregate amounts to be paid by Alpha and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $50,000,000 in any twelve-month period or storage (y) the aggregate amounts to be received by Alpha and its Subsidiaries over the remaining term of the active pharmaceutical ingredients and other raw materials for such Contract would reasonably be expected to exceed $50,000,000 in any Compound or Product, and related quality agreementstwelve-month period;
(Kviii) under which (x) the aggregate amounts to be paid by Alpha and its Subsidiaries over the remaining term of such Contract would reasonably be expected to exceed $10,000,000 in any twelve-month period or (y) the aggregate amounts to be received by Alpha and its Subsidiaries over the remaining term of such Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating would reasonably be expected to exceed $10,000,000 in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Producttwelve-month period, in each case, as currently conducted by Seller, other than any (1) the Alpha Material Contracts described in Section 4.17(a)(iv) or 4.17(a)(vii) and (2) purchase orders for the purchase of goods or services in the ordinary course of business;
(ix) that relates to an Alpha Interested Party Transaction; or
(x) that would or would reasonably be expected to prevent or materially delay Alpha’s ability to consummate the Merger or the other transactions contemplated by this Agreement. Each Contract relating to of the type described in clauses (i) real property, through (iix) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceis referred to herein as an “Alpha Material Contract.”
(iib) All of the Each Alpha Material Contracts are Contract is valid and binding agreements on Alpha and any Subsidiary of SellerAlpha that is a party thereto and, enforceable in accordance with their terms, subject to the Enforceability Exceptionknowledge of Alpha, each other party thereto and is in full force and effect. Other than There is no default under any Alpha Material Contracts entered into on behalf of Seller, Seller has made available Contract by Alpha or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of its Subsidiaries or, to the Material Contracts or Nondisclosure Agreementsknowledge of Alpha, by any other party, and no event has occurred that with the lapse of time or the giving of notice or lapse of time, or both, both would constitute a material default thereunder by Seller under Alpha or any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing its Subsidiaries or, to the Knowledge knowledge of SellerAlpha, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from by any other Person any writtenparty, in each case except as would not have or reasonably be expected to have, individually or in the Knowledge of Seller otheraggregate, notice regarding any material violation or breach of, or default under, any an Alpha Material Contract or Nondisclosure AgreementAdverse Effect.
(iiic) As Neither Alpha nor any of its Subsidiaries is party to any Contract that prohibits Alpha from providing to Foundation the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced information described in clause (BSection 5.4(c)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (ia) All Contracts required to be filed as exhibits to the Holdings SEC Documents have been so filed in a timely manner. Section 5.1(i)(i4.16(a) of the Holdings Disclosure Schedules Schedule sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect complete list, as of the date hereof, of this Agreement each of the following Contracts to which Seller Holdings or any of its Subsidiaries is a party or which was entered into by or on behalf of Seller, or by which Holdings or any of the Acquired Assets is its Subsidiaries or any of their assets or businesses are bound in the following categories (the “Material Contracts”and any amendments, supplements and modifications thereto):
(Ai) any Contract establishing that is a joint venture “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) any Contract that materially limits the ability of Holdings or any of its affiliates (including, following the consummation of the Transactions, New Amethyst and its affiliates) to compete or provide services in any line of business or with any Person or in any geographic area or market segment or to engage in any type of business (including any license, collaboration, coagency or distribution agreements);
(iii) any Contract required to be disclosed pursuant to Item 404 of Regulation S-promotion K of the Exchange Act;
(iv) any Contract or like arrangementseries of related Contracts relating to indebtedness for borrowed money (A) in excess of $1 million or (B) that becomes due and payable as a result of the Transactions;
(v) any license, sublicense, option, development or collaboration agreement or other Contract relating to Holdings Material Intellectual Property reasonably expected to result in aggregate payments in excess of $1 million after the Closing Date (excluding license agreements for “shrink-wrap,” “click-wrap” or other commercially available off-the-shelf software that is not the subject of a negotiated agreement, and excluding agreements the primary purpose of which is to purchase tangible goods or procure services unrelated to Intellectual Property and in the ordinary course of business);
(vi) any Contract that is material to the business of Holdings and its Subsidiaries, taken as a whole, that provides for any “most favored nation” provision or equivalent preferential pricing terms or similar obligations to which Holdings or any of its Subsidiaries is subject;
(vii) any purchase, sale or supply contract that contains volume requirements or commitments, exclusive or preferred purchasing arrangements or promotional requirements reasonably expected to result in payments in excess of $4 million in any twelve (12) month period after the Closing Date;
(viii) any lease, sublease, occupancy agreement or other Contract with respect to the Holdings Leased Real Property reasonably expected to result in payments in excess of $1 million in any twelve (12) month period after the Closing Date;
(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 Holdings or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses (in any case in excess of $10 million);
(x) any acquisition or divestiture agreement (A) entered into since January 1, 2013 with a purchase price in excess of $25 million or (B) that contains “earn-out” provisions or other contingent payment obligations that could reasonably be expected to exceed $5 million for any such Contract individually or $25 million in the aggregate (including indemnification obligations) that have not been satisfied in full;
(xi) any agreement that by its terms limits the payment of dividends or other distributions by Holdings or any of its Subsidiaries;
(xii) any Contract for any joint venture, partnership or similar arrangement (in each case, other than any Affiliated Medical Group), or any Contract involving a sharing with another Person of revenues, profits, losses, costs, royalties, milestone payments, or Liabilities liabilities by Holdings or any of Seller relating to the Acquired Assets its Subsidiaries with any other Person involving a potential combined commitment or the Development, manufacture, or Commercialization payment by Holdings and any of any Compound or Product, including the conduct its Subsidiaries in excess of any clinical trials$1 million annually;
(Bxiii) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person Governmental Entity that is reasonably expected to result in (x) the payment by Holdings or any of its Subsidiaries of an amount in any geographical areaexcess of $30 million per annum or (y) the receipt by Holdings or its Subsidiaries of an amount in excess of $30 million per annum;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(Dxiv) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Holdings or any of its Affiliates in settlement of Subsidiaries provides emergency department, radiology, anesthesia, hospitalist program or any Legal Proceeding other staffing services to or for any hospital or other dispute relating healthcare facility that generated revenue to Holdings and its Subsidiaries in excess of $20 million in the Acquired Assets or the Product Operationsyear ended December 31, including the conduct of any clinical trials2015;
(Hxv) any Contract pursuant to which Holdings or any of its Subsidiaries provides management, consulting, billing or other administrative-type services to or for any hospital or other healthcare facility, any physician or medical group (excluding Affiliated Medical Groups) or any other Person that generated revenue to Holdings and its Subsidiaries in excess of $20 million in the year ended December 31, 2015;
(xvi) any Contract that limits Seller’s ability generated revenue to make generally available Holdings and its Subsidiaries of in excess of $30 million in the year ended December 31, 2015 between Holdings or any versions of its Subsidiaries and (i) any Compound municipality or Product developed by other local agency pursuant to which Holdings or for Sellerany of its Subsidiaries provides emergency 911 response services or (ii) any Private Program pursuant to which Holdings or any of its Subsidiaries provides emergency or non-emergency transportation services;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nxvii) any Contract with any Governmental Authority relating hospital, skilled nursing facility or other healthcare facility pursuant to any Compound or Product which Holdings or any of its Subsidiaries provides emergency or non-emergency transportation services to such hospital, skilled nursing facility or other healthcare facility that is not terminable by Holdings or its Subsidiary’s counterparty, upon less than 120 days’ notice, that generated revenue to Holdings and its Subsidiaries of in excess of $30 million in the Acquired Assetsyear ended December 31, 2015;
(xviii) any Contract between any of Holdings or any of its Subsidiaries, on the one hand, and a third party payor (including any Governmental Program and any Private Program), on the other than clinical trial agreements and related ancillary agreements with public institutionshand, that applies to Holdings or any of its Subsidiaries on a national or statewide basis; and
(Oxix) any other Contract that is material agreement which would prohibit or delay beyond the Outside Date the consummation of the Mergers or any other Transaction contemplated by this Agreement.
(b) Holdings has heretofore made available to AmSurg true, correct and complete copies of the DevelopmentContracts set forth in Section 4.16(a).
(c) Except as has not had and would not reasonably be expected to have, manufacture individually or sale of any Compound or Productin the aggregate, in each casea Holdings Material Adverse Effect, as currently conducted by Seller, other than any Contract relating to (i) real property, (iiall Contracts set forth or required to be set forth in Section 4.16(a) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Holdings Disclosure Schedule or filed or required to be filed as exhibits to the Holdings SEC Documents (the “Holdings Material Contracts Contracts”) are valid valid, binding and binding agreements of Seller, in full force and effect and are enforceable by Holdings or its applicable Subsidiary in accordance with their terms, subject except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) Holdings, or its applicable Subsidiary, has performed all obligations required to be performed by it under the Enforceability Exception. Other than Holdings Material Contracts entered into on behalf of SellerContracts, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller it is not in material breach (with or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with without notice or lapse of time, or both) in breach or default thereunder and, would constitute a material default by Seller under any Material Contract. To to the Knowledge of SellerHoldings, no other party to a any Holdings Material Contract is in material breach (with or material default of such Material Contract and no event has occurred that with without notice or lapse of time, or both) in breach or default thereunder, would constitute a material default by such other party under (iii) since January 1, 2013, neither Holdings nor any Material Contract or Nondisclosure Agreement. No party of its Subsidiaries has repudiated in writing or, to the Knowledge of Seller, otherwise provided received written notice of its intention to repudiate any provision of a Material Contract actual, alleged, possible or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material potential violation or breach of, or default underfailure to comply with, any term or requirement of any Holdings Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepaymentsContract, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) neither Holdings nor any of its Subsidiaries has received any written notice of the Disclosure Schedules sets forth an accurate and complete list intention of all outstanding accrued trade payables any party to cancel, terminate, materially change the scope of rights under the Acquired Business Contracts as of the date hereofor fail to renew any Holdings Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Amsurg Corp)
Material Contracts. (ia) Section 5.1(i)(i) 3.12 of the Company Disclosure Schedules Schedule sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andContracts to which, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; , the Company or any of its Subsidiaries, if any, is a party (each, a “Company Material Contract”):
(i) each Contract (A) not to (or otherwise restricting or limiting the ability of the Company or any of its Subsidiaries, if any, to) compete in any line of business or geographic area or (B) to restrict the ability of the Company or any of its Subsidiaries, if any, to conduct business in any geographic area;
(ii) each Contract (other than any Company Benefit Plan, note evidencing indebtedness owed by Rhodium Encore LLC or Rhodium 2.0 LLC to any current Company stockholder, and contract with any contractor hired in connection with capital improvements for the Temple site) that is reasonably likely to require, during the remaining term of such Contract, annual payments by the Company or any of its Subsidiaries that exceed $1,000,000;
(iii) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material Company Assets;
(iv) licenses all material Contracts (A) for the granting or receiving of a license, sublicense or franchise (in each case, including any such Contracts relating to commercially available software any Intellectual Property) providing for or cloud resulting in a payment in excess of $1,000,000 per year or software as (B) under which any Person is obligated to pay or has the right to receive a service agreements; royalty, license fee, franchise fee or similar payment in which it is reasonably expected to pay or receive a royalty, license fee, franchise fee or similar payment in excess of $1,000,000, in each case of clause (A) and (v) assignment B), other than agreements with employees, including proprietary information non-exclusive licenses granted to the Company’s or its Subsidiaries’ customers, and invention assignment agreements with employeesnon-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms;
(Ev) any Contract under which Seller pays all partnership, joint venture or receives milestone other similar agreements or royalty payments relating to any Compound or Product or any Product IParrangements;
(Fvi) any Contract agreement relating to the creation of Liens on any Acquired Assets indebtedness for borrowed money or the guarantee deferred purchase price of the payment of Liabilities property (in either case, whether incurred, assumed, guaranteed or performance of obligations of secured by any other Person by Seller relating to asset), except any Compound or Product or any Acquired Assetssuch agreement with an aggregate outstanding principal amount not exceeding $5,000,000;
(Gvii) any Contract entered into agreement for the disposition or acquisition by Seller the Company or any of its Affiliates in settlement Subsidiaries, if any, with material obligations of the Company or any of its Subsidiaries, if any, (other than confidentiality obligations) remaining to be performed or material Liabilities of the Company or any of its Subsidiaries, if any, continuing after the date of this Agreement, of any Legal Proceeding material business or any material amount of assets other dispute relating to than in the Acquired Assets or the Product Operations, including the conduct ordinary course of any clinical trialsbusiness;
(Hviii) any Contract agreement, other than operating agreements of subsidiaries of Company and agreements entered into by SAFE investors, which have been made available to Parent, restricting or limiting the payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations that limits Seller’s ability to make generally available any versions of any Compound are required by applicable Law or Product developed by or for Sellerthe Company Organizational Documents;
(Iix) any Contract for the research or Development development of any Compound or ProductIntellectual Property, other than any of the following those entered into in the Ordinary Course ordinary course of Business and, in each case that are not Acquired Business Contracts business with Company employees and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionscontractors; and
(Ox) any other Contract that is all material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated agreements with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceGovernmental Authority.
(iib) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct A true and complete copy of each written Company Material ContractContract (including any related amendments) entered into prior to the date of this Agreement has been made available to Parent prior to the date of this Agreement. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Each Company Material Contract is a valid and binding agreement of the Company or its applicable Subsidiary, except where the failure to be valid and binding would not, individually or in material breach the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or material default of in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company or such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orSubsidiary nor, to the Knowledge of Sellerthe Company, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenparty, or to the Knowledge is in breach of Seller other, notice regarding any material violation or breach of, or default under, under any such Company Material Contract or Nondisclosure Agreement.
(iii) As of the date hereofContract, (Aii) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereofof this Agreement, there are no material disputes in connection with any such Company Material Contract and (iii) as of the date of this Agreement, no party under any Company Material Contract has given written notice of its intent to terminate or otherwise seek a material amendment to such Company Material Contract.
Appears in 1 contract
Material Contracts. (i) Pure has disclosed in Section 5.1(i)(i4.2(y) of the Disclosure Schedules sets forth Letter a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with all of the same Third Party and that do not constitute an Assumed Liability) following Contracts in effect as of on the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories Date (the “Material Contracts”):
) and, except where disclosure is otherwise prohibited under the applicable Contract as disclosed in Section 4.2(y) of the Disclosure Letter, correct, current and complete copies of the Material Contracts have been made available to Purchaser in the Data Room Information: (i) any Contract entered into since January 1, 2015 or in respect of which the applicable transaction has not yet been consummated for the acquisition or disposition of assets or securities or other equity interests involving Pure or any Pure Subsidiaries having a value of in excess of $5 million; (ii) all Contracts pursuant to which Pure or any Pure Subsidiary will, or may reasonably be expected to result in a requirement of Pure or any Pure Subsidiary to, expend more than an aggregate of $1 million or receive or be entitled to receive revenue of more than an aggregate of $1 million in either case in the next 12 months; (iii) any Contracts relating directly or indirectly to the guarantee by Pure or any Pure Subsidiary of any liabilities or obligations or to the incurrence of indebtedness (currently outstanding or which may become outstanding) for borrowed money by Pure or any Pure Subsidiaries; (iv) any Contract (A) any Contract establishing which constitutes a joint venture agreement or collaborationpartnership, co-promotion or like arrangementteaming agreement, or other similar agreement involving a sharing with another Person of profits, losses, costs, royalties, milestone paymentscosts or liabilities of Pure or any Pure Subsidiary with any other Person that will, or Liabilities may reasonably be expected to result in a requirement of Seller relating Pure or any Pure Subsidiary to, expend more than an aggregate of $250,000 or receive or be entitled to receive revenue of more than an aggregate of $250,000 in either case in the Acquired Assets next 12 months or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) that relates to the joint development of intellectual property; (v) any Contract containing covenants prohibiting involving Pure or limiting any Pure Subsidiary which contains any outstanding “earn out,” contingent purchase price, or similar contingent payment obligations; (vi) any Contract which (A) limits the right freedom of Pure or any Pure Subsidiary or their respective affiliates to compete or engage in any aspect line of the Product Operations business, acquire any entity or prohibiting or restricting Seller’s ability to conduct the Product Operations compete with any Person or in any market or geographical area;
, except such contracts cannot be terminated by Pure on less than six months notice, (B) contains exclusivity obligations, any “take or pay” obligations or similar restrictions or (C) any Contract granting most grants a most-favored nation or exclusive rights relating status to any Compound or Product to any other Person;
; (Dvii) any Contract pursuant to which Seller has obtained constitutes an employment agreement, consulting agreement or granted any Intellectual Property Rights included in the Acquired Assets (option agreement with an officer of Pure or that would have been included in the Acquired Assets but provides for such Contract)base compensation, including any covenant not to enforce severance, retention, change of control or assert, including any existing license agreement relating other similar payments to any Compound employee or Product consultant of Pure or the Product Operations and each other Contract under which Seller is a licensor or licensee any Pure Subsidiary in excess of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; $250,000 per year and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(Hviii) any Contract that limits Seller’s ability is otherwise material to make generally available any versions Pure or that if terminated or modified or if it ceased to be in effect, would reasonably be expected to have a material adverse effect on Pure. Assuming that such agreements have been authorized, executed and delivered by all of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, parties thereto other than any of the following entered into in the Ordinary Course of Business and, in each case Pure and that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative such agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditorsother documents constitute legal, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements obligations of Sellerthe parties thereto other than Pure, enforceable against each of them in accordance with their respective terms, each of such Material Contracts constitutes a legally valid and binding agreement of Pure enforceable in accordance with their termsrespective terms and Pure is not, subject and to the Enforceability Exception. Other than Material Contracts entered into on behalf knowledge of SellerPure no other party thereto is, Seller has made available in default in the observance or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default performance of any of the Material Contracts term or Nondisclosure Agreements, obligation to be performed by it under any such Contract or agreement and no event has occurred that which with notice or lapse of time or both would directly or indirectly constitute such a default, in any such case which breach or default would reasonably be expected to have a material adverse effect on Pure. Neither Pure nor any of the Pure Subsidiaries has received any written notice of any default or event that with or without notice or the lapse of time, or both, would constitute a material default by Seller Pure or the applicable Pure Subsidiary that is party thereto under any Material Contract. To , except for defaults that would not, and would not reasonably be expected to, either individually or in the Knowledge of Selleraggregate, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute have a material default by such other party under adverse effect on Pure. Neither Pure nor any Pure Subsidiary has received any written notice of termination or cancellation of any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementContract.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Arrangement Agreement (Xylem Inc.)
Material Contracts. (ia) Section 5.1(i)(i2.11(a) of the Disclosure Schedules sets forth a true and accurate list of Schedule identifies each Material Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) is in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf Agreement.
(b) For purposes of Sellerthis Agreement, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) Contract” means and any Company Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage that is in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites effect as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;:
(Ei) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating amounts required be paid to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller Company or any of its Affiliates Subsidiaries between the date of this Agreement and the first anniversary of such date (other than pursuant to contracts with or for the benefit of employees of the Company and contracts that can be terminated by the Company or its applicable Subsidiary on notice of 60 days or less without penalty or liability) exceed an aggregate of $100,000 in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialseither case;
(Hii) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for SellerCompany IP Agreements;
(Iiii) any Contract for with a Key Business Partner;
(iv) with a Governmental Body (provided that the research or Development of any Compound or Product, other than any Company need not list on Section 2.11(a) of the following Disclosure Schedule any data sharing agreements entered into in the Ordinary Course ordinary course, not involving any exchange of Business andfunds, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection terms substantially consistent with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses examples that were made available to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisorsParent);
(Jv) evidencing Indebtedness of the Company or any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testingof its Subsidiaries in respect of borrowed money, or storage any guarantee of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreementsIndebtedness of another Person;
(Kvi) which imposes any Contract for restriction on the ongoing Company or planned analytical testing any of its Subsidiaries: (A) to engage, participate or storage compete in any line of biological specimens collected from subjects participating in clinical trials of business, market or geographic area; or (B) that contains any Compound “most favored nation” or Product“most favored customer” or similar provision;
(Lvii) granting exclusive rights, rights of first refusal or rights of negotiation to license, market, distribute, sell or deliver any Contract for Company Product; or otherwise contemplating an exclusive relationship between the distribution, promotion, marketing, reselling Company or any of its Subsidiaries and any other Commercialization of any Compound or ProductPerson;
(Mviii) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related relating to any Compound joint venture, strategic alliance, joint marketing, partnership or Productsharing of profits, or proprietary information or similar arrangement (including any joint development agreement, technical collaboration agreement or similar agreement);
(Nix) any Contract with any Governmental Authority relating to any Compound (A) transaction in which the Company or any of its Subsidiaries merged with any other Person, acquired any securities or material assets of another Person, or otherwise acquired the rights to any Company Product or any Company IP, or (B) disposition of any material assets outside the ordinary course;
(x) constituting a written employment agreement or severance agreement with senior management-level employees of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; andCompany or any of its Subsidiaries;
(Oxi) any other Contract that is material an indemnification agreement described in Section 4.9(a); or
(xii) settlement agreement or release of claims relating to any Legal Proceeding (whether actual or threatened).
(c) The Company has made available to Parent a complete and accurate copy of each Material Contract required to be identified in Section 2.11(a) of the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, Disclosure Schedule (other than any order form entered into in the ordinary course and any Governmental Body data sharing agreements entered into in the ordinary course, not involving any exchange of funds, with terms substantially consistent with the examples that were made available to Parent).
(d) Each Material Contract relating is valid and in full force and effect as of the date of this Agreement and is the legal, valid and binding obligation of the Company or it applicable Subsidiary and, to the Knowledge of the Company, the other parties thereto, enforceable against the Company or such Subsidiary, as applicable, and, to the Knowledge of the Company, against the other parties thereto, in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Neither the Company nor any of its Subsidiaries is in material breach or in material default under any Material Contract, and to the Knowledge of the Company, no other party to any such Material Contract is in breach or in default under any Material Contract, and to the Knowledge of the Company, no event, occurrence, condition or act exists or has occurred that, with the giving of notice or the lapse of time, would reasonably be expected to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser become a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No (ii) give any third party has repudiated in writing or, (A) the right to exercise any remedy that would be materially adverse to the Knowledge of Seller, otherwise provided notice Company or any of its intention Subsidiaries or (B) the right to repudiate a rebate, chargeback, refund, credit or penalty. As of the date hereof, neither the Company nor any provision of a Material Contract its Subsidiaries has received any written notice or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice written communication regarding any actual, alleged or potential material violation or breach of, or default under, or intention to cancel or materially modify any Material Contract or Nondisclosure AgreementContract.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Life360, Inc.)
Material Contracts. (a) Except as set forth on Schedule 2.11(a) Pilus is not party to or bound by:
(i) Section 5.1(i)(iany Contract which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):SEC);
(Aii) any Contract establishing a joint venture that includes any exclusive dealing arrangement or collaborationany arrangement that grants any material right of first refusal, co-promotion right of first offer, preemptive right or like arrangementsimilar right or that limits or purports to limit in any material respect the ability of Pilus (or that, following the consummation of the Merger, would materially restrict the ability of the Surviving Entity or involving a sharing with another Person of profitsits Affiliates) to own, lossesoperate, costssell, royaltiestransfer, milestone payments, pledge or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization otherwise dispose of any Compound assets or Product, including participate in any business anywhere in the conduct of any clinical trialsworld;
(Biii) any Contract containing covenants prohibiting for the acquisition, sale, lease or limiting the right to compete license of properties or engage assets of Pilus with a value in any aspect excess of the Product Operations $5,000 (by merger, purchase or prohibiting sale of assets or restricting Seller’s ability to conduct the Product Operations with any Person stock or in any geographical areaotherwise) entered into since January 1, 2007;
(Civ) any Contract granting most favored nation for any acquisition or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract disposition pursuant to which Seller has obtained Pilus is subject to continuing indemnification or granted any Intellectual Property Rights included in the Acquired Assets earn-out obligations (whether related to environmental matters or that would have been included in the Acquired Assets but for such Contractotherwise), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses would reasonably be likely to Intellectual Property Rights included result in the Acquired Assets for the sole purpose payments by Pilus in excess of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and $5,000;
(v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesany collective bargaining Contract;
(Evi) any Contract under which Seller pays that is a local marketing, joint sales, shared services, management services, independent sales agent, joint development, commercialization, distribution or receives milestone or royalty payments relating to any Compound or Product or any Product IPsimilar Contract;
(Fvii) any employment or similar Contract providing for compensation, severance or a fixed term of employment in respect of services performed by any employee or independent contractor of Pilus;
(viii) any partnership, limited liability company or joint venture Contract where Pilus directly or indirectly owns an equity interest in the partnership, limited liability company or joint venture;
(ix) any Contract for capital expenditures in excess of $5,000 for any single item and $10,000 for any project consisting of multiple items;
(x) any Real Property Lease or other Contract relating to Real Property;
(xi) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired AssetsIndebtedness;
(Gxii) any Contract entered into by Seller Pilus with an officer, manager, employee, independent contractor or any Affiliate of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialsPilus;
(Hxiii) any Contract that limits Seller’s ability relating to make generally available any versions of any Compound or Product developed by or for SellerIntellectual Property;
(Ixiv) any Contract for the research or Development of any Compound or Product, (other than any Contract of the following entered into type described in clauses (1) through (13) above) that: (A) involves the payment or potential payment by or to Pilus of more than $10,000 per annum or $20,000 in the Ordinary Course aggregate, or (B) cannot be terminated within twelve (12) months after giving notice of Business andtermination and without resulting in any material cost, penalty or liability to Pilus. Each Contract to which Pilus is a party of the type described in clauses (1) through (14) of this Section 2.11(a) is referred to in this Agreement as a “Material Contract.”
(b) Pilus has delivered or made available to Tauriga true, correct and complete copies of each Material Contract and all amendments, modifications and side letters with respect thereto. Except to the extent that it has previously expired in accordance with its terms, each Material Contract is valid and in full force and effect in all material respects, and is enforceable against Pilus, and to the Knowledge of Pilus, is enforceable against each other party thereto, in each case that are accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or similar laws of general applicability relating to or affecting creditors’ rights generally, or by general equity principles.
(c) Except as would not Acquired Business Contracts and are deemed Excluded Liabilitiesreasonably be expected to have a Material Adverse Effect on Pilus: (i) standalone indemnity arrangements with clinical trial sites Pilus is not, and to the Knowledge of Pilus no other party thereto is, in breach or clinical trial investigators; violation of, or in default under, any Material Contract, and (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the DevelopmentKnowledge of Pilus, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, which would constitute result in a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or a default under, any Material Contract (in each case, with or Nondisclosure Agreementwithout notice or lapse of time or both).
(iiid) As No Consent from or to any Governmental Entity or other Person is required in order to maintain in full force and effect any of the date hereofMaterial Contract, (A) the Liabilities other than such consents that have been obtained and are in full force and effect or that have been duly given and, in each case copies of Seller relating such consents have been delivered to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances Tauriga and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000Acquisition Sub.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (ia) With the exclusion of any Loans Receivable, Section 5.1(i)(i3.15(a) of the Seller Disclosure Schedules Schedule sets forth a true and accurate complete list of each the following Contracts to which Seller or any of its Affiliates is a party and to which the Business, the Purchased Assets or Assumed Liabilities are bound or subject (collectively, the contracts listed or required to be listed on Section 3.15(a) of the Seller Disclosure Schedule, the “Material Contracts”):
(i) Contracts involving aggregate consideration or payment obligations in excess of $100,000 individually or $100,000 in the aggregate;
(ii) all collective bargaining agreements covering any Business Employees or relating to the operation of the Business;
(iii) any (A) employment or severance Contract with any Business Employee (other than purchase orders issued any such agreement that is terminable by Seller at will upon notice of thirty (30) days or less without costs or liabilities); (B) Contract providing for a change of control, stay bonus, transaction completion bonus or other similar payment to be made to any Business Employee; or (C) consulting Contract with an individual service provider performing material services for the Business;
(iv) any operations agreement, maintenance agreement or management agreement (including administration or market participant services);
(v) the Leases;
(vi) Contracts that contain covenants of Seller or its Affiliates (A) not to compete in any line of business, with any Person or in any geographical area; (B) not to offer or sell any product or service to any Person or class of Persons; (C) to offer, sell or purchase any product or service to or from any Person or class of Persons on an exclusive basis or to purchase “full requirements” from any Person; or (D) granting “most favored nation” or similar rights to any Person;
(vii) Contracts that establish any partnership, joint venture or similar arrangement involving the sharing of profits or losses with a Third Party third party;
(viii) Contracts with a Governmental Authority, except for normal and customary agreements for the provision of utilities, water or sewer that are ancillary to another written Contract with provided on the same Third Party basis of a tariff or similar generally applicable rates, terms and that conditions and do not involve aggregate consideration or payments in excess of $100,000 individually or $100,000 in the aggregate;
(ix) Contracts that involve, as parties thereto, one or more of Seller or its Affiliates, on the one hand, and any of the directors, officers or other Affiliates of Seller, their Affiliates or any of their respective Related Persons, on the other hand;
(x) Contracts requiring Seller or any of its Affiliates to make any capital expenditures in excess of $100,000 individually or $100,000 in the aggregate; 41
(xi) Contracts that constitute an a Tax sharing agreement, Tax indemnity agreement, a “payment in lieu of Taxes” (or similar) agreement, or a Tax-related closing agreement (other than any customary commercial agreement or arrangement entered into in the ordinary course of business that is not primarily related to Taxes);
(xii) except as described above, all other Contracts (A) for the future sale or acquisition of any Purchased Asset or (B) that grant a right or option to purchase any Purchased Asset (including, in each case, any potential payment to exercise any right or option related to any of the Purchased Assets), other than, in each case, Contracts entered into relating to any asset or property with a value of less than $100,000 for each individual Contract or $100,000 in the aggregate for a series of related Contracts in the ordinary course of business;
(xiii) Contracts (A) pursuant to which Seller licenses any material Intellectual Property, other than click-wrap, shrink-wrap and off-the-shelf Software licenses for unmodified Software in object code form that are commercially available on reasonable terms to the public generally with license, maintenance, support and other fees less than $0 per year; (B) pursuant to which Seller licenses Intellectual Property to any Affiliate or other third party; or (C) pertaining to the development, maintenance or support of any Transferred Intellectual Property;
(xiv) Contracts providing for indemnification by Seller, except for any such Contract that is not material to the Purchased Assets, Assumed LiabilityLiabilities or Business and is entered into in the ordinary course of business; and
(xv) except as described above, all other Contracts requiring payments by or to Seller or any of its Affiliates in excess of $100,000 for each individual Contract or $100,000 in the aggregate for a series of related Contracts.
(b) Except as set forth on Section 3.15(b) of the Seller Disclosure Schedule or as may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium, and other similar state or federal debt relief laws in effect from time to time and to general principles of equity; (i) each Material Contract is as of the date hereof and will be as of the Closing in full force and effect and does as of the date hereof and will as of the Closing constitute a legal, valid and binding obligation, enforceable in accordance with its terms, of the applicable Seller or its applicable Affiliates and, to the Knowledge of Seller, the other parties thereto; (ii) none of Seller or its Affiliates, as applicable or, to the Knowledge of Seller, any other party to any Material Contract, is in breach, violation or default (and no event, condition or omission exists or has occurred that after notice or the lapse of time or both) thereof in any material respect; (iii) none of Seller or its applicable Affiliates has received any written claim or notice or, to the Knowledge of Seller, any oral claim or notice of any material breach of or material default of any of Seller or its Affiliates under any Material Contract that is unresolved; and (iv) no event, condition or omission exists or has occurred which, individually or in the aggregate, would reasonably be expected to result in a material breach of or a material default under any Material Contract by any of Seller or its Affiliates or, to the Knowledge of Seller, any other party thereto. True and complete copies of each Material Contract (including any applicable amendments, supplements and change orders thereto), in each case as amended and in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of SellerAgreement, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not made available to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancePurchaser.
(iic) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of authorized to assume and assign the Material Assumed Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contractto Purchaser. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.42
Appears in 1 contract
Material Contracts. (ia) Section 5.1(i)(i) 3.16 of the Company Disclosure Schedules sets forth Schedule contains a true complete and accurate list correct list, as of the date of this Agreement, of each Contract (other than purchase orders issued by Seller this Agreement) described below in this Section 3.16(a) under which the Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) which any of their respective properties or assets is subject, in effect each case as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any (all Contracts of the Acquired Assets is bound type described in the following categories (this Section 3.16(a) are referred to herein as the “Company Material Contracts”):
(Ai) any Contract establishing a that limits in any respect the freedom of the Company or any Company Subsidiary to compete in any line of business, area or geographic region, or with any Person, including any Contract that requires the Company or any Company Subsidiary to work exclusively with any Person in any area or geographic region, that restricts hiring or soliciting for hire the employees or contractors of any Person or which by its terms would so limit the freedom of Parent and the Company Subsidiaries after the Effective Time;
(ii) any partnership, joint venture or venture, strategic alliance, collaboration, co-promotion or like arrangementresearch and development project Contract;
(iii) any Contract that (A) grants any exclusive rights to any Person, including any exclusive license or supply or distribution agreement or other exclusive rights, (B) grants any rights of first refusal, rights of first negotiation or similar rights with respect to any product, service or Material Intellectual Property, (C) contains any provision that requires the purchase of all or any portion of the Company’s or any Company Subsidiaries’ requirements from any Person, or involving a sharing any other similar provision for more than $75,000 in the twelve (12) month period following the date hereof, (D) grants “most favored nation” or similar rights or (E) contains pricing commitments with another respect to future purchases by any Person of profitsthe products or services of the Company or any Company Subsidiary for more than $75,000 in the twelve (12) month period following the date hereof;
(iv) any Contract not otherwise described in any other subsection of this Section 3.16(a) that (A) is reasonably expected to involve future expenditures by the Company or any Company Subsidiary of more than $75,000 in the twelve (12) month period following the date hereof and (B) cannot be terminated by the Company or such Company Subsidiary on less than ninety (90) days’ notice without material payment or penalty, losses, costs, royalties, milestone payments, other than ordinary course product or Liabilities raw material purchase contracts;
(v) any acquisition or divestiture Contract involving consideration in excess of Seller $75,000 entered into in the past three (3) years;
(vi) any material licensing Contract;
(vii) any Contract that contains indemnities or other obligations (including “earn-out” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $75,000 in the twelve (12) month period following the date hereof;
(viii) any Contract relating to outstanding Indebtedness of the Acquired Assets Company or the DevelopmentCompany Subsidiaries for borrowed money or any financial guaranty thereof (whether incurred, manufactureassumed, guaranteed or Commercialization secured by any asset) in an amount in excess of $75,000 other than (A) Contracts solely among the Company and any Compound or Product, including the conduct of any clinical trials;
Company Subsidiary and (B) any Contract containing covenants prohibiting or limiting Contracts relating to Indebtedness explicitly included in the right consolidated financial statements in the Company SEC Documents and which are publicly available prior to compete or engage the date hereof in any aspect of the Product Operations or prohibiting or restricting Seller’s ability unredacted form as an exhibit to conduct the Product Operations with any Person or in any geographical areasuch Company SEC Documents;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(Dix) any Contract pursuant to which Seller has obtained the Company or any Company Subsidiary is a party that creates or grants a Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Company Permitted Liens;
(x) any Contract between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate (other than a wholly-owned Company Subsidiary) of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand;
(xi) any Contract (other than readily available, “off-the-shelf” commercial licenses, or “shrink-wrap” or “click-through” agreements, terms of use or services, or similar agreements that are generally available on nondiscriminatory pricing terms to the extent the licenses contained therein are incidental to such Contracts, immaterial, nonexclusive and granted in the ordinary course of business) under which the Company or any Company Subsidiary is granted any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical studythird party, which study Contract is complete material to the Company or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesany Company Subsidiary;
(Exii) any Contract under which Seller pays the Company or receives milestone any Company Subsidiary has granted to a third party any license, option or royalty payments relating other right or immunity (including a covenant not to su▇ ▇r right to enforce or prosecute any patents) with respect to any Compound or Product Intellectual Property, which Contract is material to the Company or any Product IPCompany Subsidiary;
(Fxiii) any stockholders, investors rights, registration rights or similar agreement or arrangement;
(xiv) any collective bargaining agreement or other Contract with any labor union;
(xv) any Contract relating to the creation of Liens on any Acquired Assets employment or the guarantee of the payment of Liabilities or performance of obligations compensation of any other Person by Seller relating to employee (A) with an aggregate annual salary and cash bonus in excess of $75,000 or containing any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operationschange-in-control, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements severance payment obligations or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testingpayment, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(KB) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsthat is not terminable at will; and
(Oxvi) any other Contract that is material to involving the Development, manufacture or sale settlement of any Compound claim, action or Productproceeding or threatened claim, action or proceeding (or series of related, claims actions or proceedings) which shall involve payments after the date hereof in each caseexcess of $75,000.
(b) The Company has made available to Parent correct and complete copies of all Company Material Contracts, including any amendments thereto. Except as currently conducted by Sellerset forth on Section 3.16(b) of the Company Disclosure Schedule, other than any Contract relating to (i) real propertyneither the Company nor any Company Subsidiary is in breach of or default under the terms of any Company Material Contract and, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All as of the Material Contracts are valid and binding agreements of Sellerdate hereof, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Sellerthe Company, no other party to a any Company Material Contract is in material breach of or material default under the terms of such any Company Material Contract and no event has occurred that with notice (ii) each Material Contract, in all material respects, is in full force and effect and is a legal, valid and binding agreement of the Company or lapse of timea Company Subsidiary, or bothas the case may be, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing orand, to the Knowledge of Sellerthe Company, otherwise provided notice of its intention to repudiate any provision of a Material Contract each other party thereto, Enforceable against the Company or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenCompany Subsidiary, or as the case may be, and to the Knowledge of Seller otherthe Company, notice regarding any material violation against the other party or breach of, or default under, any Material Contract or Nondisclosure Agreementparties thereto.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Ceres, Inc.)
Material Contracts. (ia) Section 5.1(i)(i) of Except for this Agreement and except for Contracts filed as exhibits to the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect Company SEC Reports, as of the date hereof, none of this Agreement to which Seller the Company or its Subsidiaries is a party or which was entered into by or on behalf of Seller, or by which to nor are any of the Acquired Assets is Company’s or its Subsidiaries’ properties or assets bound in the following categories (the “Material Contracts”):by:
(Ai) any Contract establishing a joint venture or collaboration, cothat would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to F under the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsExchange Act;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(Cii) any Contract granting most favored nation a right of first refusal, first offer or exclusive rights relating to any Compound or Product to any other Personfirst negotiation;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation formation, creation, operation, management or control of Liens on any Acquired Assets a partnership, joint venture, limited liability company or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assetssimilar arrangement;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(Iiv) any Contract for the research acquisition, sale or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: lease (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller including leases in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside financing transactions) of properties or assets of the U.S. Company that have a fair market value or purchase price of more than RMB 35,000,000 (other than local representative agreements and legal representative agreements by merger, purchase or similar arrangements for local representation sale of assets or stock or otherwise) entered into with a contract research organization since the Audit Date or, if prior to that date, have representations, warranties or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses indemnities that remain in effect or as to commercially available software or cloud or software as a service agreements; and which claims are pending;
(v) service agreements with quality assurance auditorsany Contract involving the payment or receipt of amounts by the Company or its Subsidiaries, meeting plannersor relating to indebtedness for borrowed money or any financial guaranty, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)of more than RMB 35,000,000;
(Jvi) any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any of its Subsidiaries to compete in any geographic area, industry or line of business or grants material exclusive rights to the counterparty thereto;
(vii) any Contract for that contains a put, call or similar right pursuant to which the developmentCompany or any of its Subsidiaries could be required to purchase or sell, manufactureas applicable, supply, packaging, labeling, distribution, analytical testing, any equity interests of any Person or storage assets that have a fair market value or purchase price of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreementsmore than RMB 35,000,000;
(Kviii) any Contract for the ongoing or planned analytical testing or storage that contains restrictions with respect to (A) payment of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling dividends or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance distributions with respect to equity interests of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product Company or any of its Subsidiaries, (B) pledging of share capital of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsCompany or any of its Subsidiaries or (C) the issuance of a guaranty by the Company or any of its Subsidiaries; and
(Oix) any other Contract that is material between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Development, manufacture or sale of any Compound or Product, Exchange Act (all such Contracts described in each case, as currently conducted by Seller, other than any Contract relating to clauses (i) real propertythrough (x) collectively, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancethe “Material Contracts”).
(iib) All Each of the Material Contracts are constitutes the valid and legally binding agreements obligation of Sellerthe Company or its Subsidiaries, enforceable in accordance with their terms, its terms subject to the Enforceability ExceptionBankruptcy and Equity Exception and is in full force and effect, except where the failure to be valid and binding or to be in full force and effect would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Other than There is no default under any Material Contracts entered into on behalf of SellerContract so listed either by the Company or, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of the Company’s knowledge, by any of the Material Contracts or Nondisclosure Agreementsother party thereto, and no event has occurred that with the lapse of time or the giving of notice or lapse of time, or both, both would constitute a material default thereunder by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing Company or, to the Knowledge of SellerCompany’s knowledge, otherwise provided notice of its intention any other party thereto, in each case except as would not reasonably be expected to repudiate any provision of have, individually or in the aggregate, a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementAdverse Effect.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (i) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of SCHEDULE 2.6 lists each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller the Company or any Subsidiary is a party or to which was entered into by the Company, any Subsidiary or on behalf any of Seller, their respective Properties is subject or by which any of the Acquired Assets their property is bound in the following categories (the “that is deemed a Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following this Agreement. Unless otherwise so noted on SCHEDULE 2.6, each such Contract was entered into in the Ordinary Course ordinary course of business. Each Contract that (a) obligates the Company to pay an amount of Five Thousand Dollars ($5,000) or more (individually or in the aggregate) after ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) has an unexpired term as of June 1, 1998 in excess of one month, (c) represents a contract upon which the Business andis substantially dependent or which is otherwise material to the Business, (d) provides for an extension of credit inconsistent with normal and customary credit terms, (e) limits or restricts the ability of the Company or any Subsidiary to compete or otherwise to conduct its business in each caseany manner or place, that are not Acquired Business Contracts and are deemed Excluded Liabilities: including confidentiality agreements, (f) provides for a guaranty, suretyship, performance bond, or indemnity by the Company or any Subsidiary, (g) grants a power of attorney, agency or similar authority to another person or entity, (h) contains a right of first refusal, (i) Nondisclosure Agreements; grants any Encumbrance upon any asset of the Company or any Subsidiary, (iij) services agreements containing non-exclusive licenses to Intellectual Property Rights included involves bonus, stock option, severance, golden parachute, deferred compensation, special retirement, consulting or similar arrangements for the benefit of one or more of the current or former directors, officers or employees of the Company or any Subsidiary, (k) creates any partnership or joint venture, (l) contains a right or obligation other than in the Acquired Assets for ordinary course of business of any Affiliate, officer or director or any Associate, of Seller, the sole purpose Company or any Subsidiary to the Company or any Subsidiary, or (m) requires the Company or its Subsidiaries to buy or sell goods or services with respect to which there will be material losses or will be costs and expenses materially in excess of a service provider performing services expected receipts (other than as provided for or otherwise reserved against on behalf the most recent of Seller; the balance sheets referred to in Section 2.4) or (iiin) agreements with clinical investigators was not made in the ordinary course of business, shall be deemed to be a Material Contract and clinical sites for has been identified on such SCHEDULE 2.6. True, correct and complete copies of the conduct of a clinical studyMaterial Contracts appearing on SCHEDULE 2.6, which study is complete or substantially complete at the relevant clinical sites as of including all amendments and supplements entered into through the date of this Agreement, have been delivered to Buyer. Each Material Contract is valid and subsisting; (iv) licenses the Company or the applicable Subsidiary has duly performed all of its material obligations thereunder to commercially available software or cloud or software as a service agreementsthe extent that such obligations to perform have accrued; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are except as will not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is be material to the DevelopmentCompany, manufacture no breach or sale default, alleged breach or default, or event which would (with the passage of any Compound time, notice or Product, in each caseboth) constitute a breach or default thereunder by the Company or its Subsidiary, as currently conducted applicable, or, to the best knowledge of the Company, any other party or obligor with respect thereto, has occurred or as a result of this Agreement or performance thereof will occur. Consummation of the transactions contemplated by Seller, other than this Agreement will not (and will not give any Contract relating to (iperson a right to) real property, (ii) employeesterminate or modify any rights of, or employee compensation accelerate or benefit mattersaugment any obligation of, including the Company or any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of Subsidiary under any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementContracts.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Stock Purchase and Contribution Agreement (Western Investment Real Estate Trust)
Material Contracts. (ia) Section 5.1(i)(iSchedule 2.8(a) of the Disclosure Schedules Schedule sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Sellerforth, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement, each of the Company Agreements of the type described below (other than (i) those that have expired or been terminated and do not have material surviving obligations other than those that commonly survive termination (such as those relating to protection of confidential information or indemnification) and (ii) those that are Non-Scheduled Contracts) (each, a “Material Contract”): (i) any Company Agreement providing for or incurring Indebtedness, including any Company Agreement providing for a guaranty, direct or indirect, primary or secondary, of any obligation for borrowing or otherwise, excluding endorsements made for collection in the Ordinary Course; (ivii) licenses any Real Property Leases; (iii) any Company Agreement to commercially available software or cloud or software as which any Insider is a service agreements; party (excluding employee offer letters and (v) proprietary information inventions assignment agreements (or similar intellectual property assignment agreements, non-compete agreements or confidentiality agreements) with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following employees entered into in the Ordinary Course Course) (each such Company Agreement, an “Insider Contract”); (iv) any Company Agreement with a Top Supplier; (v) any Company Agreement that contains a non-competition provision in favor of Business anda third party relating to the businesses of the Company or its Subsidiaries, that grants the other party or any other Person “most favored nation” status or any rights of exclusivity as a customer or supplier, or that grants a right of first refusal in each case favor of a third party with respect to the disposition of any material asset or business of the Company or its Subsidiaries; (vi) any Company Agreement with an employee, service provider, or any third party or independent contractor of the Company with severance, change of control or other termination-related provisions under which the Company would have liability; (vii) any Company Agreement that is an equity partnership, joint venture or similar Contract; (viii) any Company Agreement relating to the acquisition or disposition of any business; (ix) any Company Agreement pursuant to which the Company or a Subsidiary of the Company grants an exclusive license of any of the Company Owned Intellectual Property; (x) any Company Agreement with any reseller, distributor or system integrator with respect to the resale or distribution of Company Products; and (xi) any Company Agreement with a Top Customer. 22
(b) Prior to the date of this Agreement, Sellers have delivered to Buyer correct and complete copies of all written Material Contracts, and summaries of all Material Contracts that are unwritten, if any.
(c) With such exceptions as do not Acquired Business Contracts and are deemed Excluded Liabilitiesconstitute, individually or in the aggregate, a Material Adverse Effect: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All all of the Material Contracts are in full force and effect and are valid and binding agreements on and enforceable against the Company or Subsidiary of Seller, enforceable the Company party thereto in accordance with their termsterms and, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Sellerthe Company, on and against the other parties thereto, except (x) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting the rights and remedies of creditors generally and to general principles of equity or (y) with respect to the period beginning after the date of this Agreement and ending on the Closing Date, for Material Contracts terminated by the counterparty or that expire in accordance with their respective terms; (ii) neither the Company nor any of its Subsidiaries is, and, to the Knowledge of the Company, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract is, in breach of, or Nondisclosure default under, any Material Contract; and (iii) as of the date of this Agreement. No party , neither the Company nor any of its Subsidiaries has repudiated in writing given to or, to the Knowledge of Sellerthe Company, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person Person, at any writtentime since January 1, or to the Knowledge of Seller other2019, any written notice regarding any material actual, alleged, possible or potential violation or breach of, or default under, any Material Contract or Nondisclosure AgreementContract.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (a) Except for this Agreement, Section 3.17 of the Company Disclosure Letter contains a complete and correct list, as of the entry into this Agreement, of each Contract, including all amendments, supplements, and side letters thereto that modify each such Contract, described below in this Section 3.17(a) to which the Company or any Company Subsidiary is a party or by which they are bound or by which they or any of their respective properties or assets are subject or bound, as of the entry into this Agreement, other than any Company Leases (all Contracts of the type described in this Section 3.17(a), whether or not set forth on Section 3.17 of the Company Disclosure Letter, being referred to herein as the “Material Contract”):
(i) each Contract that limits the freedom of the Company, any Company Subsidiary or any of their respective affiliates to compete or engage in any line of business or geographic region or with any Person or sell, supply or distribute any product or service or that otherwise has the effect of restricting the Company, the Company Subsidiaries or any of their respective affiliates (including Parent and its affiliates after the Effective Time) from the development, marketing or distribution of products and services, in each case, in any geographic area, in each case, both (A) in any geographic area and (B) in a manner that is material to the Company and the Company Subsidiaries, taken as a whole;
(ii) any material joint venture, strategic alliance (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries) or similar Contract;
(iii) each acquisition or divestiture Contract that (A) requires future acquisition or divestiture by the Company with a value in excess of $5,000,000, or (B) contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making by the Company or any Company Subsidiary of future payments in excess of $5,000,000;
(iv) each Contract that gives any Person the right to acquire any assets of the Company or any Company Subsidiary (excluding ordinary course commitments to purchase Company Products) after the entry into this Agreement with consideration of more than $5,000,000;
(v) each Contract pursuant to which the Company or any Company Subsidiary (A) grants any license, covenant not to assert or similar right to any third party under or to any Company Intellectual Property that is material to the business of the Company and the Company Subsidiaries, taken as a whole, except Ordinary Course Licenses, or (B) is granted a license, covenant not to assert, or similar right under or to any third party’s Intellectual Property that is material to the business of the Company and the Company Subsidiaries, taken as a whole, other than non- exclusive licenses granted on substantially standard terms with respect to commercially available Software or information technology services;
(vi) each Contract not otherwise described in any other subsection of this Section 5.1(i)(i3.17(a) pursuant to which the Company or any Company Subsidiary is obligated to pay, or entitled to receive, payments in excess of $5,000,000 during the Company’s Fiscal Year most recently ended prior to entry into this Agreement;
(vii) any Contract that obligates the Company or any Company Subsidiary to make any capital investment or capital expenditure outside the ordinary course of business and in excess of $5,000,000 per annum;
(viii) each Contract that is a Material Customer Agreement or a Material Supplier Agreement;
(ix) each Contract that grants any right of first refusal or right of first offer that is material to the Company and the Company Subsidiaries, taken as a whole, with respect to any material assets of the Company or the Company Subsidiaries;
(x) each Contract that contains any exclusivity rights or “most favored nations” provisions or minimum use, supply or display requirements that are binding on the Company or its affiliates (including Parent and its affiliates after the Effective Time) and, in each case, are material to the Company and the Company Subsidiaries, taken as a whole;
(xi) each Contract relating to outstanding Indebtedness for borrowed money (other than intercompany Indebtedness owed by the Company or any Company Subsidiary) of the Disclosure Schedules sets forth Company or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in an aggregate principal amount in excess of $5,000,000;
(xii) each Contract governing any collaboration, co-promotion, strategic alliance or design project contract which, in each case, is material to the Company and the Company Subsidiaries, taken as a true whole;
(xiii) each Contract involving any material collective bargaining agreement or other material Contract with any labor union (or similar organization); and
(xiv) any Contract not otherwise described in any other subsection of this Section 3.17(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company.
(b) True and accurate list complete copies of each Material Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement hereof have been made available to which Seller is a party Parent or which was entered into by or on behalf of Seller, or by which any publicly filed with the SEC prior to the date hereof. None of the Acquired Assets Company or any Company Subsidiary is bound in (or has received any written claim of) breach or default under the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization terms of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, time or both, both that would constitute a material breach or default thereunder by such the Company or any of the Company Subsidiaries, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Company’s Knowledge, as of the entry into this Agreement, no other party under to any Material Contract is in breach of or Nondisclosure Agreementdefault under the terms of any Material Contract where such breach or default has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. No Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Material Contract is a valid, binding and enforceable, obligation of the Company or the Company Subsidiary which is party has repudiated in writing orthereto and, to the Knowledge Company’s Knowledge, of Sellereach other party thereto, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenand is in full force and effect, or in each case, subject to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementEnforceability Limitations.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement
Material Contracts. (i) Except for (1) this Agreement, (2) Contracts filed as exhibits to or incorporated by reference into the Company Reports not less than two business days prior to the date hereof and (3) Contracts set forth on Section 5.1(i)(i5.1(j)(i) of the Company Disclosure Schedules sets forth a true and accurate list Letter, neither the Company nor any of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect its Subsidiaries is, as of the date of this Agreement to which Seller is hereof, a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):to:
(A) any Contract establishing that would be required to be filed by the Company as a joint venture or collaboration, co"material contract" pursuant to Item 601(b)(10) of Regulation S-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to K under the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialsSecurities Act;
(B) any Contract containing covenants prohibiting that (x) materially limits or limiting otherwise materially restricts the right ability of the Company or its Subsidiaries to engage or compete or engage in any aspect business or geographic area (or that, following the Merger, would by its terms apply such limits or other restrictions to Parent or its Subsidiaries) or (y) has any standstill or similar agreement pursuant to which the Company or its Subsidiaries has agreed not to acquire any assets or securities of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaanother Person;
(C) any Contract granting most favored nation under which the Company or exclusive its Subsidiaries has (1) licensed or been granted rights relating from a third party in any Intellectual Property (as defined in Section 5.1(p)(vi)) that is material to the continued operation of the business of the Company or its Subsidiaries, other than Contracts with respect to generally commercially available off-the-shelf software or any software licensed under a "free software," "copyleft" or similar license; or (2) licensed or granted rights to any Compound or Product to any material Company Intellectual Property, other Personthan in the case of (1) and (2), non-exclusive licenses granted in the ordinary course of business;
(D) any Contract containing a put, call, right of first refusal or similar right pursuant to which Seller has obtained the Company or granted its Subsidiaries could be required to purchase or sell, or otherwise acquire or transfer, as applicable, any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee material equity interests of any Intellectual Property Rights relating Person or to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeescontribute material capital;
(E) any Contract under which Seller pays containing "most favored nation," "exclusivity" or receives milestone similar provisions, in each case other than any such Contracts that (1) may be cancelled without material liability or royalty payments relating penalty to any Compound the Company or Product its Subsidiaries upon notice of ninety (90) days or any Product IPless or (2) are immaterial to the Company and its Subsidiaries, taken as a whole;
(F) any Contract relating to (other than the creation of Liens on any Acquired Assets or the guarantee of Existing Indentures) that prohibits the payment of Liabilities dividends or performance distributions in respect of obligations the capital stock of any other Person by Seller relating to any Compound or Product the Company or any Acquired Assetsof its Subsidiaries, prohibits the pledging of the capital stock of the Company or any Subsidiaries of the Company or that prohibits the incurrence of indebtedness for borrowed money or guarantees by the Company or any Subsidiary of the Company;
(G) any Contract entered into (1) providing for the disposition or acquisition of capital stock or other equity interests or assets by Seller the Company or any of its Affiliates Subsidiaries in settlement any case for consideration in excess of any Legal Proceeding or other dispute relating $1,000,000, to the Acquired Assets extent the Company continues to have any indemnification or similar obligations outstanding thereunder or (2) pursuant to which the Product OperationsCompany or any of its Subsidiaries will acquire any material ownership interest in, including the conduct of or material assets of, any clinical trialsother Person;
(H) any Contract that limits Seller’s ability pursuant to make generally available which the Company or any versions of any Compound its Subsidiaries has "earn-out" or Product developed by or for Sellerother material contingent payment obligations;
(I) any Contract for mortgages, indentures, guarantees, loans or credit agreements, security agreements, swaps, derivatives or hedging agreements or other Contracts relating to the research borrowing of money or Development extension of any Compound credit or Productother indebtedness (in each case, other than any of the following foreign exchange forward Contracts entered into in the Ordinary Course ordinary course of Business andbusiness), in each case that are not Acquired Business Contracts in excess of $20,000,000, other than (1) accounts receivables and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigatorspayables in the ordinary course of business; (ii2) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside loans to Subsidiaries of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreementsCompany in the ordinary course of business; and (v3) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)extensions of credit to customers in the ordinary course of business;
(J) any Contract providing for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage cash severance payments in excess of the active pharmaceutical ingredients and $1,000,000 (other raw materials for any Compound or Product, and related quality agreementsthan those pursuant to which such severance payment is required by applicable Law);
(K) any Contract that provides for the ongoing establishment or planned analytical testing governance of a joint venture, partnership, limited liability company or storage other similar agreement with any third Person (it being understood that this clause (K) does not include commercial arrangements where there is no joint ownership by the Company and its counterparty of biological specimens collected from subjects participating equity in clinical trials of any Compound or Producta Person);
(L) any Contract with a customer of the Company or any of its Subsidiaries (1) under which the Company and its Subsidiaries generated revenue in excess of $10,000,000 in the aggregate for the distribution, promotion, marketing, reselling fiscal year ended 2017 or other Commercialization (2) under which the Company and its Subsidiaries are expected to generate revenue in excess of any Compound or Product$10,000,000 in the aggregate for fiscal year 2018;
(M) any Contract with a vendor or supplier (including outsourcing services) of the Company or any of its Subsidiaries (1) under which the Company and its Subsidiaries made payments in excess of $10,000,000 in the aggregate for the maintenance fiscal year ended 2017 or (2) under which the Company and its Subsidiaries are expected to make payments in excess of $10,000,000 in the safety database aggregate for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Productfiscal year 2018;
(N) any Contract that is a collective bargaining agreement or other agreement with any Governmental Authority relating to any Compound labor union, works council, or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; andlabor organization;
(O) any Contract with a Governmental Entity that is a settlement, conciliation, or similar agreement that imposes any material monetary or other material obligation upon the Company or its Subsidiaries after the date of this Agreement;
(P) any Government Contract under which the Company and its Subsidiaries (1) generated revenue in excess of $5,000,000 in the aggregate for the fiscal year ended 2017 or (2) are expected to generate revenue in excess of $5,000,000 in the aggregate for fiscal year 2018; or
(Q) any Contract that is material between the Company or its Subsidiaries and any of their respective directors or officers or any Person beneficially owning five percent (5%) or more of the outstanding Shares. Each such Contract described in clauses (A) through (Q) above of this Section 5.1(j)(i) (and those Contracts that would be Material Contracts but for the exception of being filed as exhibits to the Development, manufacture or sale of any Compound or Product, in each case, Company Reports) is referred to herein as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancea "Material Contract."
(ii) All Each of the Material Contracts are is valid and binding agreements on the Company or its Subsidiaries and, to the Company's Knowledge, each other party thereto and is in full force and effect, except for any scheduled expiration of Seller, enforceable such Contracts in accordance with their termsterms and except for such failures to be valid and binding or to be in full force and effect that, subject individually or in the aggregate with other such failures, are not reasonably expected to have a Company Material Adverse Effect. None of the Company, its Subsidiaries or, to the Enforceability Exception. Other than Material Contracts entered into on behalf of SellerCompany's Knowledge, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller any other party is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract, in each case except for such defaults that, individually or in the aggregate with other such defaults, are not reasonably expected to have a Company Material Adverse Effect. To the Knowledge of SellerThe Company has made available to Parent true, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate correct and complete list copies of each Material Contract, including all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereofmaterial amendments, waivers and changes thereto.
Appears in 1 contract
Material Contracts. Section 2.10 of the Seller Disclosure Schedules contains a complete and correct list of the following Contracts (each, a “Material Contract”) pertaining to the Business and/or Seller’s ownership and/or use of the Purchased Assets: (i) Section 5.1(i)(iany employment agreements, employment contracts, retention agreements, consulting agreements or independent contractor agreements of Seller; (ii) of the Disclosure Schedules sets forth a true and accurate list of each Contract (any collective bargaining agreement or other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liabilityany labor organization, union or association; (iii) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, compete that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for limits the conduct of a clinical study, which study is complete the Business or substantially complete at the relevant clinical sites as use of the date of this AgreementPurchased Assets; (iv) licenses to commercially available software any Contract with (A) ▇▇▇▇▇*s or cloud its Affiliates or software as (B) a service agreementscurrent or former officer, director, member, manager, partner or employee of Seller, ▇▇▇▇▇*s or any of their respective Affiliates or family members; and (v) assignment agreements any lease, sublease or similar Contract with employeesany Person under which the Seller is a lessor or sublessor of, including proprietary information and invention assignment agreements with employees;
or makes available for use to any Person, any of the Purchased Assets; (Evi) any license, option or other Contract relating in whole or in part to the Conveyed Intellectual Property; (vii) any Contract under which the Seller pays has borrowed any money from, or receives milestone issued any note, bond, debenture or royalty payments relating to other evidence of indebtedness to, any Compound Person or Product or guaranteed the indebtedness of any Product IP;
Person; (Fviii) any Contract relating to under which the creation Seller has, directly or indirectly, made any material advance, loan, extension of Liens on credit or capital contribution to, or other investment in, any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
Person; (Gix) any Contract entered into by granting an Encumbrance upon any of the Purchased Assets; (x) any Contract for any joint venture, partnership or similar arrangement pertaining to the Business; and (xi) any other Contract to which the Seller (or any of its Affiliates in settlement of any Legal Proceeding Affiliates) is a party or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product which it or any of the Acquired Assetsits assets is bound or subject, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture use or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All operation of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability ExceptionPurchased Assets. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser Buyer a correct and complete copy of each written Material Contract. With respect to each Assumed Contract, except as set forth in Section 2.10 of the Seller Disclosure Schedule: (i) the Assumed Contract is a legal, valid and binding obligation of Seller and, to the knowledge of Seller, each other party thereto, and is in full force and effect; (ii) Seller is not in breach of or default in any material breach or material default of any of the Material Contracts or Nondisclosure Agreementsrespect, and no event has occurred that with the passage of time or giving of notice or lapse of time, or both, both would constitute such a breach or default in any material default respect by Seller Seller, under any Material the Assumed Contract. To ; and (iii) to the Knowledge knowledge of Seller, no other party to a Material the Assumed Contract is in breach of or default in any material breach or material default of such Material Contract respect, and no event has occurred that with the passage of time or giving of notice or lapse of time, or both, both would constitute such a breach or default in any material default respect by such other party party, under any Material Contract or Nondisclosure Agreementsuch Assumed Contract. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of neither Seller relating nor ▇▇▇▇▇*s has received any written or, to the IQVIA Agreement are $3,800,000Seller’s knowledge, which amount is net of all deposits (including the deposit referenced in clause (B))oral notice that any counterparty to any Material Contract threatened to terminate, advances and prepayments, and (B) suspend or not renew any Material Contract. Seller has a credit available under the IQVIA Agreement in an amount equal provided to $2,480,000.
(iv) Section 5.1(i)(iv) Buyer true and correct copies of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Material Contracts as of the date hereofthat constitute Assumed Contracts.
Appears in 1 contract
Material Contracts. Except as specifically identified in subsections (ia) Section 5.1(i)(ithrough (1) of Schedule 3.10 of the Seller Disclosure Schedules sets forth Letter, Seller is not a true party or subject to any of the following in connection with the Business:
(a) any Contract providing for payments (whether fixed, contingent or otherwise) by or to Seller in an aggregate amount of $10,000 or more;
(b) any dealer, distributor, OEM (original equipment manufacturer), VAR (value added reseller), marketing, sales representative or similar agreement under which any third party is authorized to sell, sublicense, lease, distribute, market or take orders for, any product, service or technology of Seller;
(c) any Contract providing for the development of any software, content (including textual content and accurate list visual, photographic or graphics content), technology or Intellectual Property Right for (or for the benefit or use of) Seller, or providing for the purchase by (or for the benefit or use of) or license to Seller of each Contract any software, content (other than purchase orders issued including textual content and visual, photographic or graphics content), technology or Intellectual Property Right, which software, content, technology or Intellectual Property Right is in any manner used or incorporated (or is presently contemplated by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liabilitybe used or incorporated) in effect as connection with any aspect or element of any Software, product, service or technology of Seller which is included in the Purchased Assets;
(d) any Contract which has involved, or is reasonably expected to involve, a sharing of revenues, profits, cash flows, expenses or losses by Seller with any other Person;
(e) any Contract containing indemnification, warranty or similar provisions with respect to products or services other than an obligation to repair or replace products in the event of defective workmanship or materials provided by Seller, other than in the ordinary course of the date of this Business;
(f) any Contract that restricts Seller from freely setting prices (including most favored customer pricing provisions) or that grants any exclusive rights to any other Person;
(g) any Seller IP Rights Agreement (as defined in Section 3.12(b)); or
(h) any other Contract to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding assets or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that properties are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract bound that is material to the Development, manufacture Business or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability ExceptionPurchased Assets. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct A true and complete copy of each written Material Contract. Seller is not in material breach or material default Contract and document required by subsections (a) through (h) of any this Section 3.10 to be listed on Schedule 3.10 of the Material Contracts Seller Disclosure Letter (the "MATERIAL CONTRACTS") has been delivered or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party made available to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementBuyer's counsel.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (CDC Corp)
Material Contracts. (ia) Section 5.1(i)(i) of the Disclosure Schedules Schedule 4.13 sets forth a true and accurate list of each Contract all Contracts (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect collectively, “Material Contracts”), as of the date hereof, which provide for annual payments or expenses by, or annual payments or income to, the Company or any of this Agreement its Subsidiaries in excess of $100,000 (other than (i) purchase and sale orders made in the Ordinary Course and (ii) Leased Real Property), as well as all of the following to which Seller the Company or any of its Subsidiaries is a party party:
(i) all partnership, joint venture or which was limited liability company contract arrangements or agreements, including any profit-sharing agreement, cost-sharing agreement, loss-sharing agreement or similar Contracts;
(ii) all settlement and similar agreements involving payments after Closing in excess of $50,000 or any injunctive or similar equitable obligations on the Company or any of its Subsidiaries;
(iii) all license agreements or agreements in respect of similar rights granted or held, except for licenses with respect to pre-packaged software applications and rights to display and use the marks and names of third parties pursuant to agreements with the Company’s or its Subsidiaries’ suppliers;
(iv) each Company Contract relating to the license of any patent, copyright, trade secret or other Proprietary Right from the Company involving annual payments in excess of $75,000;
(v) each Contract relating to the acquisition, transfer, development or sharing of any technology, Proprietary Right (including any joint development agreement, technical collaboration agreement or similar agreement entered into by the Company) involving annual payments in excess of $75,000;
(vi) each Contract with any material service providers, manufacturers, suppliers, distributors, partners or on behalf persons having similar business relationships with the Company or its Subsidiaries involving annual payments in excess of Seller, $50,000;
(vii) all Contracts or by which other documents that substantially limit the freedom of the Company or any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
its Subsidiaries: (A) any Contract establishing a joint venture to conduct or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect line of the Product Operations business or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaarea after the Closing Date; (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person; or (C) to develop or distribute any technology;
(Cviii) any Contract each Contract: (A) granting most favored nation or exclusive rights relating to license, market, sell or deliver any Compound of the products or Product to services of the Company or its Subsidiaries; or (B) otherwise contemplating an exclusive relationship between the Company or its Subsidiaries and any other Person;
(Dix) each Contract creating or involving any Contract pursuant to which Seller has obtained agency relationship, distribution arrangement or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesfranchise relationship;
(Ex) any Contract under which Seller pays all agreements or receives milestone or royalty payments relating to any Compound or Product or any Product IPother documents of the Company and its Subsidiaries in respect of Indebtedness;
(Fxi) all employment Contracts between any current employee or consultant of the Company or any of its Subsidiaries, on the one hand, and the Company or one of its Subsidiaries, on the other hand, involving payment of annual base compensation in excess of $75,000 or containing severance or change-in-control provisions;
(xii) each Contract which provides for indemnification of any officer, director, employee or agent of the Company or its Subsidiaries;
(xiii) each Contract relating to the voting and any other rights or obligations of a stockholder of the Company;
(xiv) each Contract entered into after January 1, 2010, relating to the merger, consolidation, reorganization, acquisition of all or substantially all of a Person’s assets or any similar transaction with respect to the Company, or any Contract relating to the creation of Liens on any Acquired Assets liquidation or the guarantee dissolution of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired AssetsCompany;
(Gxv) any each Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute after January 1, 2010, relating to the Acquired Assets acquisition, sale, spin-off or the Product Operations, including the conduct outsourcing of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound business unit or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any operation of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites Company or clinical trial investigatorsits Subsidiaries; (iixvi) powers of attorneythat certain Settlement Agreement between MTS Medication Technologies Limited, letters of delegation, declarations MTS Medication Technologies GmbH and similar instruments executed by Seller in connection with the regulatory ▇▇. ▇▇▇▇▇ ▇. Haase and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions▇▇▇▇▇▇ ▇▇▇▇▇; and
(Oxvii) all commitments to enter into any other of the foregoing.
(b) The Company has made available to Purchaser accurate and complete copies of all Material Contracts. Each Material Contract that is material a valid and binding agreement of the Company or the applicable Subsidiary of the Company, is enforceable against the Company or the applicable Subsidiary and to the DevelopmentKnowledge of the Company, manufacture or sale of any Compound or Productagainst each counterparty to such Material Contract, in each case, as currently conducted accordance with its terms against the other contracting party (except to the extent that enforceability may be limited by Seller, other than any Contract relating to (i) real propertyapplicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally, (ii) employeesgeneral principles of equity (including the possible unavailability of specific performance or injunctive relief), or employee compensation or benefit mattersconcepts of materiality, including any Employee Benefit Planreasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought, and (iii) indebtednessthe invalidity, other than indebtedness associated with under certain circumstances under Law or court decisions, of covenants not to compete and similar provisions), and is in full force and effect, and neither the Company nor any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All Subsidiary of the Material Contracts are valid and binding agreements of SellerCompany, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Sellerthe Company any other party thereto, otherwise provided notice is in material default under the terms of any such Material Contract.
(c) Except as set forth in Schedule 4.13(c) of the Company Disclosure Schedule: (i) neither the Company nor any of its intention Subsidiaries has violated or breached in any material respect, or committed any material default under, any Material Contract, which remains uncured, and, to repudiate the Company’s Knowledge, no other Person has violated or breached in any provision of a material respect, or committed any material default under, any Material Contract or Nondisclosure Agreement. Seller which remains uncured; (ii) neither the Company nor any of its Subsidiaries has not given to or received from any other Person any writtenwritten notice or, or to the Knowledge of Seller otherthe Company, notice any other communication, regarding any material actual or alleged violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
Contract; and (iii) As neither the Company nor any of the date hereof, (A) the Liabilities its Subsidiaries has waived any of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available its respective material rights under the IQVIA Agreement in an amount equal to $2,480,000any Material Contract.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (OMNICELL, Inc)
Material Contracts. (a) Except for those disclosed in Section 4.09(a) of the Seller Disclosure Schedule (other than any agreement entered into, modified or amended after the date hereof pursuant to and in accordance with Section 6.01(h)), neither Seller nor any of its Subsidiaries is a party to or bound by:
(i) Section 5.1(i)(iany lease or sublease of personal property providing for annual rentals of $25,000 or more;
(ii) any agreement (including option agreements) for the purchase of materials, supplies, goods, services, equipment or other assets or for the Disclosure Schedules sets forth a true and accurate list construction or development of buildings or other improvements or infrastructure, in each Contract case providing for either (other than purchase orders issued A) annual payments by Seller or its Subsidiaries of $25,000 or more or (B) aggregate payments by Seller or its Subsidiaries of $50,000 or more;
(iii) any sales, distribution or other similar agreement providing for the sale by Seller or its Subsidiaries of materials, supplies, goods, services, equipment or other assets that provides for either (A) annual payments to a Third Party that are ancillary Seller or its Subsidiaries of $25,000 or more or (B) aggregate payments to another written Contract Seller or its Subsidiaries of $50,000 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, except any such agreement with an aggregate outstanding principal amount not exceeding $25,000 and which may be prepaid at Closing without the same Third Party and that do not constitute an Assumed Liabilitypayment of any penalty;
(vii) in effect as of the date of this Agreement any option, license, franchise or similar agreement;
(viii) any agreement pursuant to which Seller is a party or which was entered into by any of its Subsidiaries obtains or on behalf of Sellergrants the right to use, or by which a covenant not to be sued under, any of the Acquired Assets is bound in the following categories Intellectual Property Right (the excluding licenses for commercial “Material Contracts”):off-the-shelf” computer software that are generally available on nondiscriminatory pricing terms) or Building Design;
(ix) any agency, dealer, sales representative, marketing or other similar agreement;
(x) any agreement that (A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities limits the freedom of Seller relating or its Subsidiaries (or which would so limit the freedom of Buyer or its Subsidiaries after the Closing Date) to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B1) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect line of the Product Operations business or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaarea or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Purchased Asset or (2) solicit, hire, retain or attempt to hire or retain any employee of any Person or (B) provides for “most favored nations” terms or establishes an exclusive sale or purchase obligation with respect to any product or any geographic location;
(Cxi) any Contract granting most favored nation agreement with or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in for the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee benefit of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any Affiliate of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation director or officer of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trialsAffiliates;
(Hxii) any Contract that limits Seller’s ability to make generally available any versions agreement providing for payment of any Compound or Product developed by or for Seller;Restricted Payments; or
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(Oxiii) any other Contract agreement, commitment, arrangement or plan not made in the ordinary course of business that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to Business.
(b) Each agreement (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject required to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered be disclosed pursuant to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) this Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.and/or
Appears in 1 contract
Material Contracts. (ia) Section 5.1(i)(i) of Except as otherwise set forth in the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller SEC Reports filed prior to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any Schedule 4.10(a) of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support servicesDisclosure Letter, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract except for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, as of the date hereof, none of the Acquired Companies is a party to or bound by any:
(iiii) indebtedness, other than indebtedness associated with contract or agreement for the purchase of materials or personal property from any Lien on supplier or for the furnishing of services to any Acquired Asset, Company that (ivA) general administration expenses, provides for future aggregate annual payments by the Acquired Companies of $2,000,000 or more or (vB) insurance.is with a Material Supplier;
(ii) All contract or agreement for the sale, license or lease (as lessor) by any Acquired Company of services, materials, products, supplies or other assets, owned or leased by the Acquired Companies, that (A) provides for future aggregate annual payments to the Acquired Companies of $2,000,000 or more or (B) is with a Material Customer;
(iii) contract, agreement or instrument relating to or evidencing Company Debt;
(iv) non-competition agreement or any other agreement or obligation which purports to limit in any material respect the manner in which, or the localities in which, the business of any Acquired Company may be conducted;
(v) employment agreement or similar contract that provides for annual compensation in excess of $200,000;
(vi) joint venture, partnership or similar contract;
(vii) contract, agreement or instrument on or following May 28, 2010 that relates to the disposition or acquisition of material assets or properties by any Acquired Company, or any merger or business combination with respect to any Acquired Company pursuant to which any Acquired Company has any continuing obligations;
(viii) except as otherwise disclosed on Schedule 4.10(a)(i), contract, agreement or instrument that provides for any minimum purchase obligations or requirements-based purchases in amounts in excess of $2,000,000; or
(ix) voting or other agreement governing how any shares of Common Stock shall be voted. Collectively, the “material contracts” (as defined in Item 601(b)(10) of Regulation S−K of the SEC) set forth in the SEC Reports (except for any Employee Benefit Plan), together with the contracts listed, or required to have been listed, on Schedule 4.10(a) of the Disclosure Letter, are referred to herein as the “Material Contracts are Contracts.”
(b) Each Material Contract is valid and binding agreements on the Company or one of Sellerits Subsidiaries and, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Company’s Knowledge, each other party to such Material Contracts entered into on behalf of SellerContracts, Seller and is in full force and effect, and the applicable Acquired Company has made available or delivered performed all obligations required to Purchaser a correct and complete copy of be performed by it to date under each written Material Contract, except where such noncompliance would not reasonably be expected to have a Material Adverse Effect. Seller is The Acquired Companies have not in material breach violated, defaulted under or material terminated, nor, has any Acquired Company given or received written notice of, any violation, default or termination under (nor, to the Company’s Knowledge, does there exist any condition which with the passage of any time or the giving of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of timeboth would result in such a violation, default or both, would constitute a material default by Seller under termination under) any Material Contract. To Contract and, to the Knowledge of SellerCompany’s Knowledge, there is no violation, default or termination by any other party to a Material Contract is in material breach Contract, except where such violations, defaults or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, terminations would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, not reasonably be expected to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of have a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure AgreementAdverse Effect.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (ia) Section 5.1(i)(i) 4.14 of the Company Disclosure Schedules sets forth Schedule contains a true complete and accurate correct list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement of each of the following Contracts to which Seller the Company or any of its Subsidiaries is a party or which was entered into by or on behalf of Seller, or by which the Company or any of its Subsidiaries is legally bound:
(i) each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development commitments by the Acquired Assets is bound in the following categories (the “Material Contracts”):
Company or any of its Subsidiaries, providing for either (A) any Contract establishing a joint venture annual payments of $100,000 or collaboration, co-promotion more or like arrangement, (B) aggregate payments of $500,000 or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, more remaining or Liabilities of Seller relating to paid during the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trialslast 36 months;
(ii) each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development commitments to 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 of $100,000 or more or (B) aggregate payments of $500,000 or more remaining or paid during the last 36 months;
(iii) each Contract that contains any Contract containing covenants prohibiting provisions restricting the Company or limiting the right to compete or engage any of its Affiliates from competing in any aspect line of the Product Operations business or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaarea or engaging in any activity or business (including with respect to the development, manufacture, marketing or distribution of their respective products or services), or pursuant to which any benefit or right is required to be given or lost as a result of so competing or engaging, or which would have any such effect after the Closing Date;
(iv) each Contract that (A) grants any material exclusive license or supply or distribution agreement or other material exclusive rights, (B) grants any material “most favored nation” status, rights of first refusal, rights of first negotiation or similar rights with respect to any product, service or Intellectual Property, or (C) contains any Contract granting most favored nation provision that requires the purchase of all or exclusive rights relating to a given portion of the Company’s or any Compound of its Subsidiaries’ requirements from a given third party, or Product to any other Personsimilar provision;
(Dv) any each Contract pursuant to which Seller the Company or any of its Subsidiaries has obtained agreed or is required to provide any third party with access to material source code, to provide for material source code to be put in escrow or to refrain from granting material license or franchise rights to any other person;
(vi) each material Contract pursuant to which the Company or any of its Subsidiaries has been granted any license to Intellectual Property Rights included Property, other than nonexclusive licenses granted in the Acquired Assets ordinary course of business of the Company and its Subsidiaries consistent with past practice;
(vii) each lease or that would have been included sublease (whether of real or personal property) to which the Company or any of its Subsidiaries is party as either lessor or lessee providing for either (A) annual payments of $100,000 or more or (B) aggregate payments of $500,000 or more;
(viii) each Contract relating to indebtedness for borrowed money or the deferred purchase price of property (in the Acquired Assets but for such Contracteither case, whether incurred, assumed, guaranteed or secured by any asset), including except any covenant such agreement with an aggregate outstanding principal amount not to enforce or assert, including exceeding $500,000 and which may be prepaid on not more than 30 days’ notice without the payment of any existing license agreement relating to any Compound or Product or the Product Operations and penalty;
(ix) each other Contract under which Seller is a licensor the Company or licensee 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 in the ordinary course of business consistent with past practices);
(x) each Contract under which the Company or any of its Subsidiaries has any material obligations that have not been satisfied or performed (other than the confidentiality obligations) relating to the acquisition or disposition of any Intellectual Property Rights relating to portion of the business of the Company (whether by merger, sale of stock, sale of assets or otherwise);
(xi) each Contract between the Company or any Compound of its Subsidiaries and any Governmental Authority;
(xii) each partnership, joint venture or Product other similar Contract or the Product Operations arrangement;
(xiii) each employee collective bargaining agreement or other Contract with any labor union and each employment Contract (other than any of for employment at-will or similar arrangements) that is not terminable by the following Company without notice and without cost to the Company;
(xiv) each material Contract entered into in the Ordinary Course last three years in connection with the settlement or other resolution of Business any Proceeding that has any continuing obligations, liabilities or restrictions; or
(xv) except for the Contracts disclosed above, each Contract required to be filed by the Company pursuant to Item 601(b)(10) of Regulation S-K under the 1933 Act, or that is otherwise material to Company and its Subsidiaries, taken as whole, and not entered into in the ordinary course of business consistent with past practice.
(b) Each Contract disclosed in Section 4.14(a) of the Company Disclosure Schedule, required to be disclosed pursuant to this Section or which would have been required to be so disclosed if it had existed on the date of this Agreement (each, a “Material Contract”) (unless it has terminated or expired (in each case according to its terms)) is in full force and effect and is a legal, valid and binding agreement of the Company or its Subsidiary, as the case may be, and, to the Knowledge of the Company, of each other party thereto, enforceable against the Company or such Subsidiary, as the case may be, and, to the Knowledge of the Company, against the other party or parties thereto, in each case, that are in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity. Neither the Company nor any of its Subsidiaries has received any notice to terminate, in whole or part, materially amend or not Acquired Business Contracts and are deemed Excluded Liabilities: renew any executory obligation (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites existing as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as of a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party counterparty to a Material Contract is that has not terminated or expired (in material breach each case according to its terms) prior to the date of this Agreement (nor, to the Knowledge of the Company, as of the date of this Agreement, has there been anything that a reasonable person would consider an indication that any such notice of termination will be served on or material default after the date of such this Agreement on the Company by any counterparty to a Material Contract and no event has occurred that with notice or lapse Contract). None of timethe Company, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing of its Subsidiaries or, to the Knowledge of Sellerthe Company, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person party thereto is in default or breach in any writtenmaterial respect under the terms of any Material Contract, or and, to the Knowledge of Seller otherthe Company, no event or circumstance has occurred that, with notice regarding or lapse of time or both, would constitute any material violation or breach of, or event of default under, any Material Contract or Nondisclosure Agreementthereunder.
(iiic) As Complete and correct copies of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced each Material Contract in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts existence as of the date hereofof this Agreement, as amended and supplemented, have been delivered or made available by the Company to Parent prior to the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Metasolv Inc)
Material Contracts. (ia) Except as set forth in Section 5.1(i)(i3.10(a) of the Company Disclosure Schedules sets Letter, neither the Company nor any Subsidiary is party to any written or oral binding undertaking, commitment, note, bond, mortgage, indenture, contract, lease, license, agreement or instrument (“Contract“) that is required to be described in or filed as an exhibit to any Company SEC Document that is not so described in or filed as required by the Securities Act or Exchange Act, as the case may be. Except as set forth a true and accurate list in Section 3.10(a) of each Contract the Company Disclosure Letter (other than purchase orders issued and, solely with respect to Section 3.10(a)(i), except to the extent previously included as exhibits to reports previously filed by Seller to a Third Party that are ancillary to another written Contract the Company with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such ContractSEC), including neither the Company nor any covenant not Subsidiary is party to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into (each, together with the Contracts identified in Section 3.10(b) of the Ordinary Course of Business andCompany Disclosure Letter, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: a “Company Material Contract“):
(i) Nondisclosure Agreements; any Contract that is a “material contract” (iias such term is defined in Item 601(b)(10) services agreements containing nonof Regulation S-exclusive licenses to Intellectual Property Rights included in K promulgated by the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employeesSEC);
(Eii) any Contract under which Seller pays it has outstanding indebtedness for money borrowed or receives milestone or royalty payments relating to guaranteed indebtedness for money borrowed of any Compound or Product or any Product IPPerson;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(Hiii) any Contract that limits Seller’s ability to make generally available (A) restricts it from participating or competing in any versions line of business, market or geographic area, or any Compound therapeutic area, class of drugs, any particular drug or Product developed by or for Seller;
any mechanism of action, (IB) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for restricts the development, manufacture, supplymarketing or distribution of any product; or (C) grants any exclusive rights of development, packagingmanufacture, labelingmarketing, sale, distribution, analytical testingimportation, exportation or storage other exclusive rights, rights of refusal, rights of first negotiation or similar rights of any nature to any Person;
(iv) any Contract that would reasonably be expected to prevent, materially delay or materially impede the consummation of any of the active pharmaceutical ingredients transactions contemplated by this Agreement; or
(v) any Contract the termination of which would reasonably be expected to have a Material Adverse Effect on the Company. A complete and other raw correct copy of each agreement or document required by this Section 3.10(a) to be listed in Section 3.10(a) of the Company Disclosure Letter (including any amendments thereto) has been made available by the Company to Buyer and Sub or filed by the Company as an exhibit to its Company SEC Documents. All Company Material Contracts are in written form.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list of all material Contracts to which the Company or any of its Subsidiaries is a party as of the date hereof or by which they are bound relating to the research, development, distribution, training, sale, license, marketing and supply of materials for any Compound or components for, and manufacturing by third parties of, each Drug Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage Company has made available to Buyer true and complete copies of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each caseall such Contracts, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancein effect.
(iic) All of the Company Material Contracts are valid and binding agreements of Seller, and are in full force and effect and enforceable against the Company or such Subsidiary in accordance with their respective terms, subject except as to the Enforceability Exceptioneffect, if any, of (i) applicable bankruptcy or other similar laws affecting the rights of creditors generally, (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies and (iii) to the extent applicable, the enforceability of provisions regarding indemnification in connection with the sale or issuance of securities. Other than Material Contracts entered into on behalf Neither the Company nor any of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller its Subsidiaries is not in material violation or breach of or material default under, or has received notice of any material violation or breach of the Material Contracts or Nondisclosure Agreementsdefault under, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any such Company Material Contract. To the Knowledge of Sellerthe Company, no other party to a Company Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, of or default under, under any such Company Material Contract or Nondisclosure AgreementContract.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Material Contracts. (i) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement to which Seller is a party or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iiia) As of the date hereof, neither the Company nor any Subsidiary is a party to or bound by:
(i) any lease (whether of real or personal property) providing for annual rentals of $500,000 or more;
(ii) any agreement for the purchase of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments by the Liabilities Company and the Subsidiaries of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and 500,000 or more or (B) Seller has a credit available under aggregate payments by the IQVIA Agreement in an amount equal Company and the Subsidiaries of $1,000,000 or more;
(iii) any sales, distribution or other similar agreement providing for the sale by the Company or any Subsidiary of materials, supplies, goods, services, equipment or other assets that provides for either (A) annual payments to the Company and the Subsidiaries of $2,480,000.2,000,000 or more or (B) aggregate payments to the Company and the Subsidiaries of $5,000,000 or more;
(iv) Section 5.1(i)(ivany partnership, joint venture or other similar agreement or arrangement;
(v) any agreement relating to the disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) owned by the Company or any of its Subsidiaries;
(vi) any agreement relating to the acquisition of any business (whether by merger, sale of stock, sale of assets or otherwise) (A) entered into since January 1, 2010 or (B) that contains any outstanding non-competition, earn-out or other contingent payment obligations or any other outstanding obligation of the Company or any of its Subsidiaries;
(vii) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $500,000 and which may be prepaid on not more than 30 days’ notice without the payment of any penalty;
(viii) any agreement pursuant to which the Company or any of its Subsidiaries is granted rights (including any covenant not to assert) with respect to any material Intellectual Property (other than licenses of unmodified commercially available off-the-shelf software);
(ix) any agreement pursuant to which the Company or any of its Subsidiaries grants rights (including any covenant not to assert) with respect to any material Intellectual Property owned by or licensed to the Company or any of its Subsidiaries (including any agreement that would encumber or purport to encumber any Intellectual Property owned by or exclusively licensed to any Affiliate of the Company (other than any of its Subsidiaries) which is not a direct party to such agreement), other than non-exclusive grants of such rights in the ordinary course of business by the Company or any of its Subsidiaries in connection with and limited to use of any of the Company’s or its Subsidiaries’ supplied products or services;
(x) any option, franchise or similar agreement;
(xi) any agency, dealer, sales representative, marketing or other similar agreement;
(xii) any agreement that limits the freedom of the Company or any Subsidiary (or that purports, after the Closing to limit the freedom of Parent, the Company or any of their respective affiliates) to compete in any line of business or with any Person or in any area;
(xiii) any agreement with (A) any of the Company’s Affiliates, (B) 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 Affiliates, (C) any Person 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 Affiliates or (D) any director or officer of the Company or any of its Affiliates or any “associates” or members of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the 1▇▇▇ ▇▇▇) of any such director or officer; or
(xiv) any other agreement, commitment, arrangement or plan not made in the Disclosure Schedules sets forth an accurate ordinary course of business that is material to the Company and the Subsidiaries, taken as a whole.
(b) Each agreement, contract, plan, lease, arrangement or commitment disclosed in any Schedule to this Agreement or required to be disclosed pursuant to this Section or any other Section of this Article 4 (each, a “Material Contract”) is a valid and binding agreement of the Company or any Subsidiary, as the case may be (subject, in the case of enforceability, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and to general principles of equity), and is in full force and effect, and none of the Company, any Subsidiary or, to the knowledge of the Company, any other party thereto is in default or breach in any material respect under the terms of any such agreement, contract, plan, lease, arrangement or commitment, and, to the knowledge of the Company, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default thereunder. True and complete list copies of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereofeach such agreement, contract, plan, lease, arrangement or commitment have been delivered to Parent.
Appears in 1 contract
Material Contracts. (iSchedule 6(r) Section 5.1(i)(i) of the Disclosure Schedules sets forth a true complete and accurate list of each all:
(i) any lease related to the Business (whether of real or personal property) providing for annual rentals of $50,000 or more;
(ii) any Contract (related to the Business pursuant to which any Intellectual Property Right or Technology, including any Third Party IP, is licensed, sold, assigned or otherwise conveyed or provided to any Seller or pursuant to which any Person has agreed not to enforce any Intellectual Property Right against the Seller, other than purchase orders issued by Seller Contracts for Generally Available Software;
(iii) any Contract related to the Business pursuant to which any Intellectual Property Right or Technology is or has been licensed (whether or not such license is currently exercisable), sold, assigned or otherwise conveyed or provided to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as of the date of this Agreement third party by Seller, or pursuant to which Seller is a party has agreed not to enforce any Intellectual Property Right against any third party.
(iv) any Contract related to the Business imposing any restriction on Seller’s right or which was entered into by ability, or, after the Closing, the right or on behalf ability of Seller, or by which any of the Acquired Assets is bound in the following categories (the “Material Contracts”):
Buyer (A) any Contract establishing a joint venture or collaboration, co-promotion or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect line of the Product Operations business or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaarea or which would so limit the freedom of Buyer after the Closing Date (including granting exclusive rights or rights of first refusal to license, market, sell or deliver any of the products or services offered by any Seller or any related Intellectual Property Right), (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) to develop or distribute any Intellectual Property Right or Technology;
(Cv) any Contract granting related to the Business for the purchase of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments by Seller of $50,000 or more or (B) aggregate payments by Seller of $100,000 or more since June 1, 2021;
(vi) any Contract related to the Business providing for “most favored nation customer” terms or exclusive rights similar terms, including such terms for pricing;
(vii) any sales, distribution or other similar agreement providing for the sale of products of the Business that provides for (A) annual payments to Seller of $50,000 or more or (B) aggregate payments to the Acquired Companies of $100,000 or more since June 1, 2021;
(viii) any partnership, joint venture or any sharing of revenues, profits, losses, costs or liabilities related to the Business or any other similar Contract;
(ix) any Contract of the Business relating to Indebtedness or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any Compound asset);
(x) any Contract related to the Business under which (A) any Person has directly or Product to indirectly guaranteed any liabilities or obligations of Seller or (B) Seller has directly or indirectly guaranteed liabilities or obligations of any other Person;
(Dxi) any Contract related to the Business relating to the creation of any Lien (other than Permitted Liens) with respect to any asset of any Seller;
(xii) any Contract related to the Business which contains any provisions requiring any Seller to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products or services in the ordinary course of business consistent with past practice);
(xiii) any Contract related to the Business with any related Person;
(xiv) any Contract related to the Business with a Governmental Authority generating revenues in excess of $50,000 per annum or that has been executed within the four months prior to the date of this Agreement;
(xv) any employment, severance, retention, change-in-control, bonus or other Contract related to the Business with any current or former member, employee, officer, director, advisor or consultant of Seller (A) pursuant to which Seller has obtained any current or granted future rights or obligations, (B) that provides for the payment of any Intellectual Property Rights included cash or other compensation or benefits upon the consummation of the Transaction, or (C) that otherwise restricts Seller’s ability to terminate the employment or engagement of such individual without penalty or liability (excluding any penalty or liability in respect of the Acquired Assets (or that would have been included in the Acquired Assets but for such Contractemployee’s notice period and right not to be unfairly dismissed), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andthan, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course ordinary course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements business consistent with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract past practice with any Governmental Authority relating to any Compound advisor, consultant or Product or any employee of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutionsSeller; and
(Oxvi) any other Contract related to the Business not made in the ordinary course of business that is material to Seller. All the Developmentforegoing, manufacture including all material amendments or sale of any Compound modifications thereto, are referred to as “Material Contracts.” No breach or Productdefault, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employeesalleged breach or default, or employee compensation or benefit matters, including any Employee Benefit Plan, event which would (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse passage of time, notice or both, would ) constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing by the Seller or, to the Knowledge of the Seller, otherwise provided notice any other party or obligor with respect thereto, has occurred or, as a result of its intention to repudiate any provision this Agreement, the performance hereof or consummation of the transactions contemplated hereby or otherwise, will occur, except for such breaches or defaults that would not have a Material Contract Adverse Effect. Except as noted in Schedule 6(r), the consummation of the transactions contemplated by this Agreement will not (and will not give any Person a right to) terminate or Nondisclosure Agreement. Seller has not given to or received from modify any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach rights of, or default underaccelerate or augment any obligation of, the Seller under any Material Contract or Nondisclosure Agreementresult in the creation of any Liens or claims thereunder on any Purchased Asset. Each Material Contract is valid, binding and in full force and effect in accordance with its terms.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Esports Entertainment Group, Inc.)
Material Contracts. (ia) Section 5.1(i)(i) 5.14 of the CC Disclosure Schedules sets forth Letter contains a true and accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect complete list, as of the date hereof, of this Agreement all Contracts (other than Contributed Benefit Plans and any Ancillary Documents, and other than any Contracts that are CC Retained Assets) to which Seller any of the CC Parties (in respect of the CC Contributed Business) is a party or which was entered into by or on behalf of Seller, or by which any CC Party (in respect of the Acquired Assets CC Contributed Business) is bound in (other than Contracts that exclusively relate to CC Retained Assets and CC Retained Liabilities), and that fall within any of the following categories (the “Material Contracts”):
(Ai) any CC Assigned Contracts set forth under Section 1 of Section 1.1(b) of CC Disclosure Letter;
(ii) any Advisory Contract;
(iii) any Contract establishing a joint venture for the placement, distribution or collaborationsale of shares, co-promotion units or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller relating to the Acquired Assets or the Development, manufacture, or Commercialization other ownership interests of any Compound Subject Fund or Productfuture fund, investment vehicle or investment product, including the conduct of any clinical trials;
(B) any Contract containing covenants prohibiting or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations solicitation agreements and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business andinvestor referral agreements, in each case, that are not Acquired Business Contracts pursuant to which a CC Party may incur fees due and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; owing;
(iv) licenses any Contract requiring any CC Party (A) to commercially available software co-invest with any other Person; (B) to provide seed capital or cloud similar investment or software as a service agreements; and (C) to invest in any fund, investment vehicle or investment product (including any contract requiring any additional or “follow-on” capital contributions or that contains any provisions regarding priority with respect to the allocation of investment opportunities);
(v) assignment agreements any Contract that contains (A) a “clawback” or similar undertaking requiring the contribution, reimbursement or refund by any CC Party of any prior distribution, return of capital or fees (whether performance based or otherwise) paid to any such Person or (B) a “most favored nation” or similar provision with employees, including proprietary information and invention assignment agreements with employeesany Client;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(Fvi) any Contract relating to Investment Management Services by which a CC Party has agreed to modify, share or reimburse the creation of Liens on fees receivable from, or assume or share any Acquired Assets expenses of, any Subject Fund or Advisory Client under the guarantee of the payment of Liabilities applicable Fund Agreement or performance of obligations of any other Person by Seller relating to any Compound or Product Advisory Contract (or any Acquired Assetsside letter relating thereto);
(Gvii) any Contract entered into by Seller that contains (A) “key person” provisions pertaining to employees of any CC Party or (B) any of its Affiliates in settlement of any Legal Proceeding the following rights provided to a Client: (1) special withdrawal or other dispute relating to the Acquired Assets redemption rights, (2) designation rights regarding advisory boards or the Product Operationssimilar provisions, (3) anti-dilution rights or (4) special notice or reporting requirements, including any “side letters” or similar arrangements in connection with investments made by the conduct of any clinical trialsFunds;
(Hviii) the asset management agreements related to the sub-advisory asset management agreements that are included in the CC Assigned Contracts;
(ix) any Contract that limits Seller’s ability to make generally available in any versions material respect the freedom of any Compound CC Party to compete in any line of business, provide any service, or Product developed by sell any product or for Sellersecurities in any geographic area;
(Ix) any Contract for the research joint venture or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors)partnership agreement;
(Jxi) any business combination or acquisition Contract for the developmentthat could reasonably be expected to result in future payments by any CC Party in excess of $1,000,000, manufacture, supply, packaging, labeling, distribution, analytical testing, including through “earn-out” or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreementscontingent payment obligations;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(Nxii) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, (other than clinical trial agreements and related ancillary agreements in its capacity as a Client);
(xiii) other than solely in connection with public institutionsthe CC Retained Business, any Contract with any director or officer or other Affiliate of any CC Party that would be required to be disclosed by CFI in accordance with Item 404(a) of SEC Regulation S-K following the Closing (based on the amount involved under such Contract for the fiscal year 2014); and
(Oxiv) any other Contract that is material to the Developmentbusiness, manufacture or sale results of any Compound or Productoperations of financial condition of the CC Contributed Business, in each casetaken as a whole. For the avoidance of doubt, as currently conducted by Seller, other than any Contract relating to the term “Material Contracts” shall not include (i) real property, any Fund Agreement or (ii) employeesany “side letter” or any other written agreements between or among a general partner, a Fund Client or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurancea Subject Fund relating to such Subject Fund.
(iib) All of Each such Material Contract is valid, binding and enforceable against the Material Contracts are valid and binding agreements of SellerCC Party that is a party thereto and, enforceable to CC’s Knowledge, the other parties thereto in accordance with their its terms, subject and is in full force and effect, except where such failure to be so valid, binding, enforceable or in full force and effect would not have or reasonably be expected to have, individually or in the Enforceability Exceptionaggregate, a CC Material Adverse Effect. Other None of the CC Parties is in default under or in breach of any such Material Contract (other than Material Contracts entered into on behalf of Seller, Seller has made available agreements between or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of among any of the Material Contracts CC Parties) or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Seller, otherwise provided received notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach ofdefault except for such defaults, violations or default underbreaches as would not have or reasonably be expected to have, any individually or in the aggregate, a CC Material Contract or Nondisclosure AgreementAdverse Effect.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the IQVIA Agreement are $3,800,000, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract
Sources: Contribution and Implementation Agreement (Colony Financial, Inc.)
Material Contracts. (a) For purposes of this Agreement, a “Material Contract” means each of the following Contracts which is currently in effect and to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound:
(i) Section 5.1(i)(iany “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Disclosure Schedules sets forth SEC, other than those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to the Company and its Subsidiaries;
(ii) any Collective Bargaining Agreement or other similar Contract with a true and accurate list Labor Organization;
(iii) any Contract (excluding, for the avoidance of doubt, any purchase order) with any Significant Customer (based solely on the fiscal year ended February 29, 2012) or any Significant Supplier (based solely on the fiscal year ended February 29, 2012) providing for indemnification or any guaranty (in each case, under which the Company has continuing obligations as of the date hereof), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) any Contract providing for indemnification entered into in connection with the distribution, sale or license of services or hardware or software products in the ordinary course of business consistent with past practice, which indemnification does not materially differ from the provisions embedded in Company’s standard terms of sale as provided or made available to Parent;
(iv) any Contract containing any covenant, commitment or other obligation (A) limiting the right of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person in any line of business, (B) granting any exclusive rights to any third party, (C) containing a “most favored nation” or similar provision, (D) including any “take or pay” or “requirements” obligation (excluding, for the avoidance of doubt, any purchase order), (E) prohibiting the Company or any of its Subsidiaries (or, after the Effective Time, Parent) from engaging in business with any Person or levying a fine, charge or other payment for doing so (other than any prohibition pertaining to the non-solicitation of employees) or (F) otherwise prohibiting or limiting the right of the Company or its Subsidiaries to sell, distribute or manufacture any products or services or to purchase orders issued or otherwise obtain any software, components, parts or subassemblies, in each case other than any such Contracts that may be cancelled without liability to the Company or its Subsidiaries of more than $300,000 and upon notice of ninety (90) days or less;
(v) any Contract (A) relating to the license, disposition or acquisition by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as Company or any of its Subsidiaries after the date of this Agreement of a material amount of assets other than in the ordinary course of business, (B) pursuant to which Seller is a party the Company or which was entered into by or on behalf of Seller, or by which any of its Subsidiaries will acquire any material ownership interest in any other Person or other business enterprise other than the Acquired Assets is bound in Company’s Subsidiaries or (C) relating to the following categories formation, control or operation of any joint venture;
(vi) any Contract for the “Material Contracts”):
acquisition or disposition of any business containing any continuing (A) profit sharing arrangements or “earn-out” arrangements or (B) indemnification or similar contingent payment obligations;
(vii) any joint marketing or development agreements under which the Company or any of its Subsidiaries have continuing obligations or costs in excess of $300,000 per year, to jointly market any product, technology or service, and which may not be canceled without penalty upon notice of ninety (90) days or less;
(viii) any material outsourcing Contracts (including material Contracts to assemble, manufacture and package any Company Product);
(ix) Based upon amounts paid or received thereunder during the most recent completed fiscal year of the Company, (A) the top twenty (20) end-user or customer contracts (including OEM contracts), (B) the top five (5) distributor contracts, (C) to top ten (10) supplier contracts, (D) the top three (3) development contracts, and (E) the top five (5) sales representative contracts;
(x) the top ten (10) Contracts (based upon amounts paid thereunder during the most recent completed fiscal year of the Company) containing any service obligation on the part of the Company or any of its Subsidiaries (as measured by continuing costs to be incurred by the Company or any of its Subsidiaries in connection with those services);
(xi) any Contract establishing a joint venture that is listed in Section 3.22(e) of the Company Disclosure Letter;
(xii) any mortgages, indentures, guarantees, loans or collaborationcredit agreements, co-promotion security agreements or like arrangement, or involving a sharing with another Person of profits, losses, costs, royalties, milestone payments, or Liabilities of Seller other Contracts relating to the Acquired Assets or the Development, manufactureborrowing of money by, or Commercialization extension of credit to, the Company or any Compound of its Subsidiaries, other than (A) accounts receivables and payables in the ordinary course of business consistent with past practice and (B) loans to direct or Product, including the conduct of any clinical trialsindirect wholly-owned Subsidiaries;
(Bxiii) any mortgage, lease, loan or other material Contract containing covenants prohibiting relating to any sale leaseback transaction of any real property previously owned by the Company or limiting the right to compete or engage in any aspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical areaits Subsidiaries;
(C) any Contract granting most favored nation or exclusive rights relating to any Compound or Product to any other Person;
(D) any Contract pursuant to which Seller has obtained or granted any Intellectual Property Rights included in the Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of the following entered into in the Ordinary Course of Business and, in each case, that are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to Intellectual Property Rights included in the Acquired Assets for the sole purpose of a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and clinical sites for the conduct of a clinical study, which study is complete or substantially complete at the relevant clinical sites as of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(Gxiv) any Contract entered into by Seller or any of its Affiliates in settlement of any since January 1, 2009 to settle a Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not Acquired Business Contracts and are deemed Excluded Liabilities: (iA) standalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the U.S. (other than local representative agreements and legal representative agreements or similar arrangements for local representation releases entered into with a contract research organization former employees or similar service provider)independent contractors of the Company which do not contain cash settlements in excess of $500,000 or (B) settlement agreements for cash only (which has been paid) and does not exceed $500,000 as to such settlement; (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);and
(Jxv) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any material Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and
(O) any other Contract that is material to the Development, manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other than any Contract relating to (i) real property, (ii) employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insuranceEntity.
(iib) All Section 3.11(b) of the Company Disclosure Letter contains a list that is complete and accurate in all material respects as of the date hereof of all Material Contracts are Contracts, and identifies each subsection of Section 3.11(a) that describes such Material Contract. The Company has delivered or made available to Parent complete and correct copies of each such Material Contract.
(c) Each Material Contract is valid and binding agreements on the Company (and/or each such Subsidiary of Sellerthe Company, enforceable as the case may be) and is in accordance with their termsfull force and effect, subject and neither the Company nor any of its Subsidiaries party thereto, nor, to the Enforceability Exception. Other than Material Contracts entered into on behalf Knowledge of Sellerthe Company, Seller has made available any other party thereto, is in breach of, or delivered to Purchaser a correct and complete copy of each written default under any such Material Contract. Seller is not in material breach or material default of any of the Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, time or both, both would constitute such a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default thereunder by the Company or any of such Material Contract and no event has occurred that with notice or lapse of timeits Subsidiaries, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Knowledge of Sellerthe Company, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other Person any writtenparty thereto, except in each of the foregoing cases as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Knowledge of Seller otherCompany and its Subsidiaries, notice regarding any material violation or breach of, or default under, any Material Contract or Nondisclosure Agreement.
(iii) taken as a whole. As of the date hereof, (A) neither the Liabilities Company nor any of Seller relating its Subsidiaries has received any written notice or other written communication regarding any actual or possible violation or breach of or default under, or intention to cancel or modify, any Material Contract, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the IQVIA Agreement are $3,800,000Company and its Subsidiaries, which amount is net of all deposits (including the deposit referenced in clause (B)), advances and prepayments, and (B) Seller has taken as a credit available under the IQVIA Agreement in an amount equal to $2,480,000whole.
(iv) Section 5.1(i)(iv) of the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under the Acquired Business Contracts as of the date hereof.
Appears in 1 contract