Material Contracts. Schedule 2.9 of the Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller: (a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise; (b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period; (c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule; (d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium; (e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person; (f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts; (g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof; (h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller; (i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions; (j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis; (k) employment, severance, consulting, deferred compensation and similar agreements; (l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller; (m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement; (n) strategic alliance, co-marketing, joint development or similar agreements; (o) all collective bargaining agreements or Contracts with any union; (p) powers of attorney; (q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business; (r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity; (s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and (t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BOSTON OMAHA Corp), Asset Purchase Agreement (BOSTON OMAHA Corp)
Material Contracts. Schedule 2.9 (a) Section 5.19 of the Company Disclosure Schedule sets forth Letter lists the following Contracts to which the Company or any of its Subsidiaries is a complete party or is otherwise bound by (each such Contract, a “Company Material Contract”):
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the 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 accurate listits Subsidiaries, taken as a 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 whether written except for any such Contract that may be cancelled without penalty by the Company or unwritten, any of all its Subsidiaries upon notice of the following Contracts, agreements and arrangements 60 days or less;
(iii) any Contract with respect to the Seller:
(a) Contracts with respect to which Seller has any liability a joint venture, partnership or obligation involving more than $15,000.00, contingent or otherwisesimilar arrangement;
(biv) any Contract (other than vendor Contracts with respect for the purchase of merchandise for resale) pursuant to which Seller expects to receive payments, the Company or incur costs any of its Subsidiaries made or services, received payments of more than $15,000.00 in any twelve25 million during the 12-month periodperiod prior to the date hereof, with material payment obligations remaining to be performed by the Company after the date of this Agreement;
(cv) Contracts any Contract (A) that may extend for is a term of more than one year after the Closing other than any vendor agreement “requirements” Contract entered into with a vendor for the Ordinary Course purchase of Business that are not otherwise required to be disclosed on Schedule 2.9 merchandise for resale or (B) under which the consummation of the Disclosure ScheduleTransactions would give rise to a third party having a right of termination, amendment, acceleration or cancellation thereunder;
(dvi) all agreements with Suppliers with respect any loan, credit, security or pledge agreement, debenture or similar Contract pursuant to which Seller has any liability indebtedness of the Company or obligation involving more any of its Subsidiaries for borrowed money (other than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premiumordinary course trade payables);
(evii) Contracts under which the amount payable by Seller is dependent on the revenue, income any Contract relating to guarantees or other similar measure assumptions of Seller or obligations of any other third Person;
(fviii) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating any Contract pursuant to which the Company or any Indebtedness of its Subsidiaries disposed of or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holderacquired, or Affiliate agreed to dispose of Seller;
(i) Contracts or other arrangements which place acquire, a material business or, any limitation on amount of material assets by the method Company or any of conducting its Subsidiaries, with material obligations remaining to be performed or scope material liabilities continuing after the date of the Business this Agreement, including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal“earn out” or other contingent payment obligations, or “most favored nation” provisionsany indemnification obligations;
(jix) Contracts any material hedge, collar, option, forward purchasing, swap, derivative or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basissimilar Contract;
(kx) employmentany Contract with any director, severanceofficer, consultingemployee, deferred compensation and similar agreementsconsultant or Affiliate of the Company or any of its Subsidiaries (other than any Company Benefit Plan);
(lxi) Contracts with respect to mergers or acquisitions, sales of securities or any material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals Contract with any Governmental Entity;
(sxii) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduitsContract under which the Company is a lessee of, or rights-of-way governing Seller’s attachment holds or installation 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 fiber optic lines, coaxial cables, $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 Seller owned than Contracts granting rights to use commercial-off-the-shelf Software), (B) is restricted in its right to use or controlled facilities register any material Company Owned Intellectual Property Rights or equipment (C) permits any other Person to such entity’s poles use, enforce or conduits (“Pole Attachment Agreements”)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
(txv) other agreements any amendment, supplement or Contracts which are material 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 BusinessKnowledge of the Company, is valid and binding on the Acquired Assetsother 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 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 SellerKnowledge 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 which granted to any third party any rights, adverse or otherwise, that would constitute a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “material breach of any Company Material Contracts”Contract. The Seller Company has furnished or otherwise made available to the Purchaser true, complete, Parent true and correct copies of all Company Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and Contracts in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge as of the Seller, any other party thereto, or could cause the acceleration date of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contractthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Pep Boys Manny Moe & Jack), Merger Agreement (Icahn Enterprises Holdings L.P.)
Material Contracts. Schedule 2.9 (a) All Contracts, including amendments thereto, required to be filed as an exhibit to any report of Parent filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K under the Exchange Act have been so filed as of the date hereof, and no such Contract has been amended or modified (or further amended or modified, as applicable) since the date such Contract or amendment was filed.
(b) Other than the Contracts described in clause (a) above which were filed in an unredacted form, Section 4.11(b) of the Parent Disclosure Schedule sets forth a complete and accurate listlist of Contracts to which Parent or any of its Subsidiaries is a party that fall within the following categories and existing as of the date hereof (collectively, the “Parent Material Contracts”):
(i) any Contract for the purchase or sale of services, equipment or other assets (other than relating to Oil and Gas Properties) that either (1) provides for annual payments by Parent and/or its Subsidiaries of $500,000 or more; or (2) gives rise to anticipated receipts of more than $500,000 in any calendar year, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving that cannot be terminated on not more than $15,000.00, contingent or otherwise90 days’ notice without payment by the Parent and/or its Subsidiaries of any material penalty;
(bii) Contracts with respect any material partnership, joint venture or other similar agreement or arrangement;
(iii) any Contract relating to the acquisition or disposition of any material business (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which Seller expects Parent has material ongoing obligations entered into within the three years prior to receive paymentsthe date hereof;
(iv) any Contract as obligor or guarantor relating to Indebtedness (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;
(v) any Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or incur costs non-compete or similar type of provision that materially restricts the ability of Parent or any of Parent’s Subsidiaries (including the Company and the Company’s Subsidiaries following the Closing) to (A) compete in any line of business or geographic area or with any Person during any period of time after the Closing or (B) make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of more than $15,000.00 in their rights with respect to, any twelve-month periodof their material assets or properties;
(cvi) Contracts any Contract to sell, lease, farmout, exchange or otherwise dispose of all or any part of the Oil and Gas Properties of Parent and its Subsidiaries;
(vii) each Contract for the sale, purchase, exchange or other disposition of Hydrocarbons produced from the Oil and Gas Leases or ▇▇▇▇▇ of Parent and its Subsidiaries;
(viii) each Contract that may extend contains any drilling commitments;
(ix) each Contract for any material Derivative Transaction of Parent or any of its Subsidiaries;
(x) any joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or similar Contract (or series of related Contracts) requiring Parent or any Subsidiary to make expenditures that would reasonably be expected to be in excess of (A) $1,500,000 in any calendar year or (B) $3,000,000 during the term thereof, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(xi) any Contract that provides for a “take-or-pay” clause or any similar prepayment obligation, acreage dedication, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead, that cover, guaranty or commit volumes in excess of 5,000 barrels of oil equivalent of Hydrocarbons of Parent and its Subsidiaries per day over a period of one month (calculated on a yearly average basis) and for a term of more greater than one year after the Closing other than 10 years, except for any vendor agreement entered into the Ordinary Course of Business Contracts that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Scheduleterminable without penalty within 90 days;
(dxii) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement each Contract that contains any exclusivitystandstill, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” most favored customer provision, preferential right or “not to exceed” basis;
(k) employmentrights of first or last offer, severance, consulting, deferred compensation and negotiation or refusal or any similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, requirement or right in favor of way use agreement;
any third party, in each case other than those contained in (nA) strategic allianceany agreement in which such provision is solely for the benefit of the Company or any of its Subsidiaries, co-marketing, (B) customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights in joint development or similar agreements;
(o) all collective bargaining operating agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans unit agreements affecting the business or other arrangements of Seller outside the Oil and Gas Properties of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, Company or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)of its Subsidiaries; and
(txiii) other agreements any Contract that constitutes a seismic, data or Contracts which are material to the Businessgeophysical license, the Acquired Assets, agreement or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing permit.
(whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. c) Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Parent Material Contract is valida valid and binding agreement of Parent or one of its Subsidiaries, binding and is in full force and effect effect, and enforceable none of Parent, any Subsidiary of Parent or, to Parent’s knowledge, any other party is in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any such Parent Material Contract, except for any such defaults or breaches which would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Material Contracts. Schedule 2.9 of the Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(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) any employment, severance, termination, consulting, or retirement Contract providing for aggregate payments to any Person in any calendar year in excess of $200,000, (ii) any Contract relating to the borrowing of money by SPAH or the guarantee by SPAH of any such obligation (other than trade payables and Contracts relating to borrowings or guarantees made in the ordinary course of SPAH’s business), (iii) any Contract which prohibits or restricts SPAH or any personnel of SPAH from engaging in any business activities in any geographic area, line of business or otherwise in competition with respect any other Person, (iv) any Contract involving Intellectual Property (other than Contracts entered into in the ordinary course with customers or “shrink-wrap” software licenses), (v) any Contract relating to which Seller the provision of data processing, network communication, or other technical services to or by SPAH, (vi) any Contract relating to the purchase or sale of any goods or services (other than Contracts entered into in the ordinary course of business and involving payments under any individual Contract 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 combination thereof not included on its balance sheet, (viii) any Contract relating to the purchase, sale or lease of real property by or from SPAH and (ix) any other Contract or amendment thereto that would be required to be filed as an exhibit to a SPAH Exchange Act Report filed by SPAH with the SEC prior to the date of this Agreement that has any liability not been filed as an exhibit to a SPAH Exchange Act Report (Contracts referred to in clauses (i) through (ix) of this Section 6.15(a), together the “SPAH Contracts”). A true, correct and complete copy of each SPAH Contract has been filed as an exhibit to an Exchange Act Document, furnished or obligation involving more than $15,000.00, contingent or otherwise;made available to FFC as of the date hereof.
(b) Contracts with With respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 each SPAH Contract and except as disclosed in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
6.15(b): (i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect 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 enforceable in accordance with its terms. There (v) no consent is no event required by a Contract for the execution, delivery, or condition which has occurred or exists which constitutes or which, with or without noticeperformance of this Agreement, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge consummation of the Seller, any Merger or the other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereoftransactions contemplated hereby. To the knowledge All of the Sellerindebtedness of SPAH for money borrowed is prepayable at any time by SPAH without penalty, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel premium or materially change the terms of any Material Contractcharge.
Appears in 2 contracts
Sources: Merger Agreement (Frontier Financial Corp /Wa/), Merger Agreement (SP Acquisition Holdings, Inc.)
Material Contracts. Schedule 2.9 (a) Seller has provided to Buyer each of the Disclosure Schedule sets forth following Contracts to which, as of the date of this Agreement, the Company or any of its Subsidiaries, if any, is a complete 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 benefit plans of the Company) 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 $50,000;
(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) all material contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment (other than agreements with employees, non-exclusive licenses granted to the Company’s or its Subsidiaries’ customers, and accurate listnon-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms);
(v) all partnership, joint venture or other similar agreements or arrangements;
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or a series of related agreements) with an aggregate outstanding principal amount not exceeding $100,000;
(vii) any agreement for the disposition or acquisition by the Company or any of its 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 material business or any material amount of assets other than in the ordinary course of business;
(viii) any 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 whether written case, for the 2023 fiscal year measured by the aggregate obligations paid or unwrittenagreed to pay to or by the Company, as applicable;
(ix) any agreement restricting or limiting the payment of all dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations as are required by applicable Law;
(x) any Contract for the following development of Intellectual Property, other than those entered into in the ordinary course of business with Company employees and contractors on the Company’s standard form for such Contracts, agreements and arrangements with respect ; and
(xi) to the Seller:
(a) Contracts extent not provided pursuant to another subsection of this Section 3.12(a), all material agreements with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;Governmental Authority.
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, A true and complete copy of more than $15,000.00 in each Company Material Contract (including any twelve-month period;
(camendments thereto) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not date of this Agreement has been made available to acquire the Acquired Assets Buyer prior to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies date of all Material Contractsthis Agreement. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Company Material Contract is valida valid and binding agreement of the Company or its applicable Subsidiary, except where the failure to be valid and binding and would not, individually or in full force and effect and enforceable in accordance with its termsthe aggregate, reasonably be expected to have a Company Material Adverse Effect. There is no event Neither the Company or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orSubsidiary nor, to the knowledge Knowledge of the SellerCompany, any other party thereto, is in breach of or could cause the acceleration of default under any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereofsuch Company Material Contract. To the knowledge As of the Sellerdate of this Agreement, none there are no material disputes in connection with any such Company Material Contract. As of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations date of any Material Contract and to the knowledge of the Sellerthis Agreement, no party to a under any Company Material Contract intends has given written notice of its intent to terminate, accelerate, cancel terminate or materially change the terms of any otherwise seek a material amendment to such Company Material Contract.
Appears in 2 contracts
Sources: Share Purchase Agreement (Connexa Sports Technologies Inc.), Share Exchange Agreement (Connexa Sports Technologies Inc.)
Material Contracts. (a) Schedule 2.9 of the Disclosure Schedule 5.9(a) sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements in each case, which both (i) relate exclusively to, or are necessary for Seller’s conduct of, the Business and arrangements (ii) to which Seller or any Affiliate is a party or by which Seller or any Affiliate or Seller’s or any Affiliate’s assets or properties are bound (collectively, the “Material Contracts”):
(i) each Contract with the Customers of the Business, including each alarm lease, maintenance agreement, repair agreement, service agreement and monitoring agreement with Customers of the Business (collectively, the “Customer Contracts”);
(ii) each Contract relating to any partnership, joint venture, strategic alliance or sharing of profits;
(iii) each Contract limiting the right of Seller to (1) engage in or compete with any Person in any business or in any geographical area or (2) solicit or hire any Person or customers with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwiseBusiness;
(biv) Contracts with respect each Intellectual Property License, except for licenses implied by the sale of goods, licenses to which Seller expects Software generally commercially available, off the shelf Software or Software licensed pursuant to receive payments, shrink-wrap or incur costs or services, of more than $15,000.00 in any twelve-month period“click to accept” agreements;
(cv) Contracts that may extend for each Contract relating to the incurrence, assumption or guarantee of any indebtedness or imposing a term of more than one year after the Closing other than Lien on any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure SchedulePurchased Assets;
(dvi) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premiumeach Real Property Lease;
(evii) Contracts under which the amount payable by Seller is dependent on the revenueeach Personal Property Lease;
(viii) each Contract pertaining to employment arrangements with any Employee, income including any Contract providing for severance, retention, change in control or other similar measure payments or benefits of Seller or any other PersonEmployees;
(fix) distributioneach Contract between Seller, marketingon the one hand, resellerand Seller’s Affiliates, partner, sales, agency, independent sales agency and referral contractson the other hand;
(gx) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereofeach Contract with a Governmental Body;
(hxi) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement each Contract that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or a “most favored nation” provisions;
(j) Contracts clause or other arrangements which require the Seller to deliver services on a “fixed fee” term providing preferential pricing or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)treatment; and
(txii) other agreements each Contract that is otherwise material to, or Contracts which are material to necessary for Seller’s conduct of, the Business, other than the Acquired Assets, or Excluded Contracts.
(b) Each of the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract Contracts is valid, binding and in full force and effect and is the legal, valid and binding obligation of Seller and, to the Knowledge of Seller, of the other parties thereto, enforceable against each of them in accordance with its termsterms subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). There Seller is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening not in material breach of any event and/or the passage of timeMaterial Contract, could constitute a default or breach under any such Material Contract by Seller ornor, to the knowledge Knowledge of the Seller, is any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed in material breach thereof. Seller that it will not fulfill its obligations thereunder in has delivered or made available to Purchaser true, correct and complete copies of all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the SellerMaterial Contracts, no party to a Material Contract intends to terminatetogether with all amendments, accelerate, cancel modifications or materially change the terms of any Material Contractsupplements thereto.
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 2.9 (a) Neither the Company nor any of its Subsidiaries is a party to any Contract required to have been filed with the SEC by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed.
(b) Section 2.7(b) of the Company Disclosure Schedule sets lists, as of the date of this Agreement, the following types of contracts and agreements to which the Company or any of its Subsidiaries is a party (such contracts and agreements as are required to be set forth a complete on Section 2.7(b) of the Company Disclosure Schedule being the “Material Contracts”):
(i) each contract and accurate listagreement (A) with consideration paid or payable to the Company or any of its Subsidiaries of more than $100,000, in the aggregate, and (B) with suppliers to the Company or any of its Subsidiaries for expenditures paid or payable by the Company or any of its Subsidiaries of more than $100,000, in the aggregate, in each case whether written or unwrittenover the twelve (12)-month period ending December 31, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise2022;
(bii) each Advisory Contract or other investment advisory, asset management or similar agreements entered into by the Company and its Subsidiaries, providing for revenues in excess of $100,000 per annum;
(iii) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising contracts and agreements to which the Company or any of its Subsidiaries is a party that are material to the business of the Company;
(iv) all Service Agreements and management contracts, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of its Subsidiaries or income or revenues related to any Product of the Company or any of its Subsidiaries to which the Company or any of its Subsidiaries is a party;
(v) all Contracts providing for the development of any software or Intellectual Property Rights, independently or jointly, either by or for the Company or any of its Subsidiaries (other than employee invention assignment agreements and consulting agreements with authors on the Company’s or any of its Subsidiaries’ standard form of agreement);
(vi) all Contracts evidencing Indebtedness with a principal amount, or involving obligations, in excess of $100,000;
(vii) all partnership, joint venture, property management, profit sharing, carry interest or similar Contracts;
(viii) all Contracts with respect any Governmental Authority to which Seller expects to receive paymentsthe Company or any of its Subsidiaries is a party, other than any Company Permits;
(ix) all Contracts that limit, or incur costs purport to limit, the ability of the Company or services, any of more than $15,000.00 its Subsidiaries to compete in any twelve-month line of business or with any person or entity or in any geographic area or during any period of time or to hire or retain any person;
(x) all Contracts that result in any person or entity holding a power of attorney from the Company or any of its Subsidiaries that relates to the Company and its Subsidiaries or their respective businesses;
(xi) all leases or master leases of personal property reasonably likely to result in annual payments of $50,000 or more in a twelve (12)-month period;
(cxii) Contracts that may extend for a term which involve the license or grant of more than one year after rights to Company Owned IP by the Closing other than Company or any vendor agreement entered into of its Subsidiaries, but excluding any nonexclusive licenses (or sublicenses) of Company Owned IP granted to the Ordinary Course Company’s clients in the ordinary course of Business business that are not otherwise required substantially in the same form as the Company’s or its Subsidiaries’ standard form Advisory Contracts as have been provided to be disclosed on Schedule 2.9 of the Disclosure Schedule;Purchaser; and
(dxiii) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that “material contract” (as such term is not terminable by Seller on thirty (30defined in Item 601(b)(10) days or less prior written notice without material liability, penalty or premium;
(eof Regulation S-K under the Securities Act) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distributioncontract that is material to the Company and its Subsidiaries, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;taken as a whole.
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valida legal, valid and binding and in full force and effect and obligation of the Company or any of its Subsidiaries party thereto and, to the Knowledge of the Company, is enforceable in accordance with its terms. There is terms against the other parties thereto, there are no event grounds for termination, rescission or condition which has occurred or exists which constitutes or which, with or without notice, the happening repudiation of any event and/or Material Contract, and neither the passage Company nor any of timeits Subsidiaries is in material breach or violation of, could constitute a or material default under, any Material Contract nor has any Material Contract been canceled by the other party; (ii) to the Knowledge of the Company, no other party is in material breach or breach violation of, or material default under, any Material Contract; and (iii) the Company or any of its Subsidiaries have not received any written, or to the Knowledge of the Company, oral claim of default under any such Material Contract. The Company has furnished or made available to Purchaser true and complete copies of all Material Contracts without redaction, including amendments thereto that are material in nature. The Company is not renegotiating or offering to renegotiate any Contract by Seller or, with a Top Customer in a way that would be materially adverse to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractCompany.
Appears in 2 contracts
Sources: Second Tranche Stock Purchase Agreement (Siebert Financial Corp), Stock Purchase Agreement (Siebert Financial Corp)
Material Contracts. Schedule 2.9 (a) Except for this Agreement, Section 3.14(a) of the Seller Disclosure Schedule sets forth Letter contains a complete and accurate correct list, as of the date hereof, of each Contract that meets the criteria described in this Section 3.14(a) under which Seller or any of its Subsidiaries has any current or future rights, responsibilities, obligations or liabilities (in each case case, whether written contingent or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(aotherwise) Contracts with respect or to which Seller has or any liability Subsidiary thereof is a party or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive paymentsany of their respective properties or assets is subject, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 Benefit Plans (all such Contracts of the Disclosure Schedule;
(d) all agreements type described in this Section 3.14(a), together with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) IP Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All on Section 3.14(a) of the foregoing (whether written or unwritten)Seller Disclosure Letter, including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively being referred to herein as “Material Contracts”. The ):
(i) each Contract that limits in any material respect the freedom of the Business (including as conducted by Purchaser or its affiliates after the Closing) to compete or engage in any line of business or geographic region or with any Person or to sell, supply or distribute any product or service or that otherwise has the effect of restricting, in any material respect, the Business (including Purchaser or its affiliates after the Closing) from the development, marketing or distribution of products and services, in each case, in any geographic area;
(ii) any material joint venture or limited liability company agreement (other than any such agreement solely between or among Seller has furnished and its wholly owned Subsidiaries) or similar Contract relating to the Purchaser trueBusiness;
(iii) each acquisition or divestiture Contract relating to the Business that contains representations, completecovenants, 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 Business of future payments in excess of $1,000,000, in each case, excluding any (x) post-closing retention payments or equity awards, and correct copies (y) amounts retained pursuant to customary indemnity escrow or holdback arrangements;
(iv) each Contract that gives any Person the right to acquire any Purchased Assets (excluding ordinary course commitments to purchase goods, products and off-the-shelf Technology) after the date hereof with consideration of all Material Contracts. Each Material more than $2,000,000;
(v) any Contract sets forth to provide material Source Code for any Business Product to any third Person, including any Contract that requires Seller or any of its Subsidiaries to put Source Code for any Business Product in escrow with a third Person on behalf of a licensee or contracting party;
(vi) any settlement or similar Contract with a Governmental Entity, other than those relating to (x) Taxes or (y) any Governmental Entity in its capacity as a customer of Seller or any of its Subsidiaries, that relates to the entire agreement Business;
(vii) except as has not been, and understanding would not reasonably be expected to be, individually or in the aggregate, material to the Business, any settlement or similar Contract restricting in any respect the operations or conduct of the Business (including the operation or conduct of the Business by Purchaser or its affiliates after the Closing);
(viii) each Contract relating to the Business pursuant to which Seller or any of its Subsidiaries has paid or received payments in excess of $5,000,000 in the fiscal year ended March 29, 2019, or is obligated to pay or entitled to receive payments in excess of $5,000,000 in the twelve (12)-month period following the date hereof, in each case, other than (A) Contracts solely between the Seller and its Subsidiaries or solely between wholly owned Subsidiaries of Seller, (B) Contracts with customers, suppliers, vendors, resellers, global service providers, global systems integrators, managed services providers or global technology partners of Seller or any of its Subsidiaries, (C) each lease, sublease or occupancy agreement in respect of Business Leased Real Property (each, a “Business Lease”) and (D) Contracts otherwise described in any other subsection of this Section 3.14(a);
(ix) each Contract that is (A) a Material Customer Agreement, (B) a Material Supplier Agreement, (C) a Material Reseller Agreement, (D) a Material Distributor Agreement or (E) a Material Government Entity Customer Agreement;
(x) except where the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening exercise of any event and/or such right or imposition of such limitation has not been, and would not reasonably be expected to be, individually or in the passage of timeaggregate, could constitute a default or breach under any such Material material to Business, each Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to that grants any right of termination first refusal or cancellation thereof. To right of first offer or that limits the knowledge ability of the SellerBusiness (including as conducted by the Purchaser or any of its affiliates after the Closing) to own, none operate, sell, transfer, pledge or otherwise dispose of any part of the parties Business or the Purchased Assets;
(xi) each Contract that contains any exclusivity rights or “most favored nations” provisions, in each case, that are material in any respect to the Business (including Purchaser or its affiliates after the Closing);
(xii) each Contract not otherwise described in any other subsection of this Section 3.14(a) evidencing or granting any Liens (other than Permitted Liens) on any Purchased Asset;
(xiii) each Business Lease involving annual lease payments in excess of $2,000,000; and
(xiv) any Contract not otherwise described in any other subsection of this Section 3.14(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) of Seller that is related to the Business (other than those agreements and arrangements described in Item 601(b)(10)(iii) of Regulation S-K of the SEC).
(b) True and complete copies of each Material Contract in effect as of the date hereof have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract been publicly filed with the SEC on or after January 1, 2018 and prior to the knowledge date hereof or have been made available to Purchaser. Neither Seller nor any of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel its Subsidiaries is in breach of or materially change default under the terms of any Material Contract, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect. To Seller’s Knowledge, as of the date hereof, no other party to any Material Contract is in breach of or default 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 Business Material Adverse Effect. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, each Material Contract is a valid, binding and enforceable obligation of the Seller or its Subsidiary which is party thereto and, to Seller’s Knowledge, of each other party thereto, and is in full force and effect, subject to the Enforceability Limitations and any expiration thereof in accordance with its terms existing as of the date hereof.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, (i) each Business Government Contract was legally awarded, (ii) no Business Government Contract or proposal for the award of a Business Government Contract is, as of the date hereof, the subject of bid or award protest proceedings, and (iii) neither Seller nor any of its Subsidiaries is in breach of or default under the terms of, and to Seller’s Knowledge, there is no basis for any claim of fraud (including a claim under the Civil False Claims Act) with regard to any or Business Government Contract. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, since March 28, 2014, (A) all material facts set forth or acknowledged by any representations, certifications or statements made or submitted by or on behalf of Seller or any of its Subsidiaries in connection with any Business Government Contract or Business Government Bid were true, accurate and complete as of the date of submission and made by an authorized representative of Seller or one of its Subsidiaries, and (B) neither any Governmental Entity nor any prime contractor or higher-tier subcontractor has notified Seller or any of its Subsidiaries in writing that Seller or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Business Government Contract. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, since March 28, 2014, (I) no costs incurred by Seller or any of its Subsidiaries pertaining to any Business Government Contract have been deemed finally disallowed in writing by a Governmental Entity or, to the Seller’s Knowledge, proposed for disallowance, and (II) no payment due to Seller or any of its Subsidiaries pertaining to any Business Government Contract has been withheld or set off, nor, to Seller’s Knowledge, has any claim been made to withhold or set off any such payment.
(d) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, since March 28, 2014, (i) none of Seller, any of its Subsidiaries or, to Seller’s Knowledge, any of their respective Principals (as defined in Federal Acquisition Regulation 52.209-5) has been debarred, suspended or excluded, or to Seller’s Knowledge, proposed for debarment, suspension or exclusion, from participation in or the award of Contracts or subcontracts for or with any Governmental Entity or doing business with any Governmental Entity, and, to Seller’s Knowledge, as of the date hereof, no circumstances exist that would reasonably be expected to warrant the institution of any such debarment, suspension or exclusion proceedings, in each case, relating to the Business, the Purchased Assets or the Assumed Liabilities, (ii) none of the Seller or any of its Subsidiaries has received any written request to show cause or, to Seller’s Knowledge, similar communication alleging that Seller or any of its Subsidiaries may be in breach or violation of a Business Government Contract or any Laws related thereto, (iii) none of Seller or any of its Subsidiaries has been declared nonresponsible or ineligible, or otherwise excluded from participation in the award of any Business Contract with a Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements), (iv) none of Seller or any of its Subsidiaries is for any reason relating to the Business listed on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs, (v) neither Seller nor any of its Subsidiaries, nor any of their respective directors or officers, nor to Seller’s Knowledge, any other employee is or has been under administrative, civil or criminal investigation, indictment or information by any Governmental Entity with respect to the award or performance of any Business Government Contract, the subject of any actual or, to Seller’s Knowledge, threatened in writing, “whistleblower” or “qui tam” lawsuit, audit (other than a routine contract audit) or investigation of Seller or any of its Subsidiaries with respect to any Business Government Contract, including any material irregularity, misstatement or omission arising thereunder or relating thereto alleged in writing, and, to Seller’s Knowledge, as of the date hereof, no facts or circumstances exist that would reasonably be expected to warrant the institution of any such investigation, indictment, lawsuit or audit, and (vi) neither Seller nor any of its Subsidiaries has made any (A) voluntary disclosure to any Governmental Entity with respect to any alleged or potential material irregularity, misstatement, omission, fraud or price mischarging, or other violation of Law, arising under or relating to a Business Government Contract or (B) mandatory disclosure, as required by the terms of a Business Government Contract or any Laws related thereto, including Federal Acquisition Regulation 52.203-13, to any Governmental Entity and, to Seller’s Knowledge, there are no facts that would require mandatory disclosure thereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Broadcom Inc.)
Material Contracts. Schedule 2.9 (a) Section 3.16 of the Company Disclosure Schedule sets forth Letter lists, and the Company has made available to Parent prior to the date of this Agreement, true, correct and complete copies of, any of the following contracts (or a complete and accurate listsummary 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 whether written or unwritten, of 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 following ContractsCompany or any of the 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, agreements and arrangements with respect or to sell, supply or distribute any service or product, in each case, that could reasonably be expected to be material to the Seller:business of the Company and the Company Subsidiaries, taken as a whole;
(aiii) Contracts with respect that relates to a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the 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 direct or indirect wholly-owned Company Subsidiary) or pursuant to which Seller the Company or any of the Company Subsidiaries has any liability or an obligation involving more than $15,000.00, (contingent or otherwise) to make a material investment in or a material extension of credit to any person;
(biv) Contracts 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 the business of the Company and the Company Subsidiaries, taken as a whole, in each 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 of the Company Subsidiaries has outstanding obligations in excess of $10,000,000 or (y) conditional or similar sale arrangements in connection with respect to which Seller expects to receive payments, the aggregate actual or incur costs or services, contingent obligations of more the Company and the Company Subsidiaries under such contract are greater than $15,000.00 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
(cvii) Contracts that may extend for a term of more than one year after would or would reasonably be expected to prevent or materially delay the Closing Company’s ability to consummate the Merger or the other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 Transactions. Each contract of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
type described in subclauses (i) Contracts or through (vii) above (in each case other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(jthan a Company Benefit Plan) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively is referred to herein as a “Company Material ContractsContract.”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts.
(b) Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Company Material Contract is validvalid and binding on the Company or the Company Subsidiary party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except for such failures to be valid and binding and or to be in full force and effect and enforceable that would not reasonably be expected to result, individually or in accordance with its termsthe aggregate, in a Material Adverse Effect on the Company. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Company Material Contract by Seller the Company or any of the Company Subsidiaries or, to the knowledge Knowledge of the SellerCompany, by any other party thereto, and no event has occurred that with the lapse of time or could cause the acceleration giving of notice or both would constitute a default thereunder by the Company or any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the SellerCompany Subsidiaries or, none to the Knowledge of the parties Company, by any other party thereto, in each case except as would reasonably be expected to any Material Contract have informed Seller that it will not fulfill its obligations thereunder result, individually or in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Selleraggregate, no party to in a Material Contract intends to terminate, accelerate, cancel or materially change Adverse Effect on the terms of any Material ContractCompany.
Appears in 2 contracts
Sources: Merger Agreement (International Coal Group, Inc.), Merger Agreement (Arch Coal Inc)
Material Contracts. Schedule 2.9 (i) Section 5.1(i)(i) of the Disclosure Schedule Schedules sets forth a complete true and accurate list, 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 each case whether written or unwritten, of all effect as of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect date of this Agreement to which Seller has is a party or which was entered into by or on behalf of Seller, or by which any liability of the Acquired Assets is bound in the following categories (the “Material Contracts”):
(A) any Contract establishing a joint venture or obligation collaboration, co-promotion or like arrangement, or involving more than $15,000.00a sharing with another Person of profits, contingent losses, costs, royalties, milestone payments, or otherwiseLiabilities 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;
(bB) Contracts with respect any Contract containing covenants prohibiting or limiting the right to which Seller expects to receive payments, compete or incur costs or services, of more than $15,000.00 engage in any twelve-month periodaspect of the Product Operations or prohibiting or restricting Seller’s ability to conduct the Product Operations with any Person or in any geographical area;
(cC) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required Contract granting most favored nation or exclusive rights relating to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect any Compound or Product to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(fD) distributionany 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), marketingincluding any covenant not to enforce or assert, resellerincluding 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, partnerin each case, salesthat 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, agencywhich 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, independent sales agency including proprietary information and referral contractsinvention assignment agreements with employees;
(gE) Contracts, instruments and arrangements any Contract under which Seller pays or receives milestone or royalty payments relating to any Indebtedness Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee thereofof the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(hG) Contracts and any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other arrangements dispute relating to the Acquired Assets or the Product Operations, including the conduct of Seller with any officer, director, manager, stockholder, equity holder, clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Affiliate of 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) Contracts standalone indemnity arrangements with clinical trial sites or other arrangements which place any limitation on clinical trial investigators; (ii) powers of attorney, letters of delegation, declarations and similar instruments executed by Seller in connection with the method of conducting or scope regulatory and ethics committee submissions and data processing activities for clinical studies outside of the Business includingU.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, without limitationmeeting planners, any agreement that contains any exclusivityThird Parties providing meeting support services, and non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsphysician advisory board participants (i.e. nurse advisors);
(jJ) Contracts any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other arrangements which require the Seller to deliver services on a “fixed fee” raw materials for any Compound or “not to exceed” basis;
(k) employmentProduct, severance, consulting, deferred compensation and similar related quality agreements;
(lK) Contracts with respect to mergers any Contract for the ongoing or acquisitions, sales planned analytical testing or storage of securities biological specimens collected from subjects participating in clinical trials of any Compound or material assets, or investments by SellerProduct;
(mL) Contracts with Governmental Entitiesany Contract for the distribution, including but not limited to promotion, marketing, reselling or other Commercialization of any franchise agreement, license agreement, Compound or right of way use agreementProduct;
(nM) strategic allianceany Contract for the maintenance of the safety database for any Compound or Product, co-marketing, joint development and any safety data exchange agreements or similar agreementspharmacovigilance agreements related to any Compound or Product;
(oN) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals Contract with any Governmental Entity;
(s) Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)public institutions; and
(tO) any other agreements or Contracts which are Contract that is material to the BusinessDevelopment, the Acquired Assetsmanufacture 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, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its their terms, subject to the Enforceability Exception. There 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 condition which has occurred that with notice or exists which constitutes or which, with or without notice, the happening of any event and/or the passage lapse of time, could or both, would constitute a material default or breach by Seller under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereofContract. To the knowledge Knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no other party to a Material Contract intends to terminateis in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, accelerateor both, cancel or materially change the terms of would constitute a material default by such other party under any Material ContractContract 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. Schedule 2.9 of the Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect As of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract (each Contract of the type described in this Section 4.11(a) to which Seller has the Company or any liability of its Subsidiaries is a party to or obligation involving more than $15,000.00, contingent bound by as of the date of this Agreement or otherwise;
(b) Contracts with respect to which Seller expects the Company or any of its Subsidiaries is a party to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 bound by and that is not terminable by Seller on thirty (30) days or less has been filed with the SEC prior written notice without material liability, penalty or premium;
(e) Contracts under which to the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating date hereof being referred to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;herein as a “Material Contract”):
(i) Contracts that is or other arrangements will be required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act and is not already so filed;
(ii) that limits or purports to limit in any material respect either the type of business in which place the Company or any limitation on of its Affiliates may engage or the method manner or locations in which any of conducting or scope of the Business including, without limitationthem may so engage in any business;
(iii) that includes any “most favored nations” terms and conditions (including with respect to pricing), any agreement exclusive dealing arrangement, any arrangement that contains grants any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, right of first offer or “most favored nation” provisionssimilar right, any area of mutual interest clause or similar clause or any other term, condition or clause that, in the case of each of the foregoing, individually or in the aggregate, limits or purports to limit in any material respect the ability of the Company or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business (excluding, in respect of each of the foregoing, customary joint operating agreements);
(jiv) Contracts that creates a partnership (other than a Tax partnership), joint venture, strategic alliance or other arrangements which require similar arrangement with respect to any material business or assets of the Seller to deliver services on Company and its Subsidiaries, taken as a “fixed fee” or “not to exceed” basiswhole;
(kv) employmentthat obligates the Company or any of its Subsidiaries to make any loans, severanceadvances or capital contributions to, consultingor investments in, deferred compensation any person other than (A) advances for expenses required under customary joint operating agreements and similar agreementscustomary advances to operators of Oil and Gas Interests not covered by a joint operating agreement or (B) any loan or capital contribution to, or investment in, (1) the Company or one of its wholly owned Subsidiaries, (2) any person (other than any officer, director or employee of the Company or any of its Subsidiaries) that is less than $25 million to such person or (3) to any officer, director or employee of the Company or any of its Subsidiaries that is less than $1 million to such officer, director or employee;
(lvi) Contracts with respect to mergers that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or acquisitions, sales other agreement (other than those solely between the Company and its Subsidiaries) providing for or guaranteeing indebtedness in excess of securities or material assets, or investments by Seller$50 million individually;
(mvii) Contracts with Governmental Entities, including but not limited to any franchise that is an acquisition agreement, license asset purchase, stock purchase or other similar agreement pursuant to which (A) the Company reasonably expects that it or any of its Subsidiaries is required to pay total consideration (including assumption of debt) after the date of this Agreement in excess of $50 million or (B) any other person has the right to acquire any assets of the Company or any of its Subsidiaries (or, after giving effect to the consummation of the Offer or the Merger, Parent or any of its Subsidiaries) or any interests therein after the date of this Agreement with a purchase price of more than $50 million;
(viii) that is an agreement providing for the sale by the Company or any of its Subsidiaries of Hydrocarbons that (A) has a remaining term of greater than 60 days and does not allow the Company or such Subsidiary to terminate it without penalty on 60 days’ notice or less or (B) contains a “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;
(ix) that provides for a call or option on production, or acreage dedication to a gathering, transportation or other arrangement downstream of the wellhead, covering in excess of 20 MMcf (or, in the case of liquids, in excess of 750 barrels) of the Company’s and its Subsidiaries’ Hydrocarbons per day (calculated on a yearly average basis);
(x) that is a treatment, gathering, processing or transportation agreement to which the Company or any of its Subsidiaries is a party involving the treatment, gathering, processing or transportation of more than 50 MMcf (or, in the case of liquids, in excess of 500 barrels) of Hydrocarbons per day (calculated on a yearly average basis);
(xi) that is a joint development agreement, exploration agreement, participation or right program agreement or similar agreement (excluding, in respect of way use each of the foregoing, customary joint operating agreements) that contractually requires the Company and its Subsidiaries to make expenditures that would reasonably be expected to be in excess of $100 million in the aggregate during the 12-month period following the date of this Agreement;
(xii) that is a collective bargaining agreement;
(nxiii) strategic alliancethat involves or could reasonably be expected to involve aggregate payments by or to the Company and/or its Subsidiaries in excess of $50 million in any 12-month period, co-marketingexcept for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of 60 days or less, and excluding joint development or similar agreementsoperating agreements and production sales Contracts;
(oxiv) that is an Oil and Gas Lease that contains express provisions (A) obligating the Company or any Subsidiary to drill ▇▇▇▇▇, pursuant to which the Company or any Subsidiary would reasonably be expected to be required to expend $25 million on any individual Oil and Gas Lease or $200 million in the aggregate on all collective bargaining agreements obligations under Oil and Gas Leases, (B) establishing bonus obligations in excess of $10 million that were not satisfied at the time of leasing or Contracts with any union;signing, (C) requiring payments or providing for a change in terms upon a change in control of the lessee or (D) providing for a fixed term, even if there is still production in paying quantities; and
(pxv) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans that is a settlement or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements similar agreement with any Governmental Entity or non-governmental entity that owns Order or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation consent of fiber optic lines, coaxial cables, a Governmental Entity to which the Company or any other Seller owned of its Subsidiaries is subject involving future performance by the Company or controlled facilities any of its Subsidiaries that is or equipment would reasonably be expected to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are be material to the BusinessCompany and its Subsidiaries, taken as a whole.
(b) Except as, individually or in the Acquired Assetsaggregate, would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, each Material Contract is a valid and binding obligation of the Company or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets its Subsidiaries (to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written they are parties thereto or unwrittenbound thereby), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable against the Company or its Subsidiaries and, to the Knowledge of the Company, each other party thereto, in accordance with its termsterms (subject to the Bankruptcy and Equity Exception). There is no event Except for breaches, violations or condition which defaults that would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Material Contract, has occurred violated any provision of, or exists which constitutes taken or failed to take any act which, with or without notice, the happening of any event and/or the passage lapse of time, could or both, would constitute a default or breach under any the provisions of such Material Contract by Seller orContract, to and neither the knowledge Company nor any of the Sellerits Subsidiaries has received written notice that it has breached, any other party thereto, violated or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to defaulted under any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge or, as of the Sellerdate of this Agreement, no party of an intention by any counterparty (other than the Company or any of its Subsidiaries) to a Material Contract intends to terminatecancel, accelerate, cancel terminate or materially change the terms of amend in any material respect or not renew any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Petrohawk Energy Corp), Merger Agreement (BHP Billiton LTD)
Material Contracts. Schedule 2.9 (a) Section 3.17 of the Seller's Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect contracts related to the Seller:Business (the "Material Contracts"):
(a1) 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) prohibiting it from freely engaging or competing in any business anywhere in the world, or (ii) entered into restricting Seller's right to use or disclose any information in its possession;
(4) Partnership, joint venture, or other similar contract arrangements;
(5) Sales, distributorship, material purchase orders or other similar contract arrangements relating to the sale of a material quantity of Products;
(6) The Seller's Contracts with respect to which Seller has any liability or obligation involving its Third Party Payors that represent more than $15,000.00, contingent or otherwise100,000 of revenues on an annualized basis (excluding government agencies);
(b7) Contracts with respect Any contract relating to which the acquisition or disposition of any business of Seller expects to receive payments(whether by merger, sale of stock, sale of assets or incur costs or services, of more than $15,000.00 in any twelve-month periodotherwise);
(c) 8) Contracts that may extend for a term related to the licensing of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed Intellectual Property or Proprietary Rights, including those listed on Schedule 2.9 of the Disclosure Schedule2.1(d);
(d9) all agreements Any contracts with Suppliers with respect a Third Party Payor or any other third party that has terms which require Seller to be in any kind of exclusive relationship with, or exclusively deal with, such Third Party Payor or other third party; or
(10) Any other contract which Seller has any liability creates future payment obligations in excess of $50,000 in the aggregate and which by its terms does not terminate or obligation involving more than $15,000.00 and that is not terminable without penalty by Seller on upon notice of thirty (30) days or less prior written notice without material liability, penalty or premium;less.
(eb) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, Buyer true and correct complete copies of all each of the Material Contracts. Each .
(c) All of the Material Contract sets forth the entire agreement Contracts are legal, valid and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding obligations and in full force and effect effect. Seller has duly performed all of its obligations under each Material Contract to the extent those obligations have accrued and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or whichdefault, with or without noticeviolation, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller's Knowledge, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to under any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations has occurred which affects the enforceability of any such Material Contract or any parties' rights thereunder, including without limitation rights of termination, modification and to the knowledge acceleration, except where any of the Sellerforegoing would not, no party to a Material Contract intends to terminateindividually or in the aggregate, accelerate, cancel or materially change the terms be Material.
(d) Seller is in compliance with all confidentiality and privacy provisions of any each Material Contract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Dj Orthopedics Inc), Asset Purchase Agreement (Orthologic Corp)
Material Contracts. (a) Schedule 2.9 3.12 of the Seller Disclosure Schedule Letter sets forth a complete list of each of the following Contracts to which, 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) all material Contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment (other than agreements with employees, non-exclusive licenses granted to the Company’s or its Subsidiaries’ customers, and accurate listnon-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms);
(v) all partnership, joint venture or other similar agreements or arrangements;
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or a series of related agreements) with an aggregate outstanding principal amount not exceeding $1,000,000;
(vii) any agreement for the disposition or acquisition by the Company or any of its 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 material business or any material amount of assets other than in the ordinary course of business;
(viii) any 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 whether written case, for the 2022 fiscal year measured by the aggregate obligations paid or unwrittenagreed to pay to or by the Company, as applicable;
(ix) any agreement restricting or limiting the payment of all 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 development of Intellectual Property, other than those entered into in the ordinary course of business with Company employees and contractors on the Company’s standard form for such Contracts; and
(xi) to the extent not set forth in Schedule 3.12(a) of the following ContractsSeller Disclosure Letter pursuant to another subsection of this Section 3.12(a), all material agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;Governmental Authority.
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, A true and complete copy of more than $15,000.00 in each Company Material Contract (including any twelve-month period;
(camendments thereto) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into prior to the Ordinary Course date of Business that are not otherwise required this Agreement has been made available to Buyer prior to the date of this Agreement. Each Company Material Contract is a valid and binding agreement of the Company or its applicable Subsidiary, except where the failure to be disclosed on Schedule 2.9 of valid and binding would not, individually or in the Disclosure Schedule;
(d) all agreements with Suppliers with respect aggregate, reasonably be expected to which Seller has any liability have a Company Material Adverse Effect. Except as would not, individually or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilityin the aggregate, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenuereasonably be expected to have a Company Material Adverse Effect, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts neither the Company or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orSubsidiary nor, to the knowledge Knowledge of the SellerCompany, any other party thereto, is in breach of or could cause the acceleration of default under any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge such Company Material Contract, (ii) as of the Sellerdate of this Agreement, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There there are no pending renegotiations of material disputes in connection with any such Company Material Contract and to the knowledge (iii) as of the Sellerdate of this Agreement, no party to a under any Company Material Contract intends has given written notice of its intent to terminate, accelerate, cancel terminate or materially change the terms of any 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. Schedule 2.9 (a) Except as set forth in Section 4.5(a) of the Company Disclosure Schedule sets forth a complete and accurate listSchedule, in each case whether written as of the date hereof neither the Company nor any of its Subsidiaries has entered into or unwritten, of all is bound by any of the following Contracts, agreements and arrangements with respect to the Seller:types of Contracts (each a “Material Contract”):
(ai) any Contracts with respect to which Seller has any liability Affiliate of the Company or obligation involving more than $15,000.00, contingent or otherwiseits Subsidiaries;
(bii) any Contracts with respect relating to any Indebtedness;
(iii) any Contracts under which Seller expects the Company or any of its Subsidiaries has made or is obligated to receive paymentsmake, directly or indirectly, any capital contribution to, or incur costs other investment in, any Person in any amount;
(iv) any Contracts prohibiting or restricting the ability of the Company or any of its Subsidiaries to conduct business in any geographical area, to solicit clients or to compete with any Person;
(v) any Contracts that provide for earn-outs or other similar contingent obligations to be paid by the Company or any of its Subsidiaries;
(vi) any Contracts for the Company’s or any Subsidiary’s purchase of materials, supplies, products or services, involving annual payments in excess of more than $15,000.00 100,000 in any twelve-month periodyear;
(cvii) Contracts that may extend for any joint venture, strategic alliance, partnership or similar Contract involving a term sharing of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed profits or expenses or payments based on Schedule 2.9 revenues or profits of the Disclosure ScheduleCompany or any of its Subsidiaries;
(dviii) all any reinsurance Contracts (each a “Reinsurance Agreement”) and any trust agreements, letters of credit or other 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 assets of the Company and its Subsidiaries;
(x) any Contract with any Governmental 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 Suppliers 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 Seller has the Company or any liability 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 obligation involving more 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 Proceeding or settlement agreement to which the Company or any of its Subsidiaries is a party, other than 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 $15,000.00 and 100,000 that is not terminable by Seller on thirty notice of ninety (3090) or fewer calendar days or less prior written notice without material liability, penalty or premium;
(exx) Contracts under which the amount payable by Seller is dependent on the revenueany real property lease, income sublease or other similar measure of Seller or any other PersonContract;
(fxxi) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement Contract that contains any exclusivity, non-competition, non-solicitation, no-hire, right “change of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed feecontrol” or “not to exceed” basis;
(k) employmentsimilar term or provision that may be triggered, severance, consulting, deferred compensation breached or violated by the Company’s entering into this Agreement and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of consummating the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)Transactions; and
(txxii) other agreements or Contracts which are material each Contract entered into prior to the Business, date hereof that is required to be filed by the Acquired Assets, or the Seller, or which Company as a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the items set forth above. All the foregoing Securities Act.
(whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. b) Each Material Contract is valid, binding and in full force and effect effect, and is enforceable against the Company or its Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto in accordance with its terms, except as such enforcement may be limited by (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to the rights of creditors generally, or (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law. There is no event or condition which Each of the Company and its Subsidiaries has occurred or exists which constitutes or which, with or without notice, the happening duly performed all of any event and/or the passage of time, could constitute a default or breach its obligations under any each such Material Contract by Seller or, to the knowledge extent that such obligations have accrued. There are no existing defaults (or circumstances, occurrences, events or acts that, with the giving of notice or lapse of time or both that would reasonably be expected to become defaults) of the Seller, Company or its Subsidiaries or any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of under any Material Contract. The Company has made available to Buyer prior to the date hereof complete copies of all Material Contracts.
Appears in 2 contracts
Sources: Share Acquisition Agreement (First Trinity Financial CORP), Share Acquisition Agreement (First Trinity Financial CORP)
Material Contracts. Schedule 2.9 (a) Section 3.15(a) of the Company Disclosure Schedule Letter sets forth a correct and complete and accurate list, in list of each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect Contracts related to the Seller:Business to which Seller or any of its Subsidiaries is a party or by which Seller or any of its Subsidiaries or any of the Program Assets is bound as of the Execution Date (each, a “Material Contract”):
(ai) each Contract pursuant to which Seller or any of its Subsidiaries currently leases or subleases real property to or from any Person;
(ii) each Contract (or group of related Contracts with respect to which a single transaction or series of related transactions) that involves future payments, other residual Liability, performance or services or delivery of goods or materials to or by Seller has or any liability of its Subsidiaries of any amount or obligation involving more than $15,000.00, contingent value reasonably expected to exceed [**] in any future 12-month period or otherwise[**] over the life of the Contract;
(biii) Contracts 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 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 conduct of research and development activities or clinical trials with respect to which Seller expects to receive paymentsany Program Assets, or incur costs otherwise involving the development of any material Intellectual Property Rights related to the Business on behalf or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after at the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure request of Seller or any other Personof its Subsidiaries;
(fviii) distributioneach Contract pursuant to which Seller or any of its Subsidiaries is a party, marketingor is otherwise bound, reseller, partner, sales, agency, independent sales agency and referral contractsthe 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);
(gix) Contracts, instruments and arrangements relating each Contract pursuant to which Seller or any Indebtedness of its Subsidiaries grants or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts receives a license or other arrangements which place right under any limitation on the method of conducting or scope of the Business including, without limitation, any agreement Intellectual Property Rights that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which 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 Acquired 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 solicit or hire any Person or solicit business from any Person, and each Contract that could require the disposition of any material assets or line of business of Seller or its Subsidiaries (or, after the Closing, Buyer or any of its Subsidiaries);
(xiii) 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 containing a “most favored nation” or similar provision in favor of any counterparty of Seller or any 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 purchase money security interests in connection with the acquisition of equipment in the ordinary course of business consistent with past practice;
(xvii) each Contract containing covenants requiring capital expenditures;
(xviii) each Contract related to any settlement of any Action;
(xix) each Contract that was not negotiated and entered into on an arm’s-length basis;
(xx) each Contract that would reasonably be expected to prevent, materially delay or materially impair the Sellerconsummation of the Transactions; and
(xxi) 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 which made available to, Buyer current and complete copies of each written Material Contract and a reasonable purchaser would consider important detailed written description of each oral Material Contract, in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten)each case, including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties waivers thereto. Each Material Contract is valid, binding and enforceable against Seller or its Subsidiaries, as the case may be, and, to the Knowledge of Seller, each other party thereto, and is in full force and effect and enforceable effect. Other than any consent or waiver that may be required in accordance connection with its terms. There the consummation of the Transactions, there is no event breach or condition which has occurred violation of, or exists which constitutes or whichdefault under, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller oror any of its Subsidiaries and no event has occurred that, to with the knowledge lapse of time or the Sellergiving of notice or both, would constitute a default thereunder by Seller or any other party thereto, of its Subsidiaries or could would permit or cause the termination, non-renewal or modification thereof or acceleration or creation of any right or obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereofthereunder. To the knowledge Knowledge of the Seller, none of the parties no counterparty to any Material Contract have informed Seller that it will not fulfill its obligations thereunder is in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel breach or materially change the terms of any Material Contractviolation thereof.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Biohaven Research Ltd.), Membership Interest Purchase Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Material Contracts. Schedule 2.9 (a) Section 3.22(a) of the Disclosure Schedule sets forth Company Letter contains a true, complete and accurate listcorrect 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 whether written or unwritten, of all as of the following 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, agreements and arrangements with respect to the Seller:”):
(ai) Contracts with respect each 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 Company or any of its Subsidiaries, (B) pursuant to which Seller has the Company or any liability of its Subsidiaries may be obligated to make any bonus or obligation involving more than $15,000.00similar payment to any current or former Company Service Provider in connection with the consummation of the transactions contemplated by this Agreement, contingent or otherwise(C) that provides for indemnification of any current or former Company Service Provider;
(bii) Contracts each Contract with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month periodGovernmental Authority;
(ciii) Contracts that may extend for 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 term minimum quantity of more than one year after the Closing other than goods relating to any vendor agreement entered into the Ordinary Course of Business that are not otherwise required Company Product or has agreed to be disclosed on Schedule 2.9 of the Disclosure Schedulepurchase goods relating to any Company Product exclusively from a certain party;
(div) all agreements with Suppliers with 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 Seller 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 liability of its Subsidiaries or obligation involving more than $15,000.00 and 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 Seller on the Company or its Subsidiaries without penalty without more than thirty (30) days or less prior written notice without material liability, penalty or premiumdays’ notice;
(evi) Contracts under which each Contract that limits the amount payable by Seller is dependent on freedom of the revenueCompany, income or other similar measure any of Seller its Subsidiaries or any other 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;
(fvii) distributioneach Contract with any Person providing for a partnership, marketingjoint venture, resellerlimited liability company agreement, partnerand each material collaboration, salesresearch and development arrangement, agencystrategic alliance, independent sales agency co-marketing arrangement or similar profit sharing arrangement (other than any such agreement solely between or among the Company and referral contractsits wholly owned Subsidiaries);
(gviii) Contractseach Contract entered into since January 1, instruments and arrangements 2022: (A) relating to the disposition or acquisition by the Company or any Indebtedness of its Subsidiaries of any business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the guarantee thereofshare 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);
(hix) Contracts 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 other arrangements its Subsidiaries in a manner consistent with past practice in connection with the development, sale or licensing of Seller with any officer, director, manager, stockholder, equity holderCompany Products), or Affiliate (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 Sellerinventory, raw materials or equipment in the ordinary course of business of the Company and its Subsidiaries in a manner consistent with past practice;
(ix) 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 other arrangements which place end-users of such Company Products entered into in the ordinary course of business);
(xi) each Contract that grants any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, 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 nationnations” provisionsprovisions 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;
(jxiii) Contracts 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 arrangements 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 require the Seller 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 deliver services incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on a “fixed fee” any property or “not asset of the Company or its Subsidiaries that is material to exceed” basisthe Company and its Subsidiaries or (D) is an interest rate derivative, currency derivative, forward purchasing, swap or other hedging contract;
(kxiv) employment, severance, consulting, deferred compensation and similar agreementseach Collective Bargaining Agreement;
(lxv) Contracts each Contract that provides for a settlement or conciliation (A) with respect to mergers any Governmental Authority that (1) restricts or acquisitions, sales imposes material obligations upon the Company or its Subsidiaries (taken as a whole) or (2) materially disrupts the business of securities or material assetsthe Company and its Subsidiaries (taken as a whole) as currently conducted, or investments by Seller(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;
(mxvi) the top ten (10) Contracts measured by the aggregate payments made during the fiscal year ended December 31, 2024 with Governmental Entitiesa customer of the Company or any Subsidiary of the Company, including but not limited distributors (excluding Contracts under which there are no further obligations of the Company or any Subsidiary of the Company to any franchise agreement, license agreement, or right of way use agreementdeliver products and purchase orders);
(nxvii) strategic alliance, co-marketing, joint development any Contract (other than the type described in the subclauses above) that involves aggregate payments by or similar agreements;
(o) all collective bargaining agreements to the Company or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside Subsidiary of the Ordinary Course Company in excess of Business;
(r) agreements, licenses, permits, registrations, $5,000,000 per annum in the current calendar year or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)$5,000,000 in the aggregate; and
(txviii) each Contract not otherwise described in any other agreements subsection of this Section 3.21(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K as promulgated by the SEC) with respect to the Company.
(b) A true, complete or Contracts which are redacted, as the case may be, and correct copy of each written Material Contract in effect as of the date of this Agreement, and a true, complete and correct summary of each oral Material Contract in effect as of the date of this Agreement, has been made available to Buyer prior to the date of this Agreement. Except for matters that would not, individually or in the aggregate, be or reasonably expected to be, material to the BusinessCompany and its Subsidiaries, the Acquired Assetstaken as a whole, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each i) each Material Contract is a valid, binding and in full force and effect and enforceable obligation of the Company or one of its Subsidiaries, on the one hand, and, to the knowledge of the Company, of the other party or parties thereto, on the other hand, in accordance with its terms. There , subject to the Enforceability Exceptions, and each Material Contract is no event in full force and effect, (ii) the Company and each of its Subsidiaries has performed all obligations required to be performed by it under each Material Contract and, to the knowledge of the Company, each other party to each Material Contract has performed all obligations required to be performed by it under such Material Contract, (iii) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract, has breached or condition which has occurred violated in any material respect any provision of, or exists which constitutes taken or failed to take any act which, with or without notice, the happening lapse of any event and/or the passage of timetime or both, could would constitute a material breach or a default or breach under any the provisions of such Material Contract by Seller Contract, and neither the Company nor any of its Subsidiaries has received written or, to the knowledge of the SellerCompany, any other party theretooral notice of any, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Sellerand, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the SellerCompany, no none of the Company or any of its Subsidiaries is in, default or material breach under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a default or material breach under) any Material Contract and (iv) neither the Company nor any of its Subsidiaries has received any written or, to the knowledge of the Company, oral notice from any other party to a any such Material Contract that such party intends to terminate, accelerateor not renew, cancel any such Material Contract or materially change to adjust the terms of fee schedule under such Material Contract in any Material Contractmaterial respects.
Appears in 2 contracts
Sources: Purchase Agreement (BioNTech SE), Purchase Agreement (CureVac N.V.)
Material Contracts. Schedule 2.9 of the Disclosure Schedule 4.27 sets forth a complete list of the Material Contracts. Complete and accurate list, in each case whether written or unwritten, of all copies of the following Contracts, agreements and arrangements with respect Material Contracts have been delivered to the SellerPurchaser, and:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope none of the Business including, without limitation, any agreement that Material Contracts contains any exclusivity, non-competition, non-solicitation, no-hire, right covenant: (A) expressly limiting the freedom of first refusalthe Corporation to compete in any line of business, or “most favored nation” provisionstransfer or move any of its assets; or (B) which affects the business practices, operations or financial condition of the Corporation or the continued operation of the Corporation on or after the Closing Date as currently conducted;
(jii) Contracts or other arrangements which require the Seller transactions contemplated by this Agreement will not result in any change to deliver services on a “fixed fee” or “not to exceed” basisany material terms of the Material Contracts;
(kiii) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each each Material Contract is valida legal, valid and binding obligation of the Corporation, enforceable by or 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 similar proceedings, and enforceable to the extent that equitable remedies such as specific performance and injunction are in accordance the discretion of the competent court;
(iv) there are no exclusivity provisions or similar such provisions in any Material Contract or other Contract with its terms. There any Person that the Corporation has provided, is or will be providing, or is required to provide, any products or services to;
(v) there are no event “most favoured nations” or condition similar such favourable pricing or commercial terms in any Material Contract or other Contract with any Person that the Corporation has provided, is or will be providing, or is required to provide, any products or services to;
(vi) neither the Vendors nor the Corporation have entered into any agreements, contracts, covenants or other arrangements with any Person to provide for subsidies, discount purchase privileges or any other similar arrangements; and
(vii) in all material respects, all obligations of the Corporation under each of the Material Contracts have been performed, and there are no defaults, events of default or violations (or which has occurred or exists which constitutes or which, with or without notice, the happening lapse of any event and/or the passage of timetime or both, could constitute reasonably be expected to, individually or in the aggregate, result in a default, event of default or breach violation) under any such Material Contract by Seller on the part of the Corporation or, to the knowledge of the SellerVendors, any on the part of the other party thereto(or parties) to such Material Contract. Neither the Corporation nor, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the SellerVendors, no any other party (or parties) to a any Material Contract intends to terminate, accelerate, cancel or materially change the terms of has repudiated any such Material Contract.
Appears in 2 contracts
Sources: Share Purchase Agreement (Evio, Inc.), Share Purchase Agreement (Evio, Inc.)
Material Contracts. Schedule 2.9 (a) Section 3.12 of the Company Disclosure Schedule Letter sets forth a complete and accurate list, in list of each case whether written or unwritten, of all of the following ContractsContracts to which, agreements and arrangements as of the date of this Agreement, the Company or any of its Subsidiaries is a party (each, a “Company Material Contract”):
(i) Each contract that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), with respect to the Seller:Company or any of its Subsidiaries (assuming the Company was subject to the requirements of the Exchange Act);
(aii) each Contract (A) not to (or otherwise restricting or limiting the ability of the Company or any of its Subsidiaries to) compete in any line of business or geographic area or (B) to restrict the ability of the Company or any of its Subsidiaries to conduct business in any geographic area;
(iii) 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;
(iv) 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;
(v) all material Contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment (other than agreements with respect employees, non-exclusive licenses granted to which Seller has the Company’s or its Subsidiaries’ customers, and non-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms);
(vi) all partnership, joint venture or other similar agreements or arrangements;
(vii) any liability agreement relating to indebtedness for borrowed money or obligation involving more the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or a series of related agreements) with an aggregate outstanding principal amount not exceeding $1,000,000;
(viii) any agreement for the disposition or acquisition by the Company or any of its Subsidiaries with material obligations of the Company or any of its Subsidiaries (other than $15,000.00confidentiality obligations) remaining to be performed or material Liabilities of the Company or any of its Subsidiaries continuing after the date of this Agreement, contingent of any material business or otherwiseany material amount of assets other than in the ordinary course of business;
(ix) any agreement with (A) the top 10 customers of the Company and its Subsidiaries taken as a whole, as applicable, and (B) the top 10 suppliers of the Company and its Subsidiaries taken as a whole, as applicable, in each case, for the 2024 fiscal year measured by the aggregate obligations paid or agreed to pay to or by the Company, as applicable;
(x) any agreement restricting or limiting the payment of dividends or the making of distributions to shareholders, including intercompany dividends or distributions other than such restrictions or limitations that are required by applicable Law;
(xi) any Contract for the development of Intellectual Property, other than those entered into in the ordinary course of business with Company employees and contractors on the Company’s standard form for such Contracts; and
(xii) all material agreements with any Governmental Authority.
(b) Contracts with respect to which Seller expects to receive paymentsEach Company Material Contract is a valid and binding agreement of the Company or its applicable Subsidiary, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after except where the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required failure to be disclosed on Schedule 2.9 of valid and binding would not, individually or in the Disclosure Schedule;
(d) all agreements with Suppliers with respect aggregate, reasonably be expected to which Seller has any liability have a Company Material Adverse Effect. Except as would not, individually or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilityin the aggregate, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenuereasonably be expected to have a Company Material Adverse Effect, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts neither the Company or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orSubsidiary nor, to the knowledge Knowledge of the SellerCompany, any other party thereto, is in breach of or could cause the acceleration of default under any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge such Company Material Contract, (ii) as of the Sellerdate of this Agreement, none there are no material disputes in connection with any such Company Material Contract, and (iii) as of the parties to date of this Agreement no party under any Company Material Contract have informed Seller that it will not fulfill has given written notice of its obligations thereunder in all intent to terminate or otherwise seek a material respects. There are no pending renegotiations of any Material Contract and amendment to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any such Company Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Avalon GloboCare Corp.), Agreement and Plan of Merger (Avalon GloboCare Corp.)
Material Contracts. Schedule 2.9 i. All Contracts required to be filed as exhibits to the Issuer SEC Documents have been so filed in a timely manner. Section 3.1(n) of the Disclosure Schedule Schedules sets forth a true and complete and accurate list, in each case whether written or unwrittenas of the date hereof, of all each of the following Contracts, agreements excluding any Benefit Plans, to which Issuer or any of its Subsidiaries is a party or by which Issuer or any of its Subsidiaries or any of their assets or businesses are bound (and arrangements with respect to the Seller:any amendments, supplements and modifications thereto):
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwiseContract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(b) Contracts with respect any Contract that materially limits the ability of Issuer or any of its Subsidiaries to which Seller expects to receive payments, engage or incur costs or services, of more than $15,000.00 compete in any twelve-month periodline of business or in any geographic area;
(c) any Contract or series of related Contracts that may extend relating to indebtedness for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Scheduleborrowed money;
(d) all agreements with Suppliers with respect any Contract required to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premiumbe disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;
(e) Contracts any license, sublicense, development or collaboration agreement or other Contract relating to Issuer Material Intellectual Property (excluding Excluded Contracts);
(f) any Contract with an Issuer Material Customer or an Issuer Material Supplier;
(g) any purchase, sale or supply Contract that contains material volume requirements or commitments or exclusive purchasing arrangements on Issuer or its Subsidiaries or most favored nation provisions granted by Issuer or its Subsidiaries;
(h) any Issuer Lease;
(i) any Contract that requires Issuer or its Subsidiaries to pay any material leasing, brokerage or similar commissions in connection with the acquisition, sale, or leasing of any Issuer Owned Real Property;
(j) other than any Issuer Lease, any Contract under which Issuer or its Subsidiaries are lessors of or permits any third party to hold, operate, in each case, any material tangible property (other than real property), owned or controlled by Issuer or its Subsidiaries;
(k) any Contract 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 Issuer or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount payable by Seller is dependent on the revenueof assets or businesses;
(l) any acquisition or divestiture Contract (A) entered into since January 1, income 2022, or (B) that contains “earn-out” provisions or other contingent payment obligations that have not been satisfied in full;
(m) any Contract that by its terms limits the payment of dividends or other distributions by Issuer or any of its Subsidiaries;
(n) any Contract for any joint venture, partnership or similar measure arrangement, or any Contract involving a sharing of Seller material revenues, profits, losses, costs, or liabilities by Issuer or any of its Subsidiaries with any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements any “single source” supply Contract pursuant to which goods or Contracts with materials that are material to Issuer or any union;of its Subsidiaries are supplied to Issuer or such Subsidiary from an exclusive source
(p) powers of attorneyany Labor Agreement;
(q) agreementsany Contract (other than a Benefit Plan) between Issuer or any Subsidiary of Issuer, Contractson the one hand, instruments, commitments, plans and any director or other arrangements officer of Seller outside Issuer or any Person beneficially owning five percent or more of the Ordinary Course outstanding shares of BusinessIssuer Common Stock or any of their respective Affiliates (other than Issuer and a Subsidiary of Issuer), on the other hand;
(r) agreements, licenses, permits, registrations, or other approvals any Contract with any Governmental Entity;; or
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, Contract pursuant to which Issuer or any other Seller owned Subsidiary of Issuer has uncapped indemnification obligations to any Person (except for (i) Contracts related to Licensed Intellectual Property entered into in the ordinary course and (ii) Contracts with the customers or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge end users of the Seller, Issuer or any other party thereto, of its Subsidiaries on the Issuer’s or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractSubsidiary’s form agreement).
Appears in 2 contracts
Sources: Contribution and Exchange Agreement (Ekso Bionics Holdings, Inc.), Contribution and Exchange Agreement (Applied Digital Corp.)
Material Contracts. Schedule 2.9 (a) Except as disclosed in Section 4.18 of the PDN Disclosure Schedule sets forth Schedule, and except for this Agreement, neither PDN nor any of its Subsidiaries is bound by any contract, arrangement, commitment or understanding:
(i) that constitutes a complete partnership, joint venture, technology sharing or similar agreement between PDN or any of its Subsidiaries and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements any other person;
(ii) with respect to the Seller:service of any directors, officers, employees, or independent contractors or consultants that are natural persons, involving the payment of $100,000 or more in any 12 month period, other than those that are terminable by PDN or any of its Subsidiaries on no more than 30 days’ notice without penalty;
(aiii) Contracts that limits the ability of PDN or any of its Subsidiaries to compete or enter into in any line of business, in any geographic area or with any person, in each case, which limitation or requirement would reasonably be expected to be material to PDN and its Subsidiaries taken as a whole;
(iv) with or to a labor union, works council or guild (including any collective bargaining agreement or similar agreement);
(v) relating to the use or right to use Intellectual Property, including any license or royalty agreements, other than an agreement entered into in the ordinary course of business and that is not material to PDN;
(vi) that provides for indemnification by PDN to any person, other than an agreement entered into in the ordinary course of business and that is not material to PDN;
(vii) between PDN or any of its Subsidiaries and any current or former director or officer of PDN or any of its Subsidiaries, or any affiliate of any such person (other than an PDN Benefit Plan);
(viii) with respect to which Seller (A) Indebtedness, (B) any capital lease obligations to any person other than PDN or any of its Subsidiaries, (C) any obligations to any person other than PDN or any of its Subsidiaries in respect of letters of credit and bankers’ acceptances, (D) any indebtedness to any person other than PDN or any of its Subsidiaries under interest rate swap, hedging or similar agreements, (E) any obligations to pay to any person other than PDN or any of its Subsidiaries the deferred purchase price of property or services, (F) indebtedness secured by any Lien on any property owned by PDN or any of its Subsidiaries even though the obligor has not assumed or otherwise become liable for the payment thereof, or (G) any liability guaranty of any such obligations described in clauses (A) through (F) of any person other than PDN or obligation involving more than any of its Subsidiaries, in each case, having an outstanding amount in excess of $15,000.00, contingent 100,000 individually or otherwise$250,000 in the aggregate;
(bix) Contracts with respect that is material to which Seller expects PDN or that contains any so called “most favored nation” provision or similar provisions requiring PDN to receive payments, offer to a person any terms or incur costs conditions that are at least as favorable as those offered to one or services, of more than $15,000.00 in any twelve-month periodother persons;
(cx) Contracts 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 agreement which, together with any other related agreement, involves the expenditure by the PDN of less than $100,000;
(xvi) that may extend represents a purchase order with any supplier for the purchase of inventory items in an amount in excess of $100,000 of materials;
(xvii) pursuant to which PDN or any Subsidiary is a party and having a remaining term of more than one (1) year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required date hereof or involving a remaining amount payable thereunder (either to be disclosed on Schedule 2.9 or from PDN) as of the Disclosure Scheduledate hereof, of at least $100,000;
(dxviii) all agreements with Suppliers with respect to which Seller has that involves the payment of $250,000 or more in any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;12-month period after the date hereof; or
(exix) Contracts under which that would prevent, delay or impede the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holderconsummation, or Affiliate otherwise reduce the contemplated benefits, of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right transactions contemplated by this Agreement. PDN has previously made available to PDN or its representatives complete and accurate copies of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside each Contract of the Ordinary Course of Business;
type described in this Section 4.18(a) (r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “PDN Material Contracts”. The Seller has furnished to ).
(b) All of the Purchaser true, complete, PDN Material Contracts were entered into at arms’ length in the ordinary course of business and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding are valid and in full force and effect and enforceable effect, except to the extent they have previously expired in accordance with its their terms. There Neither PDN nor any of its Subsidiaries has given or received a notice of cancellation or termination under any PDN Material Contract, or has, or is alleged to have, and to the knowledge of PDN, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act, and no event or condition exists, which has occurred or exists which constitutes or which, with or without notice, the happening lapse of any event and/or the passage of time, could time or both would constitute a default under the provisions of, any PDN Material Contract.
(c) Neither PDN nor any Subsidiary of PDN is in breach of or breach default under the terms of any PDN Material Contract, except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a PDN Material Adverse Effect. To the knowledge of PDN, no other party to any PDN Material Contract by Seller oris in breach of or default under the terms of any PDN Material Contract except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a PDN Material Adverse Effect. Each PDN Material Contract is a valid and binding obligation of PDN or the Subsidiary of PDN which is party thereto and, to the knowledge of the SellerPDN, any of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or could cause the acceleration other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of any obligation or loss specific performance and injunctive and other forms of any rights of any party thereto or give rise equitable relief may be subject to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract equitable defenses and to the knowledge discretion of the Sellercourt before which any proceeding therefor may be brought.
(d) Neither PDN nor any Subsidiary of PDN is subject to any continuing obligations or restrictions under the Alliance Agreement between Monster Worldwide Inc. and PDN or the Diversity Recruitment Partnership Agreement, no party dated as of November 6, 2012, between PDN and LinkedIn Corporation (including under any amendment to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contracteither such agreement).
Appears in 2 contracts
Sources: Merger Agreement (Ladurini Daniel), Merger Agreement (Professional Diversity Network, Inc.)
Material Contracts. Schedule 2.9 (a) Section 4.15 of the Company Disclosure Schedule Schedules sets forth a true, correct and complete and accurate list, as of the date of this Agreement, of the following Contracts (but not including any Lease Agreements, which are addressed by Section 4.23) to which the Company or any of the Company Subsidiaries is party or by which any of the Company or any of the Company Subsidiaries’ assets or properties are bound (collectively, the “Material Contracts”):
(i) any Contract not otherwise described in any other subsection of this Section 4.15(a) that would be required to be filed by the Company as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) any Contract pursuant to which the Company and/or any of the Company Subsidiaries may be entitled to receive or obligated to pay more than $750,000 in any calendar year;
(iii) any Contract that requires the Company or any of the Company Subsidiaries 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 whether written case, other than Contracts that expire or unwritten, of all are terminable or cancellable without penalty within one year following the Closing Date or such Contracts that are immaterial to the conduct of the business of the Company and the Company Subsidiaries, 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 Contractsthe 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 payables incurred or arising in the ordinary course of business;
(viii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(ix) any Contract that provides for the establishment or operation of any joint venture, partnership, joint development, strategic alliance or similar arrangement that is material to the business of the Company and the Company Subsidiaries, taken as a whole;
(x) any Contract to which a (A) Governmental Authority (other than Contracts with 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 and arrangements 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 Seller:Company’s or any Company Subsidiary’s customers or vendors in the ordinary course of business or partners in the ordinary course of business in substantially similar form as the licenses granted under the partner Contracts linked to in the “Links to Key Terms of Service and Privacy Statement” document Made Available in the Data Room), and/or (B) Intellectual Property that is material to the business of the Company or the Company Subsidiaries is licensed or otherwise made available (including through agreements containing releases, immunities from suit, covenants not to ▇▇▇ or non-assertion provisions) to the Company or any of the Company Subsidiaries by any Person (except for Shrink Wrap Licenses, Open Source Software licenses and licenses granted to the Company or any of the Company Subsidiaries from consultants or independent contractors performing services for the Company or any of the 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”);
(axiv) Contracts with respect any labor, collective bargaining agreement or similar agreements; and
(xv) any insurance policies required to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;be set forth in Section 4.20 of the Company Disclosure Schedules.
(b) Contracts with respect The Company has Made Available to which Seller expects 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 receive paymentshave, individually or incur costs or servicesin the aggregate, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilityCompany Material Adverse Effect, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each each Material Contract is valid, binding and 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 its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without noticeexcept as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Laws affecting creditors’ rights generally and by general principles of equity, and (ii) as of the happening date of this Agreement, none of the Company nor any event and/or of the passage of timeCompany Subsidiaries party to, could constitute a default or breach under any such Material Contract by Seller ornor, to the knowledge of the SellerCompany’s Knowledge, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder Contract, is in all material respects. There are no pending renegotiations breach of or default under, or has provided or received any written notice of any Material Contract and intention to the knowledge of the Sellerterminate or seek renegotiation of, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Material Contracts. Schedule 2.9 (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) that is a “material contract” within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K;
(ii) that contains a 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 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 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 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 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 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 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 in effect as of the date hereof.
(c) In each case, except as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company, (i) each Material Contract is a valid and legally binding agreement of the Company or 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 it prior to the date hereof under each Material Contract, (iii) neither the Company nor any of its Subsidiaries, and, to the Knowledge of the Company, any counterparty or counterparties, is in breach of any provision of any Material Contract, and (iv) 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 or provide any party thereto with the right to terminate such Material Contract. Section 3.16(c) of the Company Disclosure Schedule sets forth a true and complete list as of the date hereof of (x) all Material Contracts pursuant to which consents or waivers are or may be required and accurate list(y) all notices which are required to be given, in each case whether written or unwrittencase, prior to the performance by the Company of all this Agreement and the consummation of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the BusinessMerger, the Acquired AssetsSecond Step Merger, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller Bank Merger and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contracttransactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Premier Bancorp Inc), Merger Agreement (Columbia Banking System, Inc.)
Material Contracts. Seller has made available to Buyer for inspection true and complete copies of all Material Agreements. Schedule 2.9 2.10 of the Disclosure Schedule Letter sets forth a complete and accurate list, in list of each case whether written or unwritten, of all of the following Contractscontracts to which any Transferred Company or its Assets are bound as of the date of this Agreement (excluding insurance policies, agreements it being understood and arrangements with respect agreed that from and after the Closing, the Transferred Companies shall cease to be insured under such policies) (collectively, the Seller:“Material Agreements”):
(a) Contracts with respect any Contract pursuant to which Seller Indebtedness of the Transferred Company has any liability or obligation involving more been incurred, other than $15,000.00, contingent or otherwiseSeller’s group wide debt facilities under which the Transferred Companies will have no obligations following the Closing;
(b) Contracts with respect any obligation to which Seller expects to receive make payments, contingent or incur costs otherwise, arising out of the prior acquisition of the Assets or services, businesses of more other Persons (other than $15,000.00 in any twelve-month periodaccounts payable constituting current liabilities);
(c) Contracts that may extend for a term any Contract containing (x) non-competition covenants or (y) other covenants restricting the current or future development, manufacture, marketing or distribution of more than one year after the Closing products and services of any Transferred Company (other than any vendor agreement than, in the case of clause (y), confidentiality, employment, management, consulting and other similar agreements entered into in the Ordinary Course of Business that and those contained in license, distribution, toll manufacturing and similar agreements, in each case which are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedulematerial);
(d) all agreements any lease, sublease or similar Contract with Suppliers with respect any Person (other than a Transferred Company) under which any Transferred Company is a lessor or sublessor of, or otherwise grants any interest to which Seller has any liability Person (other than a Transferred Company) in any Owned Property or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premiumany Leased Property;
(e) Contracts lease, sublease or similar Contract with any Person (other than a Transferred Company) under which the amount payable by Seller (A) any Transferred Company is dependent on the revenuelessee or sublessee of, income or holds or uses, any machinery, equipment, vehicle or other similar measure 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 Seller or any other PersonU.S. $50,000;
(f) distribution(A) continuing Contract for the future purchase of materials, marketingsupplies or equipment, reselleror (B) management, partnerservice, sales, agency, independent sales agency 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 referral contractswhich is not terminable by the relevant Transferred Company on 180 days (or less) notice;
(g) ContractsContract under which any Transferred Company has made any advance, instruments loan, extension of credit or capital contribution to, or other investment in, any Person (other than a Transferred Company and arrangements relating to any Indebtedness or other than extensions of trade credit in the guarantee thereofOrdinary Course of Business);
(h) Contracts and Contract granting a Lien upon any Intellectual Property or any other arrangements material Asset of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of SellerTransferred Company (other than a Permitted Lien);
(i) Contracts 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 other arrangements which place former business of any limitation on the method of conducting Transferred Company or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionspredecessor Person;
(j) Contracts Contract for the sale of any material Asset of any Transferred Company (other than inventory sales in the Ordinary Course of Business) or other arrangements which require the Seller grant of any preferential rights to deliver services on a “fixed fee” or “not to exceed” basispurchase any such material Asset;
(k) employmenthedging agreement (such as a currency exchange, severanceinterest rate exchange, consulting, deferred compensation and commodity exchange or similar agreementsContract) that will be binding on a Transferred Company after the Closing;
(l) Contracts with respect to mergers Contract for any joint venture, partnership or acquisitions, sales of securities or material assets, or investments by Sellersimilar arrangement;
(m) Contracts with Governmental EntitiesContract pursuant to which a Transferred Company is the licensee or licensor of material Intellectual Property or otherwise granted any right, including but not limited title or interest in, to or under any franchise agreement, license agreement, or right of way use agreement;material Intellectual Property; and
(n) strategic allianceContract providing for the services of any dealer, co-marketingdistributor, joint development sales representative, franchisee or similar agreements;
(o) all collective bargaining agreements representative involving the payment or Contracts receipt over the life of such Contract following the Closing in excess of U.S. $50,000 by any Transferred Company. Neither any Transferred Company nor, to the Knowledge of Seller, any other party to any Material Agreement is in material breach or default of or under any such Material Agreement, and to the Seller’s Knowledge no event has occurred that with any union;
(p) powers the lapse of attorney;
(q) agreements, Contracts, instruments, commitments, plans time or other arrangements the giving of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrationsnotice, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity both, would constitute a material breach or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation default of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties party thereto. Each Material Contract Agreement is valid, in all material respects a valid and binding obligation of each of the parties thereto and in full force and effect 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. There is no event or condition which has occurred or exists which constitutes or whichThe execution, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract delivery and performance by Seller orof this Agreement and the Ancillary Agreements to be executed and delivered by Seller or any of its Affiliates, to and the knowledge consummation of the Sellertransactions contemplated hereby and thereby by Seller and its Affiliates, do not and will not, in any other party theretomaterial respect, conflict with, result in the modification or could cause the acceleration of any obligation or loss of any rights of any party thereto cancellation of, render unenforceable, or give rise to any right of termination in respect of (with due notice or cancellation thereoflapse of time or both) any Material Agreement. To the knowledge As of the Seller, none date of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Sellerthis Agreement, no party to a any of the Material Contract intends Agreements has exercised any termination rights with respect thereto, and to terminate, accelerate, cancel or materially change the terms Knowledge of Seller no party has given notice of any material dispute with respect to any Material ContractAgreements. Seller has made available to Buyer true, correct and complete copies of all of the Material 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) any Rockwood Seller or any Affiliate of any Rockwood Seller (other than a Transferred Company) or (B) any current or former officer, employee or director of any Transferred Company, any Rockwood Seller or any Affiliate of any Rockwood Seller.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Om Group Inc), Stock Purchase Agreement (Rockwood Specialties Group Inc)
Material Contracts. Schedule 2.9 (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) Any lease providing for annual rentals of $1,000 or more;
(ii) 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 other similar contract or arrangement;
(v) Any contract relating to indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any 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 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 freedom of Seller or any predecessor to compete in any line of business or with any Person or in any area 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;
(ix) Any agreement, contract or commitment which is or relates to an agreement with or for the benefit of any affiliate of Seller; or
(x) Any other contract or commitment not made in the ordinary course of business that is material to the Business.
(b) 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 Seller Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, list of all of Contracts entered into by the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has or any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;predecessor that include deviations from such standard form agreements.
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise Each agreement, contract, plan, lease, arrangement and commitment required to be disclosed on Schedule 2.9 Section 3.11 of the Seller Disclosure Schedule is a valid and binding 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, has any event or circumstance occurred that, with notice or lapse of time or both, would constitute 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) all agreements with Suppliers with respect to which Except as set forth on Section 3.11 of the Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilityDisclosure Schedule, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope consummation of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “transactions contemplated hereby will not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, afford any other party theretothe right to terminate, modify, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to exercise any right of termination to increased or cancellation thereof. To the knowledge of the Selleraccelerated performance under, any Contract and (ii) none of the parties Contracts (A) contains a provision preventing, prohibiting or requiring any consent or notice in connection with the transfer or assignment of such Contract to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations Buyer or (B) contains a “change of any Material Contract and to control” or similar provision triggered by the knowledge consummation of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contracttransactions contemplated hereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Commercetel Corp), Asset Purchase Agreement (Commercetel Corp)
Material Contracts. Schedule 2.9 (a) Except for Company Material Contracts filed as exhibits to the Company Reports prior to the date of this Agreement or, as listed in Section 3.13(a) of the Company Disclosure Schedule sets forth a complete and accurate listLetter, in each case whether written or unwritten, of all as of the following Contractsdate of this Agreement, agreements and arrangements with respect neither the Company nor any of the Company Subsidiaries is a party to or bound by (i) any “material contract” required to be filed as an exhibit to the SellerCompany’s annual report on Form 10-K pursuant to item 601(b)(10) of Regulation S-K of the SEC or (ii) any Contract that:
(ai) Contracts is a “non-compete,” or similar agreement that restricts or purports to restrict the geographic area in which the Company or any of the Company Subsidiaries may conduct any line of business, or that requires the referral of business opportunities by the Company or any of the Company Subsidiaries that could reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole in either case, that materially interferes with respect the operation of the Company’s business as it is presently conducted;
(ii) relates to partnerships, joint ventures or similar arrangements pursuant to which Seller the Company or any of the Company Subsidiaries invests in any other Person that could reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole; or
(iii) provides for the acquisition or disposition of any assets by the Company or any of the Company Subsidiaries with a purchase price therefor in excess of $50,000,000 that has any liability or obligation involving more than $15,000.00been entered into since January 1, contingent or otherwise;2009 (all contracts of the type described in this Section 3.13(a), being referred to herein as a “Company Material Contract”).
(b) Contracts with respect to which Seller expects to receive payments, Neither the Company nor any of the Company Subsidiaries is in breach of or incur costs or services, default under the terms of more than $15,000.00 any Company Material Contract in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after material respect. To the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 knowledge of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilityCompany, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or no other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating party to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Company Material Contract is valid, binding and in full force and effect and enforceable any material respect in accordance with its terms. There is no event breach of or condition which has occurred or exists which constitutes or which, with or without notice, default under the happening terms of any event and/or the passage of time, could constitute a default or breach under any such Company Material Contract. Each Company Material Contract by Seller oris a valid and binding obligation of the Company or any Company Subsidiary which is a party thereto and, to the knowledge of the SellerCompany, any is in full force and effect; provided, however, that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other party theretosimilar Laws, now or could cause the acceleration hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of any obligation or loss specific performance and injunctive and other forms of any rights of any party thereto or give rise equitable relief may be subject to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract equitable defenses and to the knowledge discretion of the Sellercourt before which any proceeding therefor may be brought. True, no party to a correct and complete copies of each Company Material Contract intends (including all modifications and amendments thereto and waivers thereunder) have been made available to terminate, accelerate, cancel or materially change the terms of any Material ContractParent.
Appears in 2 contracts
Sources: Merger Agreement (Eastman Chemical Co), Merger Agreement (Solutia Inc)
Material Contracts. Schedule 2.9 (a) Except as disclosed in Section 3.18 of the NAPW Disclosure Schedule sets forth Schedule, and except for this Agreement, NAPW is not bound by any contract, arrangement, commitment or understanding:
(i) that constitutes a complete partnership, joint venture, technology sharing or similar agreement between NAPW and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements any other person;
(ii) with respect to the Seller:service of any directors, officers, employees, or independent contractors or consultants that are natural persons, involving the payment of $100,000 or more in any 12 month period, other than those that are terminable by NAPW on no more than 30 days’ notice without penalty;
(aiii) Contracts that limits the ability of NAPW to compete or enter into in any line of business, in any geographic area or with any 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 material to NAPW;
(vi) that provides for indemnification by NAPW to any person, other than an agreement entered into in the ordinary course of business and that is not material to NAPW;
(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 which Seller (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 obligations to pay to any person other than NAPW the deferred purchase price of property or services, (F) indebtedness secured by any Lien on any property owned by NAPW even though the obligor has not assumed or otherwise become liable for the payment thereof, or (G) any liability guaranty of any such obligations described in clauses (A) through (F) of any person other than NAPW, in each case, having an outstanding amount in excess of $250,000 individually or obligation involving more than $15,000.00, contingent or otherwise500,000 in the aggregate;
(bix) Contracts with respect that is material to which Seller expects NAPW or that contains any so called “most favored nation” provision or similar provisions requiring NAPW to receive payments, offer to a person any terms or incur costs conditions that are at least as favorable as those offered to one or services, of more than $15,000.00 in any twelve-month periodother persons;
(cx) Contracts 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 agreement which, together with any other related agreement, involves the expenditure by the NAPW of less than $100,000;
(xvi) that may extend 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 (1) year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required date hereof or involving a remaining amount payable thereunder (either to be disclosed on Schedule 2.9 or from NAPW) as of the Disclosure Scheduledate hereof, of at least $100,000;
(dxviii) all agreements with Suppliers with respect to which Seller has that involves the payment of $250,000 or more in any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;12 month period after the date hereof; or
(exix) Contracts under which that would prevent, delay or impede the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holderconsummation, or Affiliate otherwise reduce the contemplated benefits, of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right transactions contemplated by this Agreement. NAPW has previously made available to PDN or its representatives complete and accurate copies of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside each Contract of the Ordinary Course of Business;
type described in this Section 3.18(a) (r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “NAPW Material Contracts”. The Seller has furnished to ).
(b) All of the Purchaser true, complete, NAPW Material Contracts were entered into at arms’ length in the ordinary course of business and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding are valid and in full force and effect and enforceable effect, except to the extent they have previously expired in accordance with its their terms. There NAPW has not given or received a notice of cancellation or termination under any NAPW Material Contract, or has, or is alleged to have, and to the knowledge of NAPW, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act, and no event or condition exists, which has occurred or exists which constitutes or which, with or without notice, the happening lapse of any event and/or the passage of time, could time or both would constitute a default under the provisions of, any NAPW Material Contract.
(c) NAPW is not in breach of or breach 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 of NAPW, no other party to any NAPW Material Contract by Seller oris 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. Each NAPW Material Contract is a valid and binding obligation of NAPW and, to the knowledge of the SellerNAPW, any of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or could cause the acceleration other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of any obligation or loss specific performance and injunctive and other forms of any rights of any party thereto or give rise equitable relief may be subject to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract equitable defenses and to the knowledge discretion of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of court before which any Material Contractproceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Ladurini Daniel), Merger Agreement (Professional Diversity Network, Inc.)
Material Contracts. Schedule 2.9 (a) Except as set forth in Section 3.19 of the Issuer Disclosure Schedule sets forth 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 complete party to or bound by:
(i) any Contract (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 relating to any partnership, joint venture, strategic alliance, collaboration, material research and accurate listdevelopment 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 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 manufacturing of any Product or (B) that otherwise provides for the purchase or sale of products or services by Issuer or any of its Subsidiaries in excess of $100,000;
(vii) any stockholders, investors rights, registration rights, tax receivables or similar or related Contract or arrangement;
(viii) any Contract containing “most favored nation” or similar preferential pricing provisions, any exclusive dealing arrangement or any arrangement that grants any right of first refusal, first offer, first negotiation or similar preferential right;
(ix) any Contract (A) that obligates Issuer (together with its Subsidiaries) to make aggregate payments in excess of (x) $100,000 in the current or 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 of its Subsidiaries has continuing obligations or 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 material contingent payment obligations, in each case whether written that is not terminable by Issuer or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving its Subsidiaries without penalty without more than $15,000.00, contingent or otherwise60 days’ notice;
(bx) Contracts with respect to which Seller expects to receive paymentsany Lease, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(cexcept as identified on Section 3.14(b) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Issuer Disclosure Schedule;
(dxi) all agreements with Suppliers with respect to which Seller has any liability Contract that provides for indemnification of any current or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days former officer, director or less prior written notice without material liability, penalty or premiumemployee;
(exii) Contracts under which any Contract for the amount payable disposition of all or any significant 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 Seller is dependent on merger, sale of stock or assets or otherwise);
(xiii) any Contract relating to indebtedness for borrowed money, any guarantees thereof or the revenue, income granting of Liens over the property or assets of Issuer or any of its Subsidiaries;
(xiv) any Contract relating to any loan or other similar measure extension of Seller credit made by Issuer or any of its Subsidiaries;
(xv) any Contract containing any provision or covenant limiting in any material respect the ability of Issuer or 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 Person to provide products or services to Issuer or any of its Subsidiaries;
(xvi) any Contract requiring Issuer, or 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 a change of control of Issuer (a “Change of Control Payment”) or 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) or any other Person;
Contract that is material to Issuer and its Subsidiaries, taken as a whole (f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) all Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(jtype described in this Section 3.19(a) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively being referred to herein as “Material Contracts”. The Seller ).
(b) Issuer has furnished made available to Purchaser prior to the Purchaser date hereof a true, complete, correct and correct copies complete copy of all each Material Contracts. Contract.
(i) Each of the Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract Contracts is valid, binding and in full force and effect and enforceable (ii) neither Issuer nor any of its Subsidiaries, nor, to Issuer’s Knowledge, any other party to a Material Contract, has breached or violated in accordance with its terms. There is no event any material respect any provision of, or condition which has occurred taken or exists which constitutes or failed to take any act which, with or without notice, the happening of any event and/or the passage lapse of time, could or both, would constitute a breach or a default or breach under any the provisions of such Material Contract by Seller orContract, to the knowledge and neither Issuer nor any of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller its Subsidiaries has received notice that it will not fulfill its obligations thereunder has breached, violated or defaulted in all any material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of respect under any Material Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (ONCOSEC MEDICAL Inc), Stock Purchase Agreement (ONCOSEC MEDICAL Inc)
Material Contracts. Schedule 2.9 (a) Section 4.11 of the Buyer Disclosure Schedule sets forth a complete list of each of the following Contracts to which, as of the date of this Agreement, Buyer and accurate listits 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) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material Buyer Assets;
(v) 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, non-exclusive licenses granted to Buyer’s or its Subsidiaries’ customers, and non-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms;
(vi) all partnership, joint venture or other similar agreements or arrangements;
(vii) any 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 SEC in the Buyer SEC Reports;
(viii) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether written incurred, assumed, guaranteed or unwrittensecured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $5,000,000;
(ix) any agreement for the 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 date of this Agreement, of all any material business or any material amount of assets other than in the following Contracts, agreements and arrangements with respect to the Seller:ordinary course of business;
(ax) Contracts 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; and
(xi) all material agreements with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;Governmental Authority.
(b) Contracts Each Buyer Material Contract 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 Buyer, (i) neither Buyer or such Subsidiary nor, to the Knowledge of Buyer, any other party, is in breach of or default under any such Buyer Material Contract, (ii) as of the date of this Agreement, there are no material disputes with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Buyer Material Contract and to the knowledge (iii) as of the Sellerdate of this Agreement, no party to a under any Buyer Material Contract intends has given written notice of its intent to terminate, accelerate, cancel terminate or materially change the terms of any 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. Schedule 2.9 Neither the Company nor any of the Disclosure Schedule sets forth its Subsidiaries is a complete and accurate list, in each case party to or bound by any (whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:oral):
(a) Contracts employment, severance or non-competition agreements with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwiseCompany Employees;
(b) Contracts operating lease, whether as lessor or lessee, with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month periodreal property;
(c) Contracts that may extend contract, whether as licensor or licensee, for a term the license of more than one year after the Closing any patent, know-how, trademark, trade name, service ▇▇▇▇, copyright, or other intangible asset (other than any vendor agreement entered into the Ordinary Course non-negotiated licenses of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedulecommercially available computer software);
(d) all agreements with Suppliers with respect to loan or guaranty agreement, indenture, or other instrument, contract, or agreement under which Seller any money has been borrowed or loaned, which has not yet been repaid, or any liability note, bond, or obligation involving more than $15,000.00 other evidence of indebtedness has been issued and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premiumremains outstanding;
(e) Contracts under which mortgage, security agreement, conditional sales contract, capital lease, or similar agreement that effectively creates a lien on any assets of the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller Company or any of its Subsidiaries (other Personthan any conditional sales contract, capital lease, or similar agreement that creates a lien only on tangible personal property);
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contractscontract restricting the Company or any of its Subsidiaries in any material respect from engaging in business or from competing with any other parties;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereofplan of reorganization;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, partnership or Affiliate of Sellerjoint venture agreement;
(i) Contracts collective bargaining agreement or other arrangements which place agreement with any limitation on labor union or association representing the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsCompany Employees;
(j) Contracts contracts and other agreements for the sale 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 arrangements than in the ordinary course of business, except for contracts or agreements pursuant to which require the Seller to deliver services on a “fixed fee” sale or “not to exceed” basispurchase has been completed and there are no material obligations of the Company remaining;
(k) employmentmaterial warehousing, severancedistributorship, consultingrepresentative, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitionsmarketing, sales of securities agency or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar advertising agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Diker Charles M), Merger Agreement (Cantel Medical Corp)
Material Contracts. Schedule 2.9 (a) Except for this Agreement, agreements filed as exhibits to the Company SEC Documents or as set forth in Section 3.21 of the Company Disclosure Schedule sets forth a complete and accurate listSchedules, in each case whether written or unwritten, of all as of the following Contractsdate of this Agreement, agreements and arrangements with respect neither the Company nor any of its Subsidiaries is a party to the Selleror expressly bound by any Contract (excluding any Company Benefit Plan) that:
(ai) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwisewould constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act);
(bii) Contracts with respect is a Company Real Property Lease pursuant to which Seller expects the Company or any of its Subsidiaries leases real property that is material to receive paymentsthe 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 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 “requirements” or similar agreement under which the Company or any of its Subsidiaries has agreed to procure goods or services exclusively from any Person, or incur costs (C) that are not material to the business of the Company 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 Company and its Subsidiaries;
(v) provides for the formation, creation, operation, management or servicescontrol of any joint venture, partnership or other similar arrangement with a third party;
(vi) 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 $15,000.00 in 20 million after the date of this Agreement or that contains material restrictions on the business and operations of the Company or any twelve-month periodof its Subsidiaries;
(cviii) Contracts provides for the acquisition or disposition by the Company or any of its Subsidiaries of any business (whether by merger, sale of stock, sale of assets or otherwise), or any real property, that may extend would, in each case, reasonably be expected to result in the receipt or making by the Company or any Subsidiary of the Company of future payments 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 in excess of $50 million;
(xi) provides for the procurement of services or supplies from a term Company Top Supplier by the Company or any of more than one year after its Subsidiaries, or provides for sales to a Company Top Customer by the Closing Company or any of its Subsidiaries;
(xii) 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) other than any vendor agreement sales and marketing Contracts entered into the Ordinary Course of Business that are not Business, is a Contract pursuant to which the Company or any of its Subsidiaries is a party, or is otherwise required bound, and the contracting counterparty of which (A) is a Governmental Entity or (B) to be disclosed on Schedule 2.9 the Knowledge of the Disclosure Schedule;Company, has entered into such Contract in its capacity as a prime contractor or other subcontractor of any Contract with a Governmental Entity and such Contract imposes upon the Company obligations or other liabilities due to such Governmental Entity; or
(dxiv) all agreements with Suppliers is a Contract pursuant to which (A) the Company or any of its Subsidiaries is granted any license or other right with respect to which Seller has Intellectual Property of another Person, where such Contract is material to the business of the Company or any liability of 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 obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30B) days the Company or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income any of its Subsidiaries grants to another Person any license or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating right with respect to any Indebtedness or material Company Intellectual Property. Each Contract of the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
type described in clauses (i) Contracts or other arrangements which place any limitation on the method – (xiv) of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(jthis Section 3.21(a) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively is referred to herein as a “Company Material ContractsContract.”. The Seller has furnished
(b) True, correct and complete copies of each Company Material Contract have been publicly filed with the SEC prior to the Purchaser true, complete, and correct copies date of all Material Contractsthis Agreement or otherwise made available to Parent. Each Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract sets forth where such breach or default would reasonably be expected to have, individually or in the entire agreement and understanding between aggregate, a Company Material Adverse Effect. To the Seller and Knowledge of the Company, as of the date of this Agreement, no other parties thereto. Each party to any Company Material Contract is validin 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 obligation of the Company or the Subsidiary of the Company that is party thereto and, to the Knowledge of the Company, of each other party thereto, and is in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or whicheffect, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, subject to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractEnforceability Exceptions.
Appears in 2 contracts
Sources: Merger Agreement (Canadian National Railway Co), Merger Agreement (Kansas City Southern)
Material Contracts. Schedule 2.9 (a) Except for this Agreement or as set forth in Section 3.17 of the Company Disclosure Schedule sets 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 complete “Company Material Contract”):
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC, other than those agreements and accurate listarrangements described in Item 601(b)(10)(iii);
(ii) any Contract with a related person (as defined in Item 404 of Regulation S-K of the Securities Act) that would be required to be disclosed in the Company SEC Reports but has not been disclosed;
(iii) any Contract that 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 any Governmental Authority pursuant to which the Company or a Company Subsidiary will be required after the date of this Agreement to pay any material monetary obligations;
(vi) any Contract between the Company or any Company Subsidiary, on the one hand, and any third Person, on the 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 between the Company or any Company Subsidiary and a third Person (A) relating to the disposition of any assets or business of the Company and the Company Subsidiaries with a fair market value in excess of $50,000 or (B) relating to the acquisition of any assets or 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 written by merger, sale of stock or unwrittenassets or otherwise, of all and that contains continuing indemnities or other material obligations or any continuing “earn-out” or other contingent payment obligation on the part of the following ContractsCompany or any Company Subsidiary;
(viii) any Contract between the Company or any Company Subsidiary and any third Person that establishes a joint venture, partnership or limited liability company;
(ix) 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 and arrangements with respect employees or independent contractors) pursuant to the Seller:
which (a) Contracts both (i) the Company or any Company Subsidiary is granted a license to, including any covenant not to sue under, any material Intellectual Property Right owned by any third party that is necessary for or used 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 covenant not to sue under, any material Company Intellectual Property and (ii) that requires by its terms or is reasonably expected to 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 fiscal year ending December 31, 2024;
(xii) any CBAs;
(xiii) any Contract with respect to which Seller has any liability or obligation involving supplier that involved the payment of more than $15,000.0050,000 in the Company’s last fiscal year;
(xiv) any material Contract with any university or other academic institution, contingent research center, international organization or otherwiseGovernmental Authority having an expected value in excess of $50,000 in the fiscal year ending December 31, 2024, or in any single 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 that indemnifies any director or executive officer of the Company or any Company Subsidiary (other than any 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 Contract that requires any capital commitment or capital expenditure (or series of capital expenditures) by the Company or any Company Subsidiary after the date hereof in an amount in excess of $50,000 in the aggregate.
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, Each of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Company Material Contract is valid, binding and in full force and effect effect, and represents a valid and binding obligation of the Company or a Company Subsidiary, enforceable in accordance with its termsterms against the Company or the Company Subsidiary (as the case may be) and, to the Knowledge of the Company, any other 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). There Neither the Company nor any Company Subsidiary is no event in material breach of or condition which has occurred or exists which constitutes or whichdefault, with or without notice, the happening lapse of any event and/or the passage of timetime or both, could constitute a default or breach under any such Company Material Contract by Seller orContract, nor, to the knowledge of the SellerCompany’s Knowledge, is any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any such Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (NeuroMetrix, Inc.), Merger Agreement (electroCore, Inc.)
Material Contracts. (a) Schedule 2.9 3.21(a) of the Company Disclosure Schedule sets forth Letter contains a true and complete list of each Material Contract (other than any Employee Plan) in effect or with any outstanding obligations or liabilities thereunder (other than customary surviving confidentiality and accurate listindemnity 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 the following Contracts to which the Company or any of its Subsidiaries is a party or by which such Person is, or any of its properties or assets are, bound, including all amendments, modifications, supplements, waivers, extensions and renewals thereof:
(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 providing for any partnership, joint 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 manufacturing of any Company Product, or (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 current or former employees, vendors, service providers or independent contractors);
(iv) any Contract (excluding (1) nondisclosure agreements, proprietary information assignment agreements with Employees of the Company or any of its Subsidiaries, agreements with consultants and Service Providers, in each case whether written on the Company’s or unwrittenits Subsidiaries’ form agreements made available to Parent, of all of the following Contracts, agreements (2) Ordinary Course Licenses and arrangements with respect to the Seller:
(a3) Contracts with respect licenses for commercial off-the-shelf computer Software that are generally available on nondiscriminatory pricing terms) pursuant to which Seller has the Company or any liability of its Subsidiaries (A) obtains any right to Exploit, or obligation involving more than $15,000.00a covenant not to be sued under, contingent any Intellectual Property Right or otherwise(B) grants any right to Exploit, or a covenant not to be sued under, any Company Intellectual Property Right;
(bv) Contracts any Contract with respect any Governmental Authority;
(vi) any Contract (A) with sole-source or single-source suppliers of material tangible products or services or pursuant to which Seller expects the Company or any of its Subsidiaries has agreed to receive paymentspurchase 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 incur costs (B) that is with any Person which is a supplier to the Company, or servicesany of its Affiliates, or any of more than $15,000.00 in its or their contract manufacturers (regardless of tier) of (x) material tangible products or services relating to any twelve-month period;
Company Product, or (cy) Contracts that may extend for a term of more than one year after the Closing other than products or services relating to any vendor agreement entered into the Ordinary Course of Business Company Product that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedulereadily commercially available from another source for a substantially similar cost with substantially similar quality;
(dvii) all agreements any stockholders’, investor rights, registration rights, or similar Contract, or any Contract relating to the exercise of any voting rights in respect of any Company Securities;
(viii) any Contract containing “most favored nation” or similar preferential pricing provisions, any exclusive dealing arrangement or any arrangement that grants any right of first refusal, first offer, first negotiation or similar preferential right;
(ix) any Contract that obligates the Company (together with Suppliers its Subsidiaries) to make aggregate payments in excess of (A) $350,000 in the current or any future calendar year or (B) $1,000,000 in the aggregate;
(x) any Contract with respect 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 the Company or any of its Subsidiaries 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 liability of its Subsidiaries or obligation involving more than $15,000.00 and any other material contingent payment obligations or interests, in each case that is not terminable by Seller on thirty (30) days the Company or less prior written notice its Subsidiaries without material liability, penalty or premiumwithout more than 60 days’ notice;
(exiii) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other PersonLease;
(fxiv) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contractsany Contract that provides for indemnification of any current or former Service Provider;
(gxv) Contractsany Contract relating to indebtedness for borrowed money any guarantees thereof or the granting of Liens over the property or assets of the Company or any of its Subsidiaries, instruments and arrangements other than Permitted Liens;
(xvi) any Contract relating to any Indebtedness loan or other extension of credit made by the guarantee thereofCompany or any of its Subsidiaries (other than to the Company or any of its Subsidiaries, and other than investments in marketable securities or advances to Service Providers in the ordinary course of business);
(hxvii) Contracts and any Contract containing any provision or covenant limiting in any material respect the ability of the 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) Exploit any products or services of or to any other arrangements Person or in any geographic region, (B) engage in any line of Seller business or (C) compete with or to obtain products or services from any officer, director, manager, stockholder, equity holderPerson, or Affiliate limiting the ability of Sellerany 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);
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(sxviii) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cablesContract requiring the Company, or any other Seller owned successor thereto or controlled facilities acquirer thereof, to make any payment, whether on the account of severance or equipment otherwise, to another Person as a result of a change of control of the Company, or that gives a Third Party a right to receive or elect to receive any such entity’s poles or conduits (“Pole Attachment Agreements”)payment; and
(txix) other agreements or Contracts which are any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K).
(b) The Company has made available to the Business, the Acquired Assets, or the Seller, or which Parent a reasonable purchaser would consider important in deciding whether or true and complete copy of each Material Contract. Except as has not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenseshad, and all IP Licenses are sometimes collectively referred would not reasonably be expected to herein as “have a Company Material Contracts”. The Seller has furnished to Adverse Effect, each of the Purchaser true, complete, Material Contracts and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract Unscheduled Contracts is valid, binding and in full force and effect and is enforceable in accordance with its termsterms by the Company or its applicable Subsidiary party thereto, subject to the Enforceability Exceptions. There is no event Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any other party to a Material Contract or condition which an Unscheduled Contract has occurred breached or exists which constitutes violated in any material respect any provision of, or taken or failed to take any act which, with or without notice, the happening lapse of any event and/or the passage of timetime or both, could would constitute a material breach or default under the provisions of such Material Contract or breach Unscheduled Contract, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted in any material respect under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Unscheduled Contract.
Appears in 2 contracts
Sources: Merger Agreement (Astria Therapeutics, Inc.), Merger Agreement (Biocryst Pharmaceuticals Inc)
Material Contracts. Schedule 2.9 (a) Except for those agreements and other documents filed as exhibits or incorporated by reference to Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011 or filed or incorporated in any of its other Company SEC Reports filed since March 16, 2012 and prior to the date hereof or as Previously Disclosed, neither Company 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) that is a “material contract” within the meaning of Item 601(b)(10) of the Disclosure Schedule sets forth SEC’s Regulation S-K; (ii) that contains a complete non-compete or client or customer non-solicit requirement or any other provisions that restricts the conduct of, or the manner of conducting, any line of business of Company or any of its affiliates (or, upon consummation of the Merger, of Purchaser or any of its affiliates); (iii) that obligates Company or any of its affiliates (or, upon consummation of the Merger, Purchaser or any of its affiliates) to conduct business with any third party on an exclusive or preferential basis; (iv) that requires referrals of business or requires Company or any of its affiliates to make available investment opportunities to any person on a priority or exclusive basis; (v) that relates to the incurrence of indebtedness by Company or any of its Subsidiaries (other than deposit liabilities, trade payables, federal funds purchased, advances and accurate listloans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case whether written or unwrittenincurred in the ordinary course of business consistent with past practice) including any sale and leaseback transactions, of all of the following Contracts, agreements capitalized leases and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or financing transactions; (vi) that grants any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, right of first offer or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts right with respect to mergers or acquisitions, sales of securities or any material assets, rights or properties of Company or any of its Subsidiaries; (vii) that limits the payment of dividends by Company or any of its Subsidiaries; (viii) that relates to a material joint venture, partnership, limited liability company agreement or other similar agreement or arrangement with any third party, or to the formation, creation or operation, management or control of any material partnership or joint venture with any third parties, except in each case that relate to merchant banking investments by Seller;
the Company or its Subsidiaries in the ordinary course of business; (mix) Contracts with Governmental Entitiesthat relates to an acquisition, including but not limited to any franchise agreementdivestiture, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development merger or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreementstransaction and which contains representations, Contractscovenants, instruments, commitments, plans indemnities or other arrangements of Seller outside of the Ordinary Course of Business;
obligations (r) agreementsincluding indemnification, licenses, permits, registrations, “earn-out” or other approvals with any Governmental Entity;
contingent obligations) that are still in effect; (sx) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, provides for payments to be made by Company or any of its Subsidiaries upon a change in control thereof; (xi) that is a consulting agreement or data processing, software programming or licensing contract involving the payment of more than $200,000 per annum (other Seller owned than any such contracts which are terminable by Company or controlled facilities any of its Subsidiaries on 60 days or equipment to such entity’s poles less notice without any required payment or conduits (“Pole Attachment Agreements”other conditions, other than the condition of notice); and
(txii) other agreements that grants to a person any right in Company Owned Intellectual Property or Contracts which are grants to Company or any of its Subsidiaries a license to Company Licensed Intellectual Property (excluding licenses to shrink-wrap or click-wrap software), in each case that involves the payment or more than $200,000 per annum or is material to the Businessconduct of the businesses of the Company; (xiii) to which any affiliate, the Acquired Assetsofficer, director, employee or consultant of such party 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 Seller, ordinary course of business and in accordance with all applicable regulatory requirements with respect to it); or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets (xiv) that is otherwise material to the extent not already listed and disclosed pursuant Company or any Significant Subsidiary of the Company or their financial condition or results of operations. Company has Previously Disclosed or made available to Purchaser prior to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser date hereof true, complete, correct and correct complete copies of all each Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Contract.
(i) Each Material Contract is valida valid and legally binding agreement of Company or one of its Subsidiaries, binding and in full force and effect and as applicable, and, to the Knowledge of Company, the counterparty or counterparties thereto, is enforceable in accordance with its terms. There terms (subject to the Bankruptcy and Equity Exception) and is in full force and effect, (ii) Company and each of its Subsidiaries has duly performed all material obligations required to be performed by it prior to the date hereof under each Material Contract, (iii) neither Company nor any of its Subsidiaries, and, to the Knowledge of Company, any counterparty or counterparties, is in breach of any provision of any Material Contract, and (iv) no event or condition which has occurred exists that constitutes, after notice or exists which constitutes lapse of time or whichboth, with will constitute, a breach, violation or without notice, default on the happening part of Company or any event and/or the passage of time, could constitute a default or breach its Subsidiaries under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of provide any party thereto or give rise with the right to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any terminate such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Hilltop Holdings Inc.), Merger Agreement (Plainscapital Corp)
Material Contracts. Schedule 2.9 of the Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Section 2.8(a) of the Seller Disclosure Letter lists, as of the date hereof, the following Contracts with respect primarily related to or otherwise material to the operation of the Business to which Seller has Sellers or any liability of their Controlled Affiliates is a party and which have not been entirely fulfilled or obligation involving more than $15,000.00performed as of the date hereof, contingent or otherwise;
except for (bv) this Agreement, (w) any Benefit Plan, (x) Divided Commingled Contracts, (y) Contracts with respect related to which Seller expects services to receive paymentsbe performed under the Transitional Services Agreement and (z) any purchase orders, invoices or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) other similar Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into or received in the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of (collectively, the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) “Material Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;”):
(i) Contracts any Contract 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 arrangements which place similar Contract memorializing any limitation on the method of conducting joint venture or scope of partnership between the Business includingand a third party;
(iii) any Contract relating to the acquisition or disposition of any business, without limitationcapital stock or other equity securities or assets of any Person (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 agreement continuing obligation;
(iv) 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 any exclusivity, non-competition, non-solicitation, no-hireexclusivity obligations, right of first refusalrefusal or right of first offer, most favored nation obligations, “take or pay” obligations, or “most favored nation” provisionsnon-competition obligations or restrictions binding on the Business;
(jvi) Contracts any Contract containing covenants that (A) restrict or other arrangements which require purport to restrict the Seller 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 deliver services on a “fixed fee” limit the freedom of any the Business (or “not any of the owners thereof or their respective Affiliates) to exceed” basisengage in any line of business, compete with any Person or operate in any geographic areas or markets;
(kvii) employment, severance, consulting, deferred compensation and similar agreements;
any Contract (lA) Contracts with respect pursuant to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, which the Business receives from a third party a license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements 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 licenses of Seller outside uncustomized software that is commercially available to the public generally, with aggregate fees of $250,000 or 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 which material Transferred Intellectual Property is licensed to a third party other than non-exclusive licenses granted in the Ordinary Course of Business in connection with the sale or licensing of products or services of the Business;
(rviii) agreements, licenses, permits, registrations, or other approvals with any Governmental EntityLabor Agreement covering any Business Employees;
(six) any agreements with any Governmental Entity Contract pursuant to which the Business receives the services of independent contractors or other non-governmental entity employee service providers;
(x) any Contract that owns grants a Lien (other than a Permitted Lien) on any material Transferred Asset or controls material property or asset of the Transferred Subsidiaries that is not an Excluded Asset;
(xi) any utility polesContract with a Key Customer or Key Supplier;
(xii) any Government Contract where the counterparty is a Governmental Authority and for which (x) the period of performance has not expired or terminated or (y) final payment has not yet been received as of the date hereof;
(xiii) any Contract relating to the settlement or conciliation of any Litigation (A) since April 1, conduits2021 and providing for payment by the Business in excess of $500,000 or (B) pursuant to which the Business will have any outstanding obligation after the date hereof;
(xiv) any Contract pursuant to which any third party sales representative or other third party representative (a “Third Party”) is appointed to promote and solicit offers for the purchase of products and services of the Business or the Transferred Subsidiaries in any territory outside of the United States (each, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (a “Pole Attachment AgreementsForeign Sales Representative Agreement”);
(xv) any Affiliate Contract; and
(txvi) other agreements any Lease, any Landlord Lease and any agreement or Contracts which are material to instrument for the Businesspurchase, the Acquired Assetssale, transfer or the Seller, encumbrance of any real property or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten)interest therein, including all amendments or modifications thereto, all the Owned Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Property.
(i) Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event a valid and binding agreement of a Transferred Subsidiary, Sellers or condition which has occurred their Affiliates, as applicable, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or exists which constitutes other Laws affecting the enforcement of creditors’ rights generally, (ii) neither a Transferred Subsidiary, Sellers or whichtheir Affiliates, with or without noticeas applicable, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller ornor, to the knowledge Knowledge of the SellerSellers, any other party theretothereto is in default or breach 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, any such Material Contract, and (iii) no event or could circumstance has occurred that, with notice or lapse of 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 rights 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 to the Business, taken as a whole. To the Knowledge of Sellers, neither Sellers nor any of their Controlled Affiliates have received any written notice of the intention of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of terminate any Material Contract. Prior to the date hereof, Sellers have made available to Buyer true, correct and complete copies of the 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. Schedule 2.9 of the Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Except for the Contracts disclosed in the applicable subsection of Section 2.6 of the Seller Disclosure Letter (which is arranged in subsections to correspond to the subsections of this Section 2.6) and Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00employees, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive paymentsconsultants, or incur costs or servicesadvisors, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 as of the Disclosure Schedule;
date hereof, there are no Contracts relating (dwhether solely or in part) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 the operation and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilityconduct of the Business, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenuedevelopment, income manufacture, commercialization, or other similar measure exploitation of Seller any Acquired Molecule or Acquired Product, or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or of the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;Transferred Assets that constitute:
(i) Contracts any joint venture, partnership, limited liability company or other similar agreements or arrangements which place (providing for joint research, development or marketing of any limitation on the method of conducting or scope of the Business includingProducts);
(ii) any agreement or series of related agreements, without limitationincluding any option agreement, relating to the acquisition or disposition of any business or assets of any other Person or any material real property (whether by merger, sale of stock, sale of assets or otherwise related to the Business);
(iii) any agreement that (A) materially limits the freedom of Seller or its Affiliates to operate the Business or with any Person or in any area or that would so limit the freedom of Buyer or its Affiliates after the Closing (other than customary exclusive distribution agreements for the Products), (B) contains material exclusivity obligations or restrictions binding on Seller or the Selling Affiliates or that would be binding on Buyer or any of its Affiliates after the Closing, (C) contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, right of first negotiation or right of first offer in favor of a party other than Sellers; or (D) otherwise restricts the research, development, manufacture, marketing, distribution, sale, supply, license or marketing of the products and services of Seller or that either Seller or any Selling Affiliate develops;
(iv) any agreement or series of related agreements for the purchase of materials, supplies, goods, services, equipment or other assets related to the Business that is reasonably expected to involve annual payments on the part of Seller or the Selling Affiliates in excess of $[**] from and after the Closing;
(v) any sales, distribution, agency or other similar agreement providing for the sale by the Business of Products, materials, supplies, goods, services, equipment or other assets that is reasonably expected to involve annual payments to Seller or the Selling Affiliates from and after the Closing over the remaining term of the agreement of $[**];
(vi) any agreement under which the Business has (A) granted a Lien on any material Transferred Asset, other than a Lien that will be released as of the Closing or (B) provided for the sale of any material Transferred Asset, or granted any preferential rights to purchase any material Transferred Asset, in each case outside the ordinary course of business;
(vii) any agreement providing any person or entity with pricing, discounts, or benefits that change based on the pricing, discounts, or benefits offered to other Third Parties, including any agreement containing “most favored nation” provisions”;
(jviii) Contracts any agreement in which either Seller has agreed to purchase a minimum quantity of goods or other arrangements which require the Seller services or has agreed to deliver purchase goods or services on exclusively from a “fixed fee” or “not to exceed” basiscertain party;
(kix) employmentany agreement providing for any royalty, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assetsmilestone, or investments similar payments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of the Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)Selling Affiliates; and
(tx) other agreements or any agreement between either Seller and a governmental authority.
(b) Section 2.6(b) of the Seller Disclosure Letter sets forth a true and complete list of all Contracts which are material relating solely to the operation and conduct of the Business, to the development, manufacture, commercialization, or other exploitation of any Acquired Molecule or Acquired Product, or to any of the Transferred Assets, in each case, as currently conducted. For the avoidance of doubt, such list does not include any Excluded Asset listed in clauses (i) through (xv) of Annex 9.1(b) attached hereto, any Shared Contract, or any Contracts with employees, consultants, or advisors, even if related to the operation and conduct of the Business as currently conducted, and includes Contracts that are no longer in effect.
(c) Section 9.1(b)(vi) of the Seller Disclosure Letter sets forth a true and complete list of all Shared Contracts.
(d) Seller has made available to Buyer true, correct, and complete copies of each of the Transferred Contracts and Shared Contracts.
(e) Each agreement, commitment, arrangement or plan disclosed in the Seller Disclosure Letter pursuant to this Section 2.6 (Material Contracts) or Section 2.9 (Intellectual Property) (each, a “Material Contract”) is a valid and binding agreement of Seller or the SellerSelling Affiliate thereto (subject to the effects of applicable bankruptcy, insolvency, fraudulent conveyance, or which a reasonable purchaser would consider important other Laws relating to or affecting creditors’ rights generally and to general principles of equity, whether considered at law or in deciding whether or not to acquire the Acquired Assets to the extent not already listed equity) and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect effect, and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, neither Seller nor any of the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller Selling Affiliates or, to the knowledge Knowledge of the Seller, any other party theretothereto is in default or breach in any material respect under (or is alleged to be in default or breach in any material respect under) the terms of, or could has provided or received any notice of any intention to terminate, any such Material Contract, and, to the Knowledge of Seller, no event or circumstance has occurred since December 31, 2024 that, with notice or lapse of 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 rights of any party thereto benefit thereunder that has not been cured or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contractwaived.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Q32 Bio Inc.), Asset Purchase Agreement (Akebia Therapeutics, Inc.)
Material Contracts. Schedule 2.9 (i) Except for Contracts (including all amendments and modifications thereto) filed as exhibits to the Company Reports as of the Disclosure Schedule sets date of this Agreement, any Benefit Plan, or as set forth a complete and accurate list, in each case whether written or unwritten, of all Section 5.1(k)(i) of the following ContractsCompany Disclosure Schedule, agreements as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a 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 arrangements with respect all amendments and modifications thereto filed or required to be filed as exhibits to the Seller:Company Reports, being hereinafter referred to as a “Material Contract”):
(aA) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwisethat is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(bB) Contracts with respect that contains any (x) noncompete or exclusivity provisions to which Seller expects 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 receive payments, or incur costs or services, of more than $15,000.00 compete in any twelve-month periodline 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 entered into in the ordinary course of business);
(cC) Contracts that may extend provides for a term 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 more than one year 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 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 Closing other than 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 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 agreement 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 ordinary course of Business that are not otherwise business).
(ii) The Company has made available to Parent prior to the date of this Agreement accurate and complete copies of all written Material Contracts required to be disclosed on Schedule 2.9 identified in Section 5.1(k)(i) of the Company Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leasesas in effect as of the date of this Agreement.
(iii) As of the date of this Agreement, FCC Licensesexcept as has not had, and all IP Licenses are sometimes collectively referred would not reasonably be expected to herein as “have, individually or in the aggregate, a Material Contracts”. The Seller has furnished to the Purchaser trueAdverse Effect, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each each Material Contract is valida valid and binding agreement of the Company or any of its Subsidiaries party thereto, binding and in full force and effect and 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). There 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 no event (or condition which has occurred or exists which constitutes or which, with or without notice, the happening notice or lapse of any event and/or the passage of time, could constitute a 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 Seller or, to the knowledge of the Seller, any other party thereto, or could cause to the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge Knowledge of the SellerCompany, none as of the parties date of this Agreement) that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) constitute such a violation or breach, (B) give any Person the right to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations accelerate the maturity or performance of any Material Contract and or (C) give any Person the right to cancel, terminate or modify in a manner adverse to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of Company any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Cornerstone Building Brands, Inc.)
Material Contracts. Schedule 2.9 (a) Section 4.13 of the Parent Disclosure Schedule Letter sets forth a complete and accurate list, in list of each case whether written or unwritten, of all of the following ContractsContracts to which, as of the date of this Agreement, the Parent Entities or any of their respective Subsidiaries is a party (each, a “Parent 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 the Seller:Parent);
(aii) each Contract (A) not to (or otherwise restricting or limiting the ability of the Parent Entities or any of their respective Subsidiaries to) compete in any line of business or geographic area or (B) to restrict the ability of the Parent Entities or any of their respective Subsidiaries to conduct business in any geographic area;
(iii) each Contract (other than any Parent Benefit Plan) providing for or resulting in payments by the Parent Entities or any of their respective Subsidiaries that exceeded $250,000 in the calendar year ended December 31, 2020;
(iv) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material Parent Assets;
(v) all material Contracts for the granting or receiving of a license, sublicense or franchise (in each case, including any such Contracts relating to any Intellectual Property) or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment;
(vi) all partnership, joint venture or other similar agreements or arrangements;
(vii) any agreement with respect any director, officer or shareholder of Parent or any Subsidiary that is required to be described under Item 404 of Regulation S-K of the SEC in the Parent SEC Reports;
(viii) 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 $1,000,000;
(ix) any agreement for the disposition or acquisition by the Parent Entities or any of their respective Subsidiaries, with material obligations of the Parent Entities or any of their respective Subsidiaries (other than confidentiality obligations) remaining to be performed or material liabilities of the Parent Entities or any of their respective Subsidiaries continuing after the date of this Agreement, of any material business or any material amount of assets other than in the ordinary course of business;
(x) any agreement restricting or limiting the payment of dividends or the making of distributions to shareholders, including intercompany dividends or distributions other than such restrictions or limitations that are required by applicable Law;
(xi) any Contract in which Seller any Parent Entity or any of their respective Subsidiaries has licensed any liability Parent Owned Intellectual Property to any other Person or obligation involving more has licensed any other Person’s Intellectual Property rights, other than non-exclusive licenses (x) entered into in the ordinary course of business with aggregate payments of less than $15,000.00200,000 or (y) for commercially available shrink wrap or off the shelf software;
(xii) any Contract for the development of Intellectual Property, contingent or otherwise;other than those entered into in the ordinary course of business with Parent employees and contractors on the Parent’s standard form for such Contracts; and
(xiii) to the extent not set forth in Section 4.13(a) of the Parent Disclosure Letter pursuant to another subsection of this Section 4.13(a), all material agreements with any Governmental Authority.
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, A true and complete copy of more than $15,000.00 in each Parent Material Contract (including any twelve-month period;
(camendments thereto) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into prior to the Ordinary Course date of Business that are not otherwise required this Agreement has been filed as an exhibit (by reference or otherwise) to the Parent Annual Report on Form 10-K for the fiscal year ended December 31, 2020 filed with the SEC on March 3, 2021 or disclosed by Parent in a subsequent Parent SEC Report or made available to the Company prior to the date of this Agreement. Each Parent Material Contract is a valid and binding agreement of Parent or its applicable Subsidiary, except where the failure to be disclosed on Schedule 2.9 of valid and binding would not, individually or in the Disclosure Schedule;
(d) all agreements with Suppliers with respect aggregate, reasonably be expected to which Seller has any liability have a Parent Material Adverse Effect. Except as would not, individually or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilityin the aggregate, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenuereasonably be expected to have a Parent Material Adverse Effect, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts neither Parent or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orSubsidiary nor, to the knowledge Knowledge of the SellerParent, any other party thereto, is in breach of or could cause default under any such Parent Material Contract, (ii) as of the acceleration date of any obligation or loss of any rights of any party thereto or give rise this Agreement, there are no material disputes with respect to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any such Parent Material Contract and to the knowledge (iii) as of the Sellerdate of this Agreement, no party to a under any Parent Material Contract intends has given written notice of its intent to terminate, accelerate, cancel terminate or materially change the terms of any otherwise seek a material amendment to such Parent Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Ikonics Corp), Merger Agreement (Ikonics Corp)
Material Contracts. Schedule 2.9 of the Disclosure Schedule sets forth a complete and accurate list, in 2.5 lists each case whether written or unwritten, of all of the following Contracts, agreements and arrangements Contract to which Seller (with respect to the Seller:
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) Contracts 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 pay an amount of $250,000 or more in the aggregate, (e) has an 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 which 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 has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects the Business) or Company, (j) grants a power of attorney, agency or similar authority to receive paymentsanother person or entity, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(ck) Contracts that may extend for contains a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts 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 mergers which there will be material losses or acquisitionswill 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), sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development is an offshore production contract or similar agreements;
(o) all collective bargaining agreements or was not made in the ordinary course of business (each of which, together with each Contracts with relating to any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course Intangible Property listed on Schedule 2.7, being a "Material Contract"). True copies of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten)each Material Contract, including all amendments or modifications and supplements thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred have been made available to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties theretoBuyer. Each Material Contract is validvalid and subsisting; Seller or Company, binding 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 in full force and effect and enforceable in accordance no material breach or default, alleged material breach or default, or event which would (with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could notice or both) constitute a material breach or default or breach under any such Material Contract thereunder by Seller or Company or, to the best knowledge of the SellerSeller and Company, any other party or obligor with respect thereto, has occurred or could cause as a result of this Agreement or performance thereof will occur. The consummation of the acceleration of transactions contemplated by this Agreement will not (and will not give any person a right to) terminate or modify any rights of, or accelerate or augment any obligation of, Seller or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of Company under any Material Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Watkins Johnson Co), Stock Purchase Agreement (General Inspection Laboratories Inc)
Material Contracts. (a) Schedule 2.9 3.14(a) of the Disclosure Schedule sets forth a complete and accurate list, in lists each case whether written or unwritten, of all following Contract (x) by which any of the following ContractsPurchased Assets is bound or affected or (y) to which Seller, agreements or its applicable Affiliate, is a party and arrangements is used with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;Purchased Assets:
(i) Contracts any Contract involving aggregate consideration in excess of $1,000,000 or other arrangements which place requiring performance by any limitation on party more than one (1) year from the method date hereof;
(ii) any Contract that relates to the sale, license or lease of conducting or scope any of the Purchased Assets;
(iii) any Contract with (A) any Business including, without limitation, Customer or (B) any agreement that contains Business Supplier;
(iv) any exclusivity, Contract providing for any non-competition, non-solicitation, noexclusive 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-hirefixing, “most favored nation”, pricing limitations, required discounts, rights of first refusal, right of first refusaloffer, market or “most favored nation” provisionscustomer sharing, exclusivity or market classification;
(jv) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basisany Labor Agreement;
(kvi) employment, severance, consulting, deferred compensation and similar agreementsany Contract with an Identified Employee;
(lvii) Contracts any Contract not executed in the ordinary course of business, not consistent with respect to mergers fair market terms, conditions and prices or acquisitions, sales of securities with applicable Laws or material assets, or investments by Sellerotherwise not made on arm’s length terms and conditions;
(mviii) Contracts with Governmental Entitiesany Contract in which Seller has agreed to purchase, including but not limited to any franchise agreement“take or pay,” minimum commitments, license agreement, volume requirements or right similar obligations or supply a minimum quantity of way use agreementgoods or services;
(nix) strategic allianceany Contract with an uncapped guaranty, co-marketing, joint development liability or similar agreements;
(o) all collective bargaining agreements or Contracts with indemnification for any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of product related to the Ordinary Course of Business;
(rx) agreements, licenses, permits, registrations, or other approvals with any Governmental EntityGovernment Contract;
(sxi) any agreements with Contract that could prohibit or delay the consummation of the transactions contemplated hereby;
(xii) any Governmental Entity or non-governmental entity that owns or controls Contract relating to any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)Assumed Liability; and
(txiii) any Contract between or among Seller or any of its Affiliates on the one hand and any Affiliate of Seller on the other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing hand.
(whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The b) Seller has furnished performed in all material respects all obligations required to the Purchaser true, complete, be performed by it and correct copies is not in default under or in breach of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and nor in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening receipt of any event and/or the passage claim of time, could constitute a default or breach under any such Material Contract Contract, and no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by Seller or, to the knowledge Knowledge of the Seller, any other party thereto, or could cause the acceleration of under any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereofsuch Material Contract. To the knowledge Knowledge of the Seller, none of the parties each other party to any Material each such Contract have informed Seller that it will not fulfill its obligations thereunder has performed in all material respectsrespects all obligations required to be performed by it under such Contract. There are no pending renegotiations of any Each Material Contract (i) is legal, valid, binding and enforceable against Seller and, to the knowledge Knowledge of the Seller, no against each other party to such Contract and (ii) will continue to be legal, valid, binding and enforceable on identical terms as of immediately after the Closing. Purchaser has been supplied with a Material Contract intends to terminate, accelerate, cancel or materially change the terms correct and complete copy of any each Material Contract, together with all amendments, 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. Schedule 2.9 (a) All Contracts required to be filed as exhibits to the AmSurg SEC Documents have been so filed in a timely manner. Section 3.16(a) of the AmSurg Disclosure Schedule sets forth a true and complete and accurate list, in each case whether written or unwrittenas of the date hereof, of all each of the following ContractsContracts to which AmSurg or any of its Subsidiaries is a party or by which AmSurg or any of its Subsidiaries or any of their assets or businesses are bound (and any amendments, agreements supplements and arrangements with respect to the Seller:modifications thereto):
(ai) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwiseContract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(bii) Contracts with respect 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 which Seller expects to receive payments, compete or incur costs or services, of more than $15,000.00 provide services in any twelve-month periodline of business or with any Person or in any geographic area or market segment or to engage in any type of business (including any license, collaboration, agency or distribution agreements);
(ciii) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise Contract required to be disclosed on Schedule 2.9 pursuant to Item 404 of Regulation S-K of the Disclosure ScheduleExchange Act;
(div) all any Contract or series 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 with Suppliers with respect to which Seller has any liability for “shrink-wrap,” “click-wrap” or obligation involving more than $15,000.00 and other commercially available off-the-shelf software that is not terminable by Seller on thirty (30) days the subject of a negotiated agreement, and excluding agreements the primary purpose of which is to purchase tangible goods or less prior written notice without material liability, penalty or premiumprocure services unrelated to Intellectual Property and in the ordinary course of business);
(evi) Contracts under which any Contract that is material to the amount payable by Seller is dependent on the revenuebusiness of AmSurg and its Subsidiaries, income or other similar measure of Seller or taken as a whole, that provides for any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsprovision or equivalent preferential pricing terms or similar obligations to which AmSurg or any of its Subsidiaries is subject;
(jvii) Contracts any purchase, sale or other supply contract that contains volume requirements or commitments, exclusive or preferred purchasing arrangements which require or promotional requirements reasonably expected to result in payments in excess of $4 million in any twelve (12) month period after the Seller to deliver services on a “fixed fee” or “not to exceed” basisClosing Date;
(kviii) employmentany lease, severancesublease, consulting, deferred compensation and similar agreementsoccupancy 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;
(lix) Contracts with respect any agreement that grants any right of first refusal or right of first offer or similar right or that limits or purports to mergers limit the ability of AmSurg or acquisitionsany of its Subsidiaries to own, sales operate, sell, transfer, pledge or otherwise dispose of securities any material amount of assets or material assets, or investments by Sellerbusinesses (in any case in excess of $10 million);
(mx) Contracts any acquisition or divestiture agreement (A) entered into since January 1, 2013 with Governmental Entities, 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 but indemnification obligations) that have not limited to any franchise agreement, license agreement, or right of way use agreementbeen satisfied in full;
(nxi) strategic alliance, co-marketing, joint development any agreement that by its terms limits the payment of dividends or similar agreementsother distributions by AmSurg or any of its Subsidiaries;
(oxii) all collective bargaining agreements any Contract for any joint venture, partnership or Contracts similar arrangement (in each case, other than any Affiliated Medical Group), or any Contract involving a sharing of revenues, profits, losses, costs, or liabilities by AmSurg or any of its Subsidiaries with any unionother Person involving a potential combined commitment or payment by AmSurg and any of its Subsidiaries in excess of $5 million annually;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(sxiii) any agreements Contract with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, is reasonably expected to 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 receipt 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 Seller owned hand, pursuant to which AmSurg or controlled facilities its Subsidiaries generated revenues through billing of third parties, revenue guarantees or equipment 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 such entity’s poles which AmSurg or conduits its Subsidiaries received payments in excess of $20 million in the year ended December 31, 2015;
(“Pole Attachment Agreements”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 (A) payroll advances to employees and 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 past 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
(txviii) any other agreements 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 Contracts which are material set forth in Section 3.16(a).
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, an AmSurg Material Adverse Effect, (i) all Contracts set forth or required to be set forth in Section 3.16(a) of the AmSurg Disclosure Schedule or filed or required to be filed as exhibits to the Business, AmSurg SEC Documents (the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “AmSurg Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is ) are valid, binding and in full force and effect and are enforceable by AmSurg or its applicable Subsidiary in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) AmSurg, or its terms. There applicable Subsidiary, has performed all obligations required to be performed by it under the AmSurg Material Contracts, and it is no event or condition which has occurred or exists which constitutes or which, not (with or without notice, the happening of any event and/or the passage notice or lapse of time, could constitute a or both) in breach or default or breach under any such Material Contract by Seller orthereunder and, to the knowledge Knowledge of AmSurg, no other party to any AmSurg Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder, (iii) since January 1, 2013, neither AmSurg nor any of its Subsidiaries has received written notice of any actual, alleged, possible or potential violation of, or failure to comply with, any term or requirement of any AmSurg Material Contract, and (iv) neither AmSurg nor any of its Subsidiaries has received any written notice of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights intention of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Sellercancel, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms scope of rights under or fail to renew any AmSurg Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Envision Healthcare Holdings, Inc.), Merger Agreement (Amsurg Corp)
Material Contracts. Schedule 2.9 Neither Buyer nor any of the Disclosure Schedule sets forth its Subsidiaries is a complete and accurate list, in each case party to or bound by any (whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:oral):
(a) Contracts employment, severance or non-competition agreements with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwiseBuyer Employees;
(b) Contracts operating lease, whether as lessor or lessee, with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month periodreal property;
(c) Contracts that may extend contract, whether as licensor or licensee, for a term the license of more than one year after the Closing any patent, know-how, trademark, trade name, service ▇▇▇▇, copyright, or other intangible asset (other than any vendor agreement entered into the Ordinary Course non-negotiated licenses of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedulecommercially available computer software);
(d) all agreements with Suppliers with respect to loan or guaranty agreement, indenture, or other instrument, contract, or agreement under which Seller any money has been borrowed or loaned, which has not yet been repaid, or any liability note, bond, or obligation involving more than $15,000.00 other evidence of indebtedness has been issued and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premiumremains outstanding;
(e) Contracts under which the amount payable by Seller is dependent mortgage, security agreement, conditional sales contract, capital lease, or similar agreement that effectively creates a lien on the revenue, income or other similar measure any assets of Seller Buyer or any of its Subsidiaries (other Personthan any conditional sales contract, capital lease, or similar agreement that creates a lien only on tangible personal property);
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contractscontract restricting Buyer or any of its Subsidiaries in any material respect from engaging in business or from competing with any other parties;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereofplan of reorganization;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, partnership or Affiliate of Sellerjoint venture agreement;
(i) Contracts collective bargaining agreement or other arrangements which place agreement with any limitation on labor union or association representing the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsBuyer Employees;
(j) Contracts contracts and other agreements for the sale 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 arrangements than in the ordinary course of business except for contracts or agreements pursuant to which require the Seller to deliver services on a “fixed fee” sale or “not to exceed” basispurchase has been completed and there are no material obligations remaining;
(k) employmentmaterial warehousing, severancedistributorship, consultingrepresentative, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitionsmarketing, sales of securities agency or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar advertising agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Diker Charles M), Merger Agreement (Cantel Medical Corp)
Material Contracts. Schedule 2.9 (a) As of the date of this Agreement, Section 4.18(a) of the Company Disclosure Schedule sets forth all of the following Contracts to which the Company or any Company Subsidiary is a complete and accurate listparty or which are applicable to any of their assets or properties, in each case whether written or unwritten, of all of as amended through the following Contracts, agreements and arrangements with respect date hereof (each a “Material Contract”):
(i) Contracts that are material to the Seller:
Company and the Company Subsidiaries, taken as a whole, other than (ax) Contracts with respect to of Project Entities entered into in Development and Investment Activities under which Seller the Company or any Company Subsidiary other than a Project Entity has any liability guaranteed the Indebtedness or other payment obligation involving more than $15,000.00, contingent or otherwiseof such Project Entity and (y) SPV Guarantees;
(bii) Except for SPV Guarantees, Contracts with respect to under which Seller expects to receive paymentsthe Company or any Company Subsidiary (other than a Project Entity) has guaranteed the Indebtedness or other payment obligation of any Project Entity or Minority Investment, or incur costs or servicesincluding as a result of the execution, delivery and performance by the Company of more than $15,000.00 in any twelve-month periodthis Agreement and the consummation by the Company of the Merger and the other transactions contemplated hereby;
(ciii) Contracts that may extend for a term of more than one year after the Closing other than SPV Guarantees and Contracts required to be disclosed in clause (a)(ii) above, Contracts providing for the borrowing or lending of money by the Company or any vendor agreement entered into Company Subsidiary, whether as borrower, lender or guarantor other than (x) loans to employees in connection with their initial hiring in the Ordinary Course of Business that are not otherwise required exceeding $100,000 individually and (y) advances to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of employees in the Ordinary Course of Business;
(riv) agreements, licenses, permits, registrationsContracts pursuant to which any material property or assets of the Company or any Company Subsidiary is, or may reasonably be expected to become subject to, a Lien (other approvals with any Governmental Entitythan Permitted Liens) other than (x) SPV Guarantees, and (y) Contracts creating Liens on assets of Project Entities entered into in Development and Investment Activities;
(sv) joint venture, alliance, affiliation or partnership Contracts or joint development or similar Contracts of the Company and Company Subsidiaries (other than Special Purpose Vehicles), including with respect to any direct or indirect investment in, or development of, real property by the Company or a Company Subsidiary other than a Special Purpose Vehicle;
(vi) other than SPV Guarantees and Contracts of Special Purpose Vehicles entered into in Development and Investment Activities that do not have recourse to the Company or any Company Subsidiary other than a Special Purpose Vehicle, Contracts for the acquisition or sale, directly or indirectly (by merger or otherwise), of material assets (whether tangible or intangible) of the Company or any Company Subsidiary or the Equity Interests of the Company or any Company Subsidiary, including Contracts for any such completed acquisitions or sales pursuant to which an “earn out” or similar form of obligation (whether absolute or contingent) is currently pending or for which there are any continuing indemnification or similar obligations, in each case excluding any such Contracts entered into prior to January 1, 2003 and with respect to which there are no remaining obligations on the part of any party (including any indemnification obligations);
(vii) any agreements with interest rate or currency swaps, caps, floors or option Contracts of the Company or any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, Company Subsidiary or any other Seller owned interest rate or controlled facilities currency risk management arrangement or equipment to such entity’s poles foreign exchange Contracts of the Company or conduits (“Pole Attachment Agreements”); andany Company Subsidiary;
(tviii) other agreements or all material Contracts which are material to the Business, the Acquired Assetsconcerning Company Intellectual Property;
(ix) contracts with, or commitments to, Affiliates of the SellerCompany, as set forth in Section 4.22 of the Company Disclosure Schedule;
(x) Contracts pursuant to which the Company or which a reasonable purchaser would consider important any Company Subsidiary is obligated to make any capital contribution or other investment in deciding whether or not loan to acquire the Acquired Assets to the extent not already listed and disclosed pursuant any Person other than (x) SPV Guarantees, (y) Contracts relating to the items set forth above. All described in Section 4.6 of the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC LicensesCompany Disclosure Schedule with respect to Project Entities, and all IP Licenses are sometimes collectively referred (z) Contracts of Project Entities entered into in Development and Investment Activities for which the Company and Company Subsidiaries (other than Project Entities) have no recourse obligations.
(b) Neither the Company nor any Company Subsidiary is, or as of the date of this Agreement, has received any notice that any other party is, in breach, default or violation or is unable to herein as perform in any respect (each a “Material ContractsDefault”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each ) under any Material Contract sets forth the entire agreement (and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes not occurred through the Company’s or which, with any Company Subsidiary’s action or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller inaction or, to the knowledge Knowledge of the SellerCompany, any other party thereto, through the action or could cause the acceleration inaction of any obligation third parties, which with notice or loss the lapse of any rights of any party thereto time or both would constitute or give rise to any right of termination a Default), except for those Defaults which would not be reasonably likely to have, individually or cancellation thereofin the aggregate, a Company Material Adverse Effect. To the knowledge As of the Sellerdate of this Agreement, none neither the Company nor any Company Subsidiary has received written notice of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Sellertermination of, no party to a Material Contract intends or intention to terminate, accelerate, cancel or materially change the terms of any Material Contract, except for such notices or terminations that would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect. No Claims for indemnification under any purchase or sale Contract have been made by or against the Company or any Company Subsidiary since January 1, 2003 that have not been fully resolved prior to the date hereof and, to the Knowledge of the Company, there are no such Claims threatened.
(c) As of the date of this Agreement, neither the Company nor any Company Subsidiary is party to any Contract containing covenants that would limit in any material respect after the Effective Time the ability of Parent or any of its Subsidiaries (excluding, after the Effective Time, the Company or any Company Subsidiary) to (i) engage in any line of business, (ii) compete with any person in any market or line of business or (iii) operate, manage, finance or develop properties in any geographic area or for any type of use (the types of limitations and rights described in clauses (i) through (iii), “Exclusivity Arrangements”), other than Exclusivity Arrangements that restrict activities in a specific local market (as opposed to broader regional, state or national restrictions) that apply only to Development and Investment Activities.
(d) Except as would not be reasonably likely to have a Company Material Adverse Effect, (i) no default has occurred with respect to any of the SPV Guarantees or, if applicable, any Contracts providing for construction or other loans, such that there would be recourse under such Contracts to the Company or any Company Subsidiary for the Indebtedness or other payment obligation of any other Person other than a Special Purpose Vehicle, and (ii) as of the date of this Agreement, no claim against the Company or any Company Subsidiary other than a Special Purpose Vehicle has been made in writing to the Company by the counterparties thereto under such SPV Guarantees or such Contracts. Except as would not be reasonably likely to have a Company Material Adverse Effect, (x) no default has occurred under any joint venture, limited liability company or partnership Contracts to the extent such Contracts are the governing documents of any Special Purpose Vehicle such that there would be recourse under such Contracts to the Company or any Company Subsidiary other than a Special Purpose Vehicle, and, (y) as of the date of this Agreement, no claim against the Company or any Company Subsidiary other than a Special Purpose Vehicle has been made in writing to the Company by the counterparties to such Contracts under such Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Cb Richard Ellis Group Inc), Merger Agreement (Trammell Crow Co)
Material Contracts. Schedule 2.9 Neither Buyer nor any of the Disclosure Schedule sets forth its Subsidiaries is a complete and accurate list, in each case party to or bound by any (whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:oral):
(a) Contracts employment, severance or non-competition agreements with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwiseBuyer Employees;
(b) Contracts operating lease, whether as lessor or lessee, with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month periodreal property;
(c) Contracts that may extend contract, whether as licensor or licensee, for a term the license of more than one year after the Closing any patent, know-how, trademark, trade name, service ▇▇▇▇, copyright, or other intangible asset (other than any vendor agreement entered into the Ordinary Course non-negotiated licenses of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedulecommercially available computer software);
(d) all agreements with Suppliers with respect to loan or guaranty agreement, indenture, or other instrument, contract, or agreement under which Seller any money has been borrowed or loaned, which has not yet been repaid, or any liability note, bond, or obligation involving more than $15,000.00 other evidence of indebtedness has been issued and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premiumremains outstanding;
(e) Contracts under which the amount payable by Seller is dependent mortgage, security agreement, conditional sales contract, capital lease, or similar agreement that effectively creates a lien on the revenue, income or other similar measure any assets of Seller Buyer or any of its Subsidiaries (other Personthan any conditional sales contract, capital lease, or similar agreement that creates a lien only on tangible personal property);
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contractscontract restricting Buyer or any of its Subsidiaries in any material respect from engaging in business or from competing with any other parties;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereofplan of reorganization;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, partnership or Affiliate of Sellerjoint venture agreement;
(i) Contracts collective bargaining agreement or other arrangements which place agreement with any limitation on labor union or association representing the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsBuyer Employees;
(j) Contracts contracts and other agreements for the sale 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 arrangements than in the ordinary course of business except for contracts or agreements pursuant to which require the Seller to deliver services on a “fixed fee” sale or “not to exceed” basispurchase has been completed and there are no material obligations remaining;
(k) employmentmaterial warehousing, severancedistributorship, consultingrepresentative, deferred compensation and similar marketing, sales agency or advertising agreements;; or
(l) Contracts with respect to mergers or acquisitions, sales material contract" (as defined in Item 601(b)(10) of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, coRegulation S-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside K of the Ordinary Course SEC). All of Business;
(r) agreementsthe foregoing are collectively called "Buyer Material Contracts." To the extent Buyer Material Contracts are evidenced by documents, licenses, permits, registrations, true and complete copies have been delivered or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material made available to the BusinessCompany. To the extent Buyer Material Contracts are not evidenced by documents, the Acquired Assets, written summaries have been delivered or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets made available to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material ContractsCompany. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Buyer Material Contract is validin full force and effect, binding and unless the failure of any Buyer Material Contracts to be in full force and effect has not had and enforceable would not be reasonably likely to have, individually or in accordance with the aggregate, a Buyer Material Adverse Effect. Neither Buyer nor any of its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orSubsidiaries nor, to the knowledge of the SellerBuyer, any other party thereto, is in breach of or could cause the acceleration of in default under any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the SellerBuyer Material Contracts, none of except for breaches or defaults that have not had and would not be reasonably likely to have, individually or in the parties to any aggregate, a Buyer Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Minntech Corp), Merger Agreement (Netsilicon Inc)
Material Contracts. Schedule 2.9 (a) Section 4.14(a) of the Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts to which any Company Entity is a party or by which any of them or their respective assets of properties are bound (collectively, the “Material Contracts”):
(i) Contracts (A) with any Seller or Affiliate thereof or any current or former officer, agreements and arrangements director, stockholder or Affiliate of any Company Entity or (B) between the Sellers with respect to the Seller:Company;
(aii) 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 which Seller has any liability options, co-existence agreements, rights, escrows, licenses, covenants not to assert or obligation involving more ▇▇▇, 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 $15,000.00, contingent or otherwisestandard and customary confidentiality agreements executed in the Ordinary Course of Business);
(bvi) Contract Manufacturing Agreements or other Contracts that relate to the research, development, distribution, marketing, supply, co-promotion or manufacturing of any Company Product;
(vii) Contracts pursuant to which goods or materials are supplied to any Company Entity from an exclusive source (i.e., “single source” supply Contracts);
(viii) Contracts containing covenants of any Company Entity not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment or covenants of any other Person not to compete with any Company Entity in any line of business or in any geographical area or not to solicit or hire any person with respect to employment;
(ix) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by any Company Entity of any operating business or material assets or the capital stock of any other 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 Seller expects any Company Entity collects and compiles data;
(xii) Contracts obligating any Company Entity to receive provide or obtain products or services for a period of one (1) year or more or requiring a Company Entity to purchase or sell a stated portion of its requirements or outputs;
(xiii) Contracts under which any Company Entity has made advances or loans to any other Person;
(xiv) Contracts providing for severance, retention, change in control or other similar payments, which require payments exceeding $100,000;
(xv) Contracts for the employment of any individual on a full-time, part-time or incur costs consulting or servicesother 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 $15,000.00 250,000 annually or $1,000,000 in the aggregate or require performance by any twelve-month periodparty 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;
(cxix) Contracts that may extend for a term of more than one year after the Closing License Agreements either (A) with annual payments exceeding $50,000; or (B) pursuant to which any Company Entity has granted to, or licensed from, any Person any rights (or immunities) with respect to any Intellectual Property, Software or other Technology (other than any vendor agreement entered into nonexclusive licenses granted to customers on standard terms in the Ordinary Course of Business that are not otherwise required Business);
(xx) Contracts pursuant to be disclosed on Schedule 2.9 which any Company Entity has continuing obligations or interests involving royalties (or other amounts calculated based upon the revenues or income of any Company Entity), license fees or similar payments (but exclusive of any Material Contracts listed in Section 4.14(a)(xix) of the Disclosure Schedule);
(xxi) Real Property Leases;
(xxii) Contracts concerning leases of personal property requiring rental payments exceeding $100,000;
(xxiii) Contracts with any Governmental Body involving annual payments exceeding $100,000;
(xxiv) Contracts with any of the largest customers or largest suppliers of the Company Entities, as identified in Section 4.21 of the Disclosure Schedule;
(dxxv) all agreements Contracts entered into after January 1, 2012 related to the compromise or settlement of any litigation, arbitration or other proceding, other than Contracts entered into with Suppliers former employees of the Company in connection with respect to which Seller has any liability termination of employment involving a settlement amount of $50,000 or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premiumless;
(exxvi) Contracts under which the amount payable by Seller is dependent on the revenuecontaining any most-favored nations undertakings, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right rights of first refusal, price protection mechanisms with respect to sales to customers of any Company Entity, or “most favored nation” provisionsany other similar provisions restricting the business of the Company Entities;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(lxxvii) Contracts with respect to mergers any labor union or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use collective bargaining agreement;
(nxxviii) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with involving any union;
(p) outstanding powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements attorney executed on behalf of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Company Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(txxix) other agreements or Contracts which that are otherwise material to the BusinessCompany Entities.
(b) Except as disclosed in Section 4.14(b) of the Disclosure Schedule, each of the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract Contracts is valid, binding and in full force and effect and is the legal, valid and binding obligation of the 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 its termsterms (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies (regardless of whether enforcement is sought in a proceeding at Law or in equity)). There No Company Entity is in default under any Material Contract, nor, to the Knowledge of the Company, is any other party to any Material Contract in breach of or default thereunder. To the Knowledge of the Company, there is no event or existing condition which has occurred or exists which constitutes or whichthat, with or without notice, the happening of any event and/or the passage lapse of time, could giving of notice or both, would constitute a breach of or default or breach under any such Material Contract by Seller or, Contract. No party to the knowledge any of the Seller, Material Contracts has exercised in writing any other party termination rights with respect thereto, or could cause the acceleration and no party has given written notice of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties significant dispute with respect to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in Contract. The Company has delivered to Purchaser true, correct and complete copies of all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the SellerMaterial Contracts, no party to a Material Contract intends to terminatetogether with all amendments, accelerate, cancel modifications or materially change the terms of any Material Contractsupplements thereto.
Appears in 2 contracts
Sources: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement (Cerecor Inc.)
Material Contracts. Schedule 2.9 (a) All Contracts required to be filed as exhibits to the Sirona SEC Documents have been so filed in a timely manner. Section 3.16(a) of the Sirona Disclosure Schedule sets forth a true and complete and accurate list, in each case whether written or unwrittenas of the date hereof, of all each of the following ContractsContracts to which Sirona or any of its Subsidiaries is a party or by which Sirona or any of its Subsidiaries or any of their assets or businesses are bound (and any amendments, agreements supplements and arrangements with respect to the Seller:modifications thereto):
(ai) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwiseContract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(bii) Contracts with respect 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 which Seller expects to receive payments, compete or incur costs or services, of more than $15,000.00 provide services in any twelve-month periodline of business or with any Person or in any geographic area or market segment or to engage in any type of business (including any license, collaboration, agency or distribution agreements);
(ciii) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise Contract required to be disclosed on Schedule 2.9 pursuant to Item 404 of Regulation S-K of the Disclosure ScheduleExchange Act;
(div) all any Contract or 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 with Suppliers with respect to which Seller has any liability for “shrink-wrap,” “click-wrap” or obligation involving more than $15,000.00 and other commercially available off-the-shelf software that is not terminable by Seller on thirty (30) days the subject of a negotiated agreement, and excluding agreements the primary purpose of which is to purchase tangible goods or less prior written notice without material liability, penalty or premiumprocure services unrelated to Intellectual Property and in the ordinary course of business);
(evi) Contracts under which any Contract reasonably expected to result in payments in excess of $10 million in any twelve (12) month period after the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or Closing Date that provides for any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or material “most favored nation” provisionsprovision or equivalent preferential pricing terms or similar obligations to which Sirona or any of its Subsidiaries is subject;
(jvii) Contracts or other arrangements which require 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 Seller to deliver services on a “fixed fee” or “not to exceed” basistwelve (12) months ended June 30, 2015);
(kviii) employmentany 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, severance, consulting, deferred compensation and similar agreements2015);
(lix) Contracts 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 mergers or acquisitions, sales the Sirona Leased Real Property reasonably expected to result in payments in excess of securities or material assets, or investments by Seller$10 million in any twelve (12) month period after the Closing Date;
(mxi) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, agreement that grants any right of first refusal or right of way use agreementfirst 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);
(nxii) strategic allianceany acquisition or divestiture agreement (A) entered into since June 30, co2012 with a purchase price in excess of $20 million or (B) that contains “earn-marketing, joint development out” provisions or similar agreementsother contingent payment obligations that could reasonably be expected to exceed $10 million (including indemnification obligations) that have not been satisfied in full;
(oxiii) all collective bargaining agreements any agreement that by its terms limits the payment of dividends or Contracts with other distributions by Sirona or any unionof its Subsidiaries;
(pxiv) powers any Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of attorneyrevenues, profits, losses, costs, or liabilities by Sirona or any of its Subsidiaries with any other Person involving a potential combined commitment or payment by Sirona and any of its Subsidiaries in excess of $10 million annually;
(qxv) agreements, Contracts, instruments, commitments, plans any “single source” supply Contract pursuant to which goods or other arrangements materials that are material to Sirona or any of Seller outside its Subsidiaries are supplied to Sirona or such Subsidiary from an exclusive source reasonably expected to result in payments in excess of $10 million in any twelve (12) month period after the Ordinary Course of BusinessClosing Date;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(sxvi) any agreements Contract with any Governmental Entity reasonably expected to result in payments in excess of $10 million in any twelve (12) month period after the Closing Date; or
(xvii) any other agreement which would prohibit or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation delay beyond the Outside Date the consummation of fiber optic lines, coaxial cables, Merger or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); andTransaction contemplated by this Agreement.
(tb) other agreements Sirona has heretofore made available to DENTSPLY true, correct and complete copies of the Contracts set forth in Section 3.16(a).
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Sirona Material Adverse Effect, (i) all Contracts which are material set forth or required to be set forth in Section 3.16(a) of the Sirona Disclosure Schedule or filed or required to be filed as exhibits to the Business, Sirona SEC Documents (the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Sirona Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is ) are valid, binding and in full force and effect and are enforceable by Sirona or its applicable Subsidiary in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) Sirona, or its terms. There applicable Subsidiary, has performed all obligations required to be performed by it under the Sirona Material Contracts, and it is no event or condition which has occurred or exists which constitutes or which, not (with or without notice, the happening of any event and/or the passage notice or lapse of time, could constitute a or both) in breach or default or breach under any such Material Contract by Seller orthereunder and, to the knowledge Knowledge of Sirona, no other party to any Sirona Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder, (iii) since January 1, 2015, neither Sirona nor any of its Subsidiaries has received written notice of any actual, alleged, possible or potential violation of, or failure to comply with, any term or requirement of any Sirona Material Contract, and (iv) neither Sirona nor any of its Subsidiaries has received any written notice of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights intention of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Sellercancel, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms scope of rights under or 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. Schedule 2.9 (a) Section 3.12 of the Company Disclosure Schedule Letter sets forth a complete list of each of the following Contracts to which, 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) all material Contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment (other than agreements with employees, non-exclusive licenses granted to the Company’s or its Subsidiaries’, if any, customers, and accurate listnon-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms);
(v) all partnership, joint venture or other similar agreements or arrangements;
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or a series of related agreements) with an aggregate outstanding principal amount not exceeding $1,000,000;
(vii) any agreement for the disposition or acquisition by the Company or any of its 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 material business or any material amount of assets other than in the ordinary course of business;
(viii) any 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 whether written case, for the 2022 fiscal year and as of September 30, 2023, measured by the aggregate obligations paid or unwrittenagreed to pay to or by the Company, as applicable;
(ix) any agreement restricting or limiting the payment of all 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 development of Intellectual Property, other than those entered into in the ordinary course of business with Company employees and contractors on the Company’s standard form for such Contracts; and
(xi) to the extent not set forth in Section 3.12(a) of the following ContractsCompany Disclosure Letter pursuant to another subsection of this Section 3.12(a), all material agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;Governmental Authority.
(b) Contracts with respect to which Seller expects to receive paymentsEach Company Material Contract is a valid and binding agreement of the Company or its applicable Subsidiary, or incur costs or servicesif any, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after except where the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required failure to be disclosed on Schedule 2.9 of valid and binding would not, individually or in the Disclosure Schedule;
(d) all agreements with Suppliers with respect aggregate, reasonably be expected to which Seller has any liability have a Company Material Adverse Effect. Except as would not, individually or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilityin the aggregate, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenuereasonably be expected to have a Company Material Adverse Effect, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts neither the Company or other arrangements which place any limitation on the method of conducting or scope of the Business includingsuch Subsidiary, without limitationif any, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller ornor, to the knowledge Knowledge of the SellerCompany, any other party thereto, is in breach of or could cause the acceleration of default under any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge such Company Material Contract, (ii) as of the Sellerdate of this Agreement, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There there are no pending renegotiations of material disputes in connection with any such Company Material Contract and to the knowledge (iii) as of the Sellerdate of this Agreement, no party to a under any Company Material Contract intends has given written notice of its intent to terminate, accelerate, cancel terminate or materially change the terms of any 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. Schedule 2.9 (a) Except for this Agreement, Section 3.14(a) of the Seller Disclosure Schedule sets forth Letter contains a complete and accurate correct list, as of the date hereof, of each Contract that meets the criteria described in this Section 3.14(a) under which Seller or any of its Subsidiaries has any current or future rights, responsibilities, obligations or liabilities (in each case case, whether written contingent or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(aotherwise) Contracts with respect or to which Seller has or any liability Subsidiary thereof is a party or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive paymentsany of their respective properties or assets is subject, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 Benefit Plans (all such Contracts of the Disclosure Schedule;
(d) all agreements type described in this Section 3.14(a), together with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) IP Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All on Section 3.14(a) of the foregoing (whether written or unwritten)Seller Disclosure Letter, including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively being referred to herein as “Material Contracts”. The ):
(i) each Contract that limits in any material respect the freedom of the Business (including as conducted by Purchaser or its affiliates after the Closing) to compete or engage in any line of business or geographic region or with any Person or to sell, supply or distribute any product or service or that otherwise has the effect of restricting, in any material respect, the Business (including Purchaser or its affiliates after the Closing) from the development, marketing or distribution of products and services, in each case, in any geographic area;
(ii) any material joint venture or limited liability company agreement (other than any such agreement solely between or among Seller has furnished and its wholly owned Subsidiaries) or similar Contract relating to the Purchaser trueBusiness;
(iii) each acquisition or divestiture Contract relating to the Business that contains representations, completecovenants, 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 Business of future payments in excess of $1,000,000, in each case, excluding any (x) post-closing retention payments or equity awards, and correct copies (y) amounts retained pursuant to customary indemnity escrow or holdback arrangements;
(iv) each Contract that gives any Person the right to acquire any Purchased Assets (excluding ordinary course commitments to purchase goods, products and off-the-shelf Technology) after the date hereof with consideration of all Material Contracts. Each Material more than $2,000,000;
(v) any Contract sets forth to provide material Source Code for any Business Product to any third Person, including any Contract that requires Seller or any of its Subsidiaries to put Source Code for any Business Product in escrow with a third Person on behalf of a licensee or contracting party;
(vi) any settlement or similar Contract with a Governmental Entity, other than those relating to (x) Taxes or (y) any Governmental Entity in its capacity as a customer of Seller or any of its Subsidiaries, that relates to the entire agreement Business;
(vii) except as has not been, and understanding would not reasonably be expected to be, individually or in the aggregate, material to the Business, any settlement or similar Contract restricting in any respect the operations or conduct of the Business (including the operation or conduct of the Business by Purchaser or its affiliates after the Closing);
(viii) each Contract relating to the Business pursuant to which Seller or any of its Subsidiaries has paid or received payments in excess of $5,000,000 in the fiscal year ended March 29, 2019, or is obligated to pay or entitled to receive payments in excess of $5,000,000 in the twelve (12)-month period following the date hereof, in each case, other than (A) Contracts solely between the Seller and its Subsidiaries or solely between wholly owned Subsidiaries of Seller, (B) Contracts with customers, suppliers, vendors, resellers, global service providers, global systems integrators, managed services providers or global technology partners of Seller or any of its Subsidiaries, (C) each lease, sublease or occupancy agreement in respect of Business Leased Real Property (each, a “Business Lease”) and (D) Contracts otherwise described in any other subsection of this Section 3.14(a);
(ix) each Contract that is (A) a Material Customer Agreement, (B) a Material Supplier Agreement, (C) a Material Reseller Agreement, (D) a Material Distributor Agreement or (E) a Material Government Entity Customer Agreement;
(x) except where the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening exercise of any event and/or such right or imposition of such limitation has not been, and would not reasonably be expected to be, individually or in the passage of timeaggregate, could constitute a default or breach under any such Material material to Business, each Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to that grants any right of termination first refusal or cancellation thereof. To right of first offer or that limits the knowledge ability of the SellerBusiness (including as conducted by the Purchaser or any of its affiliates after the Closing) to own, none operate, sell, transfer, pledge or otherwise dispose of any part of the parties Business or the Purchased Assets;
(xi) each Contract that contains any exclusivity rights or “most favored nations” provisions, in each case, that are material in any respect to the Business (including Purchaser or its affiliates after the Closing);
(xii) each Contract not otherwise described in any other subsection of this Section 3.14(a) evidencing or granting any Liens (other than Permitted Liens) on any Purchased Asset;
(xiii) each Business Lease involving annual lease payments in excess of $2,000,000; and
(xiv) any Contract not otherwise described in any other subsection of this Section 3.14(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) of Seller that is related to the Business (other than those agreements and arrangements described in Item 601(b)(10)(iii) of Regulation S-K of the SEC).
(b) True and complete copies of each Material Contract in effect as of the date hereof have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract been publicly filed with the SEC on or after January 1, 2018 and prior to the knowledge date hereof or have been made available to Purchaser. Neither Seller nor any of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel its Subsidiaries is in breach of or materially change default under the terms of any Material Contract, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect. To Seller’s Knowledge, as of the date hereof, no other party to any Material Contract is in breach of or default 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 Business Material Adverse Effect. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, each Material Contract is a valid, binding and enforceable obligation of the Seller or its Subsidiary which is party thereto and, to Seller’s Knowledge, of each other party thereto, and is in full force and effect, subject to the Enforceability Limitations and any expiration thereof in accordance with its terms existing as of the date hereof.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, (i) each Business Government Contract was legally awarded, (ii) no Business Government Contract or proposal for the award of a Business Government Contract is, as of the date hereof, the subject of bid or award protest proceedings, and (iii) neither Seller nor any of its Subsidiaries is in breach of or default under the terms of, and to Seller’s Knowledge, there is no basis for any claim of fraud (including a claim under the Civil False Claims Act) with regard to any or Business Government Contract. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, since March 28, 2014, (A) all material facts set forth or acknowledged by any representations, certifications or statements made or submitted by or on behalf of Seller or any of its Subsidiaries in connection with any Business Government Contract or Business Government Bid were true, accurate and complete as of the date of submission and made by an authorized representative of Seller or one of its Subsidiaries, and (B) neither any Governmental Entity nor any prime contractor or higher-tier subcontractor has notified Seller or any of its Subsidiaries in writing that Seller or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Business Government Contract. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, since March 28, 2014, (I) no costs incurred by Seller or any of its Subsidiaries pertaining to any Business Government Contract have been deemed finally disallowed in writing by a Governmental Entity or, to the Seller’s Knowledge, proposed for disallowance, and (II) no payment due to Seller or any of its Subsidiaries pertaining to any Business Government Contract has been withheld or set off, nor, to Seller’s Knowledge, has any claim been made to withhold or set off any such payment.
(d) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, since March 28, 2014, (i) none of Seller, any of its Subsidiaries or, to Seller’s Knowledge, any of their respective Principals (as defined in Federal Acquisition Regulation 52.209-5) has been debarred, suspended or excluded, or to Seller’s Knowledge, proposed for debarment, suspension or exclusion, from participation in or the award of Contracts or subcontracts for or with any Governmental Entity or doing business with any Governmental Entity, and, to Seller’s Knowledge, as of the date hereof, no circumstances exist that would reasonably be expected to warrant the institution of any such debarment, suspension or exclusion proceedings, in each case, relating to the Business, the Purchased Assets or the Assumed Liabilities, (ii) none of the Seller or any of its Subsidiaries has received any written request to show cause or, to Seller’s Knowledge, similar communication alleging that Seller or any of its Subsidiaries may be in breach or violation of a Business Government Contract or any Laws related thereto, (iii) none of Seller or any of its Subsidiaries has been declared nonresponsible or ineligible, or otherwise excluded from participation in the award of any Business Contract with a Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements),
Appears in 1 contract
Material Contracts. Schedule 2.9 SCHEDULE 2.6 lists each Contract to which the Company or any Subsidiary is a party or to which the Company, any Subsidiary or any of their respective Properties is subject or by which any of their property is bound that is deemed a Material Contract under this Agreement. Unless otherwise so noted on SCHEDULE 2.6, each such Contract was entered into in the Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, ordinary course of all of the following Contracts, agreements and arrangements with respect to the Seller:
business. Each Contract that (a) Contracts with respect obligates the Company to which Seller pay an amount of Five Thousand Dollars ($5,000) or more (individually or in the aggregate) after ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) has any liability or obligation involving more than $15,000.00an unexpired term as of June 1, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments1998 in excess of one month, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for represents a term of more than one year after contract upon which the Closing other than any vendor agreement entered into Business is substantially dependent or which is otherwise material to the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
Business, (d) all agreements provides for an extension of credit inconsistent with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 normal and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilitycustomary credit terms, penalty or premium;
(e) Contracts under which limits or restricts the amount payable by Seller is dependent on ability of the revenue, income or other similar measure of Seller Company or any other Person;
Subsidiary to compete or otherwise to conduct its business in any manner or place, including confidentiality agreements, (f) distributionprovides for a guaranty, marketingsuretyship, resellerperformance bond, partneror indemnity by the Company or any Subsidiary, sales, agency, independent sales agency and referral contracts;
(g) Contractsgrants a power of attorney, instruments and arrangements relating agency or similar authority to any Indebtedness another person or the guarantee thereof;
entity, (h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, a right of first refusal, (i) grants any Encumbrance upon any asset of the Company or “most favored nation” provisions;
any Subsidiary, (j) Contracts involves bonus, stock option, severance, golden parachute, deferred compensation, special retirement, consulting or other similar arrangements which require for the Seller to deliver services on a “fixed fee” benefit of one or “not to exceed” basis;
more of the current or former directors, officers or employees of the Company or any Subsidiary, (k) employmentcreates any partnership or joint venture, severance, consulting, deferred compensation and similar agreements;
(l) Contracts contains a right or obligation other than in the ordinary course of business of any Affiliate, officer or director or any Associate, of Seller, the 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 mergers which there will be material losses or acquisitions, sales will be costs and expenses materially in excess of securities expected receipts (other than as provided for or material assets, otherwise reserved against on the most recent of the balance sheets referred to in Section 2.4) or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliancewas not made in the ordinary course of business, co-marketingshall be deemed to be a Material Contract and has been identified on such SCHEDULE 2.6. True, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside correct and complete copies of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Material Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten)appearing on SCHEDULE 2.6, including all amendments or modifications theretoand supplements entered into through the date of this Agreement, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred have been delivered to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties theretoBuyer. Each Material Contract is validvalid and subsisting; the Company or the applicable Subsidiary has duly performed all of its material obligations thereunder to the extent that such obligations to perform have accrued; and except as will not be material to the Company, binding and in full force and effect and enforceable in accordance no breach or default, alleged breach or default, or event which would (with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could notice or both) constitute a breach or default thereunder by the Company or breach under any such Material Contract by Seller its Subsidiary, as applicable, or, to the best knowledge of the SellerCompany, any other party or obligor with respect thereto, has occurred or could cause as a result of this Agreement or performance thereof will occur. Consummation of the acceleration of transactions contemplated by this Agreement will not (and will not give any person a right to) terminate or modify any rights of, or accelerate or augment any obligation of, the Company or loss of any rights of Subsidiary under any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractContracts.
Appears in 1 contract
Sources: Stock Purchase and Contribution Agreement (Western Investment Real Estate Trust)
Material Contracts. Schedule 2.9 of the Disclosure Schedule sets forth (a) The Company is not a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect party to the Sellernor is it bound by:
(ai) Contracts with respect any Contract (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 the Company to make any severance, termination or similar payment to any current or former employee or (C) pursuant to which Seller has the Company may be obligated to make any liability bonus or obligation involving more than $15,000.00, contingent similar payment to any current or otherwiseformer employee or director;
(bii) Contracts with respect any Contract relating to which Seller expects to receive paymentsany partnership, joint venture, strategic alliance, collaboration, material research and development project or incur costs or services, of more than $15,000.00 in any twelve-month periodother similar arrangement;
(ciii) Contracts that may extend any Contract (excluding licenses for a term of more than one year after commercial off the Closing other than any vendor agreement entered into the Ordinary Course of Business shelf computer software that are generally available on nondiscriminatory pricing terms) to which the Company is a party or otherwise bound and pursuant to which the Company (A) receives from any Third Party the right to use, or a covenant not otherwise required to be disclosed on Schedule 2.9 of sued under, any Intellectual Property Right or (B) grants to any Third Party the Disclosure Scheduleright to use, or a covenant not to be sued under, any Intellectual Property Right;
(div) all agreements any Contract with Suppliers with respect sole-source or single-source suppliers of material tangible products or services or pursuant to which Seller the Company has agreed to purchase a minimum quantity of goods relating to any liability product or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days product candidate or less prior written notice without material liability, penalty has agreed to purchase goods relating to any product or premiumproduct candidate exclusively from a certain party;
(ev) Contracts under which any Contract that relates to the amount payable by Seller is dependent on the revenueresearch, income or other similar measure of Seller or any other Person;
(f) development, distribution, marketing, resellersupply, partnerlicense, salescollaboration, agency, independent sales agency and referral contractsco-promotion or manufacturing of the Key Product;
(gvi) Contractsany stockholders, instruments and arrangements relating to any Indebtedness investors rights, registration rights or the guarantee thereofsimilar agreement or arrangement;
(hvii) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or Contract containing “most favored nation” provisions, any exclusive dealing arrangement or any arrangement that grants any right of first refusal, first offer, first negotiation or similar preferential right;
(jviii) Contracts any Contract that would reasonably be expected to result in aggregate payments by or other arrangements which require to the Seller to deliver services Company on a “fixed fee” or “not to exceed” basisafter the date hereof in excess of (A) $150,000 in the current or any future calendar year or (B) $300,000 in the aggregate;
(kix) employmentany Contract pursuant to which the Company has continuing obligations or interests involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company in each case that is not terminable by the Company without penalty without more than 60 days’ notice (excluding incidental and immaterial provisions, severanceand customary indemnities, consulting, deferred compensation and similar agreementsthat by their terms survive termination of the relevant Contract);
(lx) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Sellerany Lease;
(mxi) Contracts with Governmental Entitiesany Contract that provides for indemnification of any current or former officer, including but not limited to any franchise agreement, license agreement, director or right of way use agreementemployee;
(nxii) strategic alliance, co-marketing, joint development or similar agreementsany Contract with a Related Party;
(oxiii) any Contract for the disposition of all collective bargaining agreements or Contracts with any unionsignificant portion of the assets or business of any of the Company 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);
(pxiv) powers any Contract relating to indebtedness for borrowed money, any guarantees thereof or the granting of attorneymaterial Liens over the property or assets of the Company;
(qxv) agreements, Contracts, instruments, commitments, plans any Contract relating to any loan or other arrangements extension of Seller outside of credit made by the Ordinary Course of BusinessCompany;
(rxvi) agreementsany Contract containing any provision or covenant limiting in any material respect the ability of the Company (or, licensesafter the Effective Time, permitsParent, registrationsthe Surviving Corporation or any of their respective 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 other approvals with limiting the ability of any Governmental Entity;Person to provide products or services to the Company (or, after the Effective Time, Parent, the Surviving Corporation or any of their respective Subsidiaries); or
(sxvii) any agreements with any Governmental Entity or nonContract (other than those referenced in clauses (i) through (xvi) above) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation K of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits the SEC) (“Pole Attachment Agreements”); and
(tall contracts of the type described in this Section 4.19(a) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively being referred to herein as “Material Contracts”. ).
(b) The Seller Company has furnished made available to the Purchaser true, complete, Parent a true and correct copies complete copy of all each Material ContractsContract. Each of the Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract Contracts is valid, binding valid and in full force and effect and enforceable effect. Neither the Company nor, to the knowledge of the Company, any other party to a Material Contract, has violated in accordance with its terms. There is no event any material respect any provision of, or condition which has occurred taken or exists which constitutes or failed to take any act which, with or without notice, the happening of any event and/or the passage lapse of time, could or both, would constitute a default or material breach under any the provisions of such Material Contract by Seller Contract, and the Company has not received written or, to the knowledge of the SellerCompany, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller oral notice that it will not fulfill its obligations thereunder has breached, violated or defaulted in all any material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of respect under any Material Contract.
Appears in 1 contract
Material Contracts. Schedule 2.9 of the Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller Company has furnished to the Purchaser true, complete, and correct copies of Parent all Material Contracts. Each All such Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding Contracts are valid and in full force and effect and enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and general equity principles, except to the extent that (i) they have previously expired or otherwise terminated in accordance with their terms or (ii) the failure to be in full force and effect would not reasonably be expected to have a Material Adverse Effect on the Company. Neither the Company nor any of its terms. There is no event Subsidiaries, nor, to the knowledge of the Company, any counterparty to any such Material Contract, has materially violated any provision of, or condition which has occurred committed or exists which constitutes or failed to perform any act which, with or without notice, the happening lapse of any event and/or the passage of timetime or both, could would constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms provisions of any Material Contract. No Material Contract has been amended or modified prior to the date of this Agreement, except for such amendments or modifications which have been filed or furnished as an exhibit to a subsequently filed or furnished Company SEC Document, or which are not otherwise required to be filed or furnished to the SEC prior to the date of this Agreement. Section 3.16 of the Disclosure Schedule lists the following contracts, agreements and other commitments to which, as of the date of this Agreement, the Company or any of its Subsidiaries is a party or by which any of their respective assets or properties are bound (collectively, the “Material Contracts”): (a) “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) to which it or its Subsidiaries are a party that were required to be filed with or furnished to the SEC prior to the date of this Agreement; (b) any contract or agreement for the purchase of active pharmaceutical ingredients from any supplier to the Company and/or any of its Subsidiaries that involves future payments by the Company of $5,000,000 or more on an annual basis; (c) any contract or agreement with a group purchasing organization for the sale by the Company or any of its Subsidiaries of pharmaceutical products or similar agreement for the sale by the Company of products, in each case under which the Company and its Subsidiaries reasonably expect to generate annual net revenues in excess of $25,000,000 (“GPO Agreement”); (d) any contract or agreement evidencing indebtedness for borrowed money of the Company; (e) any non-competition agreement or any other agreement or obligation which purports to limit in any material respect the Company’s ability to compete in any line of business, or with any Person in any geographical area; or (f) any contract, agreement or arrangement to allocate, share or otherwise indemnify for Taxes.
Appears in 1 contract
Material Contracts. Schedule 2.9 (a) Except as disclosed in Section 3.12(a) of the Seller Disclosure Schedule sets forth Schedule, Seller is not a complete and accurate listparty to or bound by:
(i) any lease or sublease of personal property providing for annual rentals of $10,000 or more;
(ii) any Contract relating to real property, in each case including pursuant to which Seller or any other Person has a right to use, occupy or possess any real property;
(iii) any Contract for the purchase of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments by Seller of $25,000 or more or (B) aggregate payments by Seller of $150,000 or more;
(iv) any sales, distribution or other similar Contract providing for the sale by Seller of materials, supplies, goods, services, equipment or other assets that provides for either (A) annual payments to Seller of $25,000 or more or (B) aggregate payments to Seller of $150,000 or more;
(v) any partnership, joint venture or other similar Contract or arrangement;
(vi) any Contract relating to the acquisition or disposition of any business (whether written by merger, sale of stock, sale of assets or unwrittenotherwise);
(vii) any Contract granting any Person a right of first refusal or first offer or similar preferential right to purchase or acquire any Purchased Asset;
(viii) any so called “requirements” Contract requiring Seller to purchase its requirements of a particular raw material, of resource or product from a particular supplier or suppliers, or to purchase all or substantially all of the following Contractsoutput or production of a particular supplier or suppliers;
(ix) any Contract relating to Indebtedness;
(x) any mortgage, agreements and arrangements deed of trust, pledge, security agreement, or other instrument or Contract granting a Lien on any Purchased Asset;
(xi) any option, license, franchise or similar Contract (other than non-exclusive licenses to any Owned Intellectual Property Rights or Licensed Intellectual Property Rights granted in the ordinary course of business consistent with past practice);
(xii) any agency, dealer, sales representative, marketing or other similar Contract;
(xiii) any Contract that (A) limits the freedom of Seller or its employees, other than this Agreement or the Non-Competition Agreements, to (1) compete in any line of business or with any Person or in any area 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 the Seller:any product or any geographic location;
(axiv) Contracts any Contract with respect or for the benefit of any Affiliate of Seller or otherwise with any director or officer of Seller or any of its Affiliates; or
(xv) any other agreement, commitment, arrangement or plan not made in the ordinary course of business that is material to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;the Business.
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 Each Contract disclosed in any twelve-month period;
(c) Contracts that may extend for a term section of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise Seller Disclosure Schedule or required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
pursuant to this Section 3.12 (d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Businesscollectively, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract ) is a valid, binding and enforceable agreement of Seller and is in full force and effect effect, and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening none of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, thereto is in default or could cause breach in any material respect under the acceleration terms of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Sellersuch Material Contract, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and and, to the knowledge of the Seller, no party to a event or circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default thereunder. True and complete copies of each such Material Contract intends have been delivered to terminate, accelerate, cancel or materially change the terms of any Material ContractBuyer.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ultra Clean Holdings Inc)
Material Contracts. Schedule 2.9 of the Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Except as set forth on the Contracts Schedule attached hereto ------------------ (which items are referred to herein as the "Material Contracts"), with respect ------------------ to which the Business, other than contracts with suppliers for raw materials, neither Seller has nor Ball is a party to any liability written or oral: (i) contract for the employment of any officer, individual employee, or other person on a full-time basis; (ii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of its real or personal properties (whether tangible or intangible); (iii) guaranty of any obligation involving more than $15,000.00, contingent for borrowed money or otherwise;
; (biv) Contracts license or royalty agreement; (v) contract or group of related contracts with respect to the same party for the purchase of goods, products or services (including advertising, public relations, consulting or management services) under which Seller expects to receive paymentsthe undelivered balance of such goods, products or incur costs services requires aggregate annual payments in excess of $20,000 or services, continuing over a period of more than $15,000.00 in any twelve-month period;
six (c6) Contracts that may extend for a term of more than one year after months from the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability date or obligation involving more than $15,000.00 dates thereof and that is not terminable by Seller on thirty (30) days days' or less prior written notice without material liabilitypenalties; (vi) any contract or group of related contracts with the same party for the sale of goods, penalty products or premium;
services involving aggregate annual receipts in excess of $100,000; (evii) Contracts under contract with the Federal government of the United States or any branch or administrative body thereof; (viii) contract which prohibits Seller from freely engaging in the amount payable by Seller is dependent on Business anywhere in the revenue, income world; (ix) nondisclosure or other similar measure confidentiality agreement; (x) contract relating to the distribution of products or services of the Business; (xi) contract with any officer or director of Seller or Ball or any of its Affiliates, or any relative of any officer or director of Seller or Ball or any of its Affiliates; (xii) agreements with respect to the lending or investing of funds; or (xiii) other Person;agreement material to the Business or not entered into in the ordinary course of business.
(fb) distributionExcept as set forth on the Contracts Schedule, marketingwith respect to the ------------------ Business, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts no Material Contract has been breached or canceled by the other arrangements which place any limitation on party since the method date of conducting or scope of August Balance Sheet; (ii) Seller has in all material respects performed all the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller obligations required to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts be performed in connection with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and not in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening default of any event and/or the passage of time, could constitute a default or breach its obligations (nor is it in receipt of any claim of default) under any such Material Contract by Contract; and (iv) Seller or, to the has no knowledge of the Seller, any breach or anticipated breach by any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contract.
(c) Purchaser has been supplied with a true and correct copy of all written Material Contracts (other than the purchase orders from Seller's customers) together with all amendments, waivers or other changes thereto and all correspondence delivered or received with respect thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bway Corp)
Material Contracts. Schedule 2.9 (a) For all purposes of and under this Agreement, a “Material Contract” shall mean:
(i) any “material contract” indicated as such in the Company’s annual report for the year ending December 31, 2019;
(ii) any Contract to which the Company or any of its Subsidiaries is a party which is material to the Company and its Subsidiaries, that (A) contains any covenant by the Company or any of its Subsidiaries to not compete or engage in any line of business or to not engage in its business in any geographic location, (B) restricts the development, manufacture, marketing, distribution of the Disclosure Schedule sets forth a complete products and accurate listservices, or any other activity of the Company or any of its Subsidiaries and Affiliates (including, for purposes hereof, its future Affiliates, such as Parent), including any Contract with any Person granting such Person the exclusive right in any territory to sell or distribute any product, or other Contract providing “most favored nations” pricing terms for products, or (C) contains indemnification undertakings (or provisions with similar effect) except (i) if such undertakings are provided in the ordinary course of business or (ii) standard warranty to Company products, in each case whether written other than such Contracts that may be canceled by the Company or unwritten, its Subsidiaries without material financial or other penalty upon notice of all of the following Contracts, agreements and arrangements with respect to the Seller:
ninety (a90) Contracts with respect to which Seller has any liability days or obligation involving more than $15,000.00, contingent or otherwiseless;
(biii) any Contract with a natural person either as an employee or an independent contractor (in each case, under which the Company or any of its Subsidiaries has continuing obligations as of the date hereof) that carries an aggregate annual base salary in excess of $150,000 per annum (excluding Contracts with respect to which Seller expects to receive paymentsfor “at-will” relationships or that are terminable by the Company or the applicable Subsidiary at its discretion, or incur costs or services, by notice of not more than 90 days or for a cost of less than $15,000.00 in any twelve-month period150,000);
(civ) Contracts that may extend for a term of more than one year after the Closing other than any vendor currently effective golden parachute, change-of-control or similar agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 with any current or former director, officer or employee of the Disclosure ScheduleCompany or any of its Subsidiaries;
(dv) all agreements with Suppliers with respect any Contract relating to which Seller has the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any liability of the Company’s share capital or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days other securities or less prior written notice without material liabilityany options, penalty warrants or premiumother rights to purchase or otherwise acquire any Ordinary Shares or other securities or options, warrants or other rights therefor, except for those Contracts conforming to the standard Contract under a Company Plan;
(evi) Contracts under which the amount payable by Seller is dependent on the revenue, income any collective bargaining or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller material Contract with any officerlabor organization, directorcouncil, managerunion, stockholderassociation or employees, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts in each case which are material to the Business, Company and the Acquired AssetsSubsidiaries taken as a whole;
(vii) any Contract with (A) any officer or director of the Company or any of their immediate family members (other than any Employee Plans or employment agreements), or (B) any “controlling shareholder” of the SellerCompany (as defined in the ICL);
(viii) any customer, client, sales representative, distributor or supply Contract that involves annual revenues or consideration, as applicable, in fiscal year 2020 in excess of $3,000,000, in each case other than purchase orders entered into in the ordinary course of business;
(ix) any Contract providing for (x) Government Grants from the IIA or any other Israeli Governmental Authority, which Government Grant is extended to support the Company’s research and development operations, or (y) Government Grants from any other Governmental Authority, in each case which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets are material to the extent not already listed Company and disclosed the Subsidiaries taken as a whole;
(x) any Contract for supply of goods or services to a Governmental Authority that involves consideration in fiscal year 2020 in excess of $100,000;
(xi) any Contract entered into after December 31, 2017 (A) relating to the disposition or lease (directly or indirectly) by the Company or any of its Subsidiaries of a material amount of assets other than in the ordinary course of business, (B) pursuant to which the items set forth above. All Company or any of its Subsidiaries will acquire or has acquired any material interest in or assets of any other Person (other than the foregoing Company or any of its Subsidiaries) or other business enterprise, in each case, for an amount in excess of $3,000,000 in the aggregate, other than in the ordinary course of business, or (C) for the acquisition or disposition of any business and such Contract contains any profit sharing arrangements or “earn-out” arrangements or other contingent payment obligations under which obligations are continuing;
(xii) any Contract (including any so called take-or-pay or keepwell agreements) under which the Company or any of its Subsidiaries has directly or indirectly guaranteed Indebtedness for borrowed money, liabilities or obligations of any other Person (other than a Subsidiary of the Company), in each case in excess of $250,000 (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(xiii) any Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries), each if any Liability is outstanding thereunder on the date hereof and is in excess of $150,000 (other than extensions of trade credit in the ordinary course of business consistent with past practice);
(xiv) any Contract granting any Person a right of first refusal or first negotiation with respect to any sale of substantially all of the Company's shares or assets;
(xv) any Contract imposing “standstill” obligations on the Company or any of its Subsidiaries;
(xvi) any Contract that contains a license in respect of Intellectual Property that is material to the business of the Company and its Subsidiaries taken as a whole (except for (A) licenses of commercially available, off-the-shelf, click-wrap or shrink-wrap Software and (B) licenses granted by the Company or any of its Subsidiaries in the ordinary course of business);
(xvii) any Contract that relates to the formation, creation, operation, management or control of any legal partnership or any joint venture entity pursuant to which the Company has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person or any material Contract involving the sharing of revenues, profits or losses by the Company or any of its Subsidiaries with any unaffiliated third party; and
(xviii) any Contract that involves or relates to Indebtedness for borrowed money or under which the Company or any of its Subsidiaries has issued any note, bond, debenture or other evidence of Indebtedness for borrowed money to, any Person (other than the Company or any of its Subsidiaries) or any other note, bond, debenture or other evidence of Indebtedness for borrowed money of the Company or any of its Subsidiaries (other than in favor of the Company or any of its Subsidiaries) (whether written incurred, assumed, guaranteed or unwritten)secured by any asset) outside the ordinary course of business, including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to in each case for a principal amount in excess of $1,000,000.
(b) Section 3.11(b) of the Purchaser true, complete, and correct copies Company Disclosure Letter contains a list of all Material Contracts. Each Contracts to which the Company or any of its Subsidiaries is a party as of the date of this Agreement.
(c) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Adverse Effect (i) each Material Contract is validvalid and binding on the Company (and/or each such Subsidiary of the Company party thereto) and, binding to the Knowledge of the Company, each other party thereto, and is in full force and effect and effect, enforceable against the Company or each such Subsidiary of the Company party thereto, as the case may be, in accordance with its terms. There , except that such enforceability (x) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally, and (y) is no event or condition which has occurred or exists which constitutes or whichsubject to general principles of equity, with or without notice(ii) neither the Company nor any of its Subsidiaries that is a party thereto, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller ornor, to the knowledge Knowledge of the SellerCompany, any other party thereto, is in material breach of, or could cause material default under, any such Material Contract, no event has occurred that with notice or lapse of time or both would or would be reasonably expected to constitute such a material breach or material default thereunder by the acceleration Company or any of its Subsidiaries, or, to the Knowledge of the Company, any obligation or loss of any rights of any other party thereto or are reasonably expected to contravene in any material respect, conflict in any material respect with, or result or give rise the Company or any of its Subsidiaries or any other Person the right to declare a material default or exercise any right of termination material remedy under, or cancellation thereof. To to materially accelerate the knowledge of the Sellermaturity or performance of, or to cancel, terminate or materially modify, any Material Contract, and (iii) none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations Company and the Company’s Subsidiaries has received written notice of any Material Contract and actual, alleged, possible or potential violation of, or failure to the knowledge of the Sellercomply with, no party to a Material Contract intends to terminate, accelerate, cancel any material term or materially change the terms requirement of any Material Contract.
Appears in 1 contract
Material Contracts. (a) Schedule 2.9 of the Disclosure Schedule 3.12(a) sets forth a true and complete and accurate list, in each case whether written or unwritten, list of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Seller Services, HM5000 Retained Business or Business and condition (financial or otherwise), results of operations, assets, liabilities, properties or commercial relationships of the Business, the Seller Services, HM5000 Retained Business or the Acquired Assets, and to which the Seller or the Seller, any of its Affiliates is a party or by which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing are bound (whether written or unwrittencollectively, "Material Contracts"), including any Contracts:
(i) for which the absence or termination of could have, individually or in 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 amendments those vendors or modifications theretosuppliers 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 existing environmental liabilities, violation of any environmental Laws or 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 purposes of conducting the Seller Services, HM5000 Retained Business or Business;
(x) which relate to all network services provided to Seller; and
(xi) which relate to any Leased Real Estate LeasesProperty. Prior to the date hereof, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The the Seller has furnished delivered to the Purchaser Buyer true, complete, complete and correct copies of each of the Material Contracts that are in written form and all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties material correspondence related thereto. .
(b) Each Material Contract is valid, binding and in full force and effect and is a legal, valid, binding 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 accordance with its termsgeneral and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). There is no event or condition which has occurred or exists which constitutes or whichNeither the Seller, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, nor to the knowledge of the Seller's Knowledge, any other party theretoto any Material Contract, is currently in breach of or in default in any material respect under, or could cause has improperly terminated any Material Contract, and there exists no condition or event which, after notice or lapse of time or both, would constitute any such breach, default 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 acceleration equivalent value in the applicable currency). 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 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 approvals from any obligation Persons are (i) required in connection with the execution, delivery or loss performance of this Agreement and 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 any rights of any party thereto or Material Contract remain in effect without modification after the transactions contemplated hereby and not give rise to any right to termination, cancellation, or acceleration or loss of termination any right or cancellation thereofbenefit 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"). To The Seller has obtained, 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, none except in the ordinary course of 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 parties to Seller or any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations current or former Affiliate of any Material Contract and to the knowledge 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 party 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 stop trading with or supplying the Seller, (ii) reduced, or indicated an intention to reduce, its trading with or provision of goods or services 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 Material Contract intends 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 trade with or supply the Seller, (y) reduce substantially its trading with or provision of goods or services to terminatethe Seller, accelerate, cancel or materially (z) change the terms and conditions on which it is prepared to trade with or supply the Seller. Seller has no Knowledge of any Material Contractfacts, conditions or events which might give rise to a claim by the Seller against any Significant Customer or Significant Vendor or any claim by a Significant Customer or Significant Vendor against the Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (At Track Communications Inc)
Material Contracts. Schedule 2.9 (a) Section 3.14(a) of the Seller Disclosure Schedule sets forth a complete and accurate listforth, in each case whether written or unwrittenas of the date of this Agreement, of all of the following Contracts (other than purchase orders and invoices) to which Seller is a party or by which it is bound or by which any of the Transferred Assets are bound or affected (each Contract so listed or required to be listed, and each of the Contracts to which Seller becomes a party or by which it becomes bound after the date of this Agreement, together with the Business IP Agreements, the “Material Contracts”):
(i) any Contract, agreements including any manufacturing, supply or distribution agreement Related to the Business and arrangements that (i) requires by its terms the payment or delivery of cash or other consideration by or to Seller in an amount in excess of $100,000 during the fiscal year ended December 31, 2022 or anticipated to be in excess of such amount during any fiscal year thereafter, or (ii) was not entered into in the ordinary course of business on the Seller’s standard form of manufacturing, supply or distribution agreement;
(ii) any joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization, research, development or other similar agreement Related to the Business;
(iii) any Contract with any Person (A) pursuant to which Purchaser, after the Closing Date, may be required to pay milestone payments, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, marketing, commercial manufacture or other similar occurrences, developments, activities or events with respect to the Seller:Products or any Intellectual Property used therein, or (B) under which Seller granted to any Person a right of first refusal, right of first negotiation, option to purchase, option to license, or any other similar rights with respect to the Products or any Intellectual Property used therein;
(aiv) all Contracts that require Seller to purchase or sell a stated portion of the requirements or outputs of the Business or that contain "take or pay" provisions;
(v) any Contract with any Governmental Entity that is Related to the Business;
(vi) any Contract for the lease of personal property Related to the Business which provides for payments to or by Seller (A) in any one case of $25,000 or more annually in the year ended December 31, 2022, (B) anticipated to exceed such amount during the year ending December 31, 2023 or (C) of $50,000 or more over the term of the Contract;
(vii) any Contract for any capital expenditure or leasehold improvement Related to the Business or relating to any Transferred Assets in any one case in excess of $50,000 in the year ended December 31, 2022 or anticipated to exceed such amount in the year ending December 31, 2023 or any such Contracts for any such expenditure or improvement in the aggregate exceeding $50,000 over the term of the Contract;
(viii) any Contract that (A) limits or purports to limit, the freedom of the Business (or Seller) to engage or compete in any line of business or with any Person or in any geographic area, or to hire or solicit to hire any Person, (B) contains exclusivity, “most favored nation” obligations or pricing notification obligations, or other similar restrictions to which the Business (or Seller) or any Transferred Assets are subject, (C) contains a right of renegotiation or termination upon a change of market conditions, or (D) contains any other provisions restricting or purporting to restrict the ability of Seller or the Business to sell, market, distribute, promote, manufacture, develop, commercialize, or test or research the Products, directly or indirectly through third parties;
(ix) any Contract that relates to the future acquisition or disposition of any assets or properties of the Business that would constitute Transferred Assets if held by Seller immediately prior to the Closing (whether by option, call right, merger, sale or purchase of stock, sale or purchase of assets or otherwise), other than (A) as contemplated by this Agreement or any Ancillary Agreement or (B) any non-disclosure or similar agreement entered into in connection with Seller’s process of selling the Business whose subject matter does not provide for any obligation to engage in any such acquisition or disposition; and
(x) all Contracts Related to the Business that provide for the indemnification of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(xi) all Contracts Related to the Business that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(xii) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements), and all termination and severance Contracts, which are Related to the Business and not cancellable without material penalty or without more than 30 days' notice;
(xiii) all powers of attorney with respect to the Business or any Transferred Asset;
(xiv) any collective bargaining Contract or other Contract with any labor organization, union or association relating to or affecting any Transferred Employees;
(xv) any Lease Related to the Business;
(xvi) any Contracts Related to the Business under which Seller (A) is granted a license to Intellectual Property from a third Person or (B) grants to any third Person a license to any Transferred IP, in each case, other than (x) Contracts with vendors or customers entered into in the ordinary course of business on the Seller’s standard form of customer or vendor agreement, and (y) Contracts with respect to which Seller has licenses for commercially-available or open source “off the shelf” or hosted software technology products providing for an aggregate purchase price (or license fees over the term of the license) fees that do not exceed $10,000;
(xvii) any liability Contract with a Key Customer or obligation involving more than $15,000.00, contingent Key Supplier; and
(xviii) all other Contracts that are material to the Transferred Assets or otherwise;the operation of the Business and not previously disclosed pursuant to this Section 3.14.
(b) Contracts with respect True, correct and complete copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) in effect as of the date hereof have been made available to which Purchaser in the Data Room. Each Material Contract in effect as of the date hereof is a legal, valid, binding and enforceable obligation of Seller expects and, to receive payments, or incur costs or servicesthe Knowledge of Seller, of more than $15,000.00 in any twelve-month period;each other counterparty thereto, subject to the Bankruptcy and Equity Exceptions.
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days in breach or less prior written notice without material liabilitydefault in the performance, penalty observance or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenuefulfillment of any obligation, income covenant, condition or other similar measure of Seller or term contained in any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to Material Contract in any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing respect. To Seller’s attachment or installation of fiber optic linesKnowledge, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which circumstance has occurred or exists which constitutes or whichthat, with notice or without noticelapse of time or both, would constitute an event of default by any other party under any Material Contract or result in a termination thereof or would cause or permit the happening acceleration or other changes of any event and/or right or obligation or the passage loss of time, could constitute a any benefit thereunder. Seller has not received notice that it is in breach or default or breach under any such Material Contract to which it is a party or by Seller which it is bound and there are no material disputes pending or, to the knowledge of the Seller’s Knowledge, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of threatened under any Material Contract.
Appears in 1 contract
Material Contracts. Schedule 2.9 (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(j)(i) of the Company Disclosure Schedule sets forth Letter, neither the Company nor any of its Subsidiaries is, as of the date hereof, a complete party to:
(A) any Contract that would be required to be filed by the Company as a "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(B) any Contract that (x) materially limits or otherwise materially restricts the ability of the Company or its Subsidiaries to engage or compete in any 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 another Person;
(C) any Contract under which the Company or its Subsidiaries has (1) licensed or been granted rights 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 material Company Intellectual Property, other than in the case of (1) and accurate list(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 the Company or its Subsidiaries could be required to purchase or sell, or otherwise acquire or transfer, as applicable, any material equity interests of any Person or to contribute material capital;
(E) any Contract containing "most favored nation," "exclusivity" or similar provisions, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business such Contracts that are not otherwise required to (1) may be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any cancelled without material liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty penalty to the Company or its Subsidiaries upon notice of ninety (3090) days or less prior written notice without material liabilityor (2) are immaterial to the Company and its Subsidiaries, penalty or premiumtaken as a whole;
(eF) Contracts under any Contract (other than the Existing Indentures) that prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of 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 (1) providing for the disposition or acquisition of capital stock or other equity interests or assets by the Company or any of its Subsidiaries in any case for consideration in excess of $1,000,000, to the extent the Company continues to have any indemnification or similar obligations outstanding thereunder or (2) pursuant to which the amount payable by Seller is dependent on the revenueCompany or any of its Subsidiaries will acquire any material ownership interest in, income or other similar measure of Seller or material assets of, any other Person;
(fH) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contractsany Contract pursuant to which the Company or any of its Subsidiaries has "earn-out" or other material contingent payment obligations;
(gI) Contractsany mortgages, instruments and arrangements indentures, guarantees, loans or credit agreements, security agreements, swaps, derivatives or hedging agreements or other Contracts relating to any Indebtedness the borrowing of money or extension of credit or other indebtedness (in each case, other than foreign exchange forward Contracts entered into in the guarantee thereofordinary course of business), in each case in excess of $20,000,000, other than (1) accounts receivables and payables in the ordinary course of business; (2) loans to Subsidiaries of the Company in the ordinary course of business; and (3) extensions of credit to customers in the ordinary course of business;
(hJ) Contracts and any Contract providing for cash severance payments in excess of $1,000,000 (other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Sellerthan those pursuant to which such severance payment is required by applicable Law);
(iK) Contracts any Contract that provides for the establishment or governance of a joint venture, partnership, limited liability company or other similar agreement with any third Person (it being understood that this clause (K) does not include commercial arrangements which place any limitation on where there is no joint ownership by the method Company and its counterparty of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsequity in a Person);
(jL) Contracts any Contract with a customer of the Company or other arrangements any of its Subsidiaries (1) under which require the Seller Company and its Subsidiaries generated revenue in excess of $10,000,000 in the aggregate for the fiscal year ended 2017 or (2) under which the Company and its Subsidiaries are expected to deliver services on a “fixed fee” or “not to exceed” basisgenerate revenue in excess of $10,000,000 in the aggregate for fiscal year 2018;
(kM) employment, severance, consulting, deferred compensation any Contract with a vendor or supplier (including outsourcing services) of the Company or any of its Subsidiaries (1) under which the Company and similar agreementsits Subsidiaries made payments in excess of $10,000,000 in the aggregate for the 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 aggregate for fiscal year 2018;
(lN) Contracts any Contract that is a collective bargaining agreement or other agreement with respect to mergers or acquisitionsany labor union, sales of securities or material assetsworks council, or investments by Sellerother labor organization;
(mO) Contracts any Contract with a Governmental EntitiesEntity that is a settlement, including but not limited to any franchise agreement, license agreementconciliation, or right similar agreement that imposes any material monetary or other material obligation upon the Company or its Subsidiaries after the date of way use agreementthis Agreement;
(nP) strategic alliance, co-marketing, joint development 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 similar agreements;(2) are expected to generate revenue in excess of $5,000,000 in the aggregate for fiscal year 2018; or
(oQ) all collective bargaining agreements any Contract that is between the Company or Contracts with its Subsidiaries and any union;
of their respective directors or officers or any Person beneficially owning five percent (p5%) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside more of the Ordinary Course outstanding Shares. Each such Contract described in clauses (A) through (Q) above of Business;
this Section 5.1(j)(i) (r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity and those Contracts that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation would be Material Contracts but for the exception of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material being filed as exhibits to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively Company Reports) is referred to herein as “a "Material Contracts”. The Seller has furnished Contract."
(ii) Each of the Material Contracts is valid and binding on the Company or its Subsidiaries and, to the Purchaser trueCompany's Knowledge, completeeach other party thereto and is in full force and effect, except for any scheduled expiration of such Contracts in accordance with their terms and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement except for such failures to be valid and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and or to be in full force and effect and enforceable that, individually or in accordance the aggregate with other such failures, are not reasonably expected to have a Company Material Adverse Effect. None of the Company, its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller Subsidiaries or, to the knowledge of the SellerCompany's Knowledge, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder is in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of default 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. The Company has made available to Parent true, correct and complete copies of each Material Contract, including all material amendments, waivers and changes thereto.
Appears in 1 contract
Material Contracts. Schedule 2.9 (a) As of the Disclosure Schedule sets forth a complete and accurate listdate of this Agreement, in each case whether written neither the Company nor any of its Subsidiaries is party to or unwrittenbound by any contract, of all of the following Contractsarrangement, agreements and arrangements with respect to the Sellercommitment or understanding that:
(ai) Contracts with respect to which Seller has any liability materially limits or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 otherwise materially restricts in any twelve-month period;
material respect the Company or any of its Subsidiaries (c) Contracts that may extend for a term of more than one year or, after the Closing other than any vendor agreement entered into Effective Time, the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller Surviving Corporation or any of its Subsidiaries or purportedly Parent or any of its Subsidiaries) from (A) engaging or competing in any material line of business, in any geographical location or with any Person, (B) selling any products or services of or to any other Person or in any geographic region or (C) obtaining products or services from any Person;
(fii) distribution, marketing, reseller, partner, sales, agency, independent sales agency includes any material “most favored nations” terms and referral contracts;
conditions (g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, with respect to pricing), any agreement material exclusive dealing arrangement, any material arrangement that contains grants any exclusivity, non-competition, non-solicitation, no-hire, material right of first refusalrefusal or material right of first offer or similar material right or that limits 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 “most favored nation” provisionsany of their respective Subsidiaries) to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business (excluding, in respect of each of the forgoing, customary joint operating agreements);
(jiii) Contracts is a joint venture, alliance or other arrangements which 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 Seller Company and its Subsidiaries to deliver services on a “fixed fee” or “not to exceed” basismake expenditures in excess of $100 million in the aggregate during the 12-month period following the date hereof;
(kiv) employmentis a loan, severanceguarantee of indebtedness or credit agreement, consultingnote, deferred compensation bond, mortgage, indenture or other binding commitment (other than those between the Company and similar agreementsits Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $50 million individually;
(lv) Contracts 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 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 immediately preceding fiscal year or with respect to mergers or acquisitionswhich the Company reasonably expects that it and its Subsidiaries will make payments associated with any Production Burden in any of the next three succeeding fiscal years that could, sales of securities or material assetsbased on current projections, or investments by Sellerexceed $100 million per year;
(mix) Contracts with Governmental Entities, including but not limited to any franchise is a transportation agreement involving the transportation of more than 100 MMcf (or the MMBtu equivalent) of Hydrocarbons per day (calculated on a yearly average basis);
(x) is a joint development agreement, license exploration agreement, or right acreage dedication agreement (excluding, in respect of way use agreement;each of the foregoing, customary joint operating agreements) 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; or
(nxi) strategic alliance, co-marketing, joint development is a settlement or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals agreement with any Governmental Entity;
(s) any agreements with any Authority or order or consent of a Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, Authority to which the Company or any other Seller owned of its Subsidiaries is subject involving future performance by the Company or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts any of its Subsidiaries which are is material to the BusinessCompany and its Subsidiaries, taken as a whole; (each such contract listed in Section 4.22 of the Acquired Assets, Company Disclosure Letter and any contract of the Company or the Seller, or which any of its Subsidiaries that is a reasonable purchaser would consider important in deciding whether or not material contract required to acquire the Acquired Assets be filed as an exhibit to the extent not already listed and disclosed Company 10-K pursuant to Item 601(b)(10) of Regulation S-K of the items set forth above. All the foregoing (whether written or unwritten)SEC, including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as a “Material ContractsContract”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contract).
Appears in 1 contract
Sources: Merger Agreement (Exxon Mobil Corp)
Material Contracts. Schedule 2.9 Except for this Agreement, Section 4.10(a) of the NIC Disclosure Schedule sets forth Letter contains a complete and accurate correct list, as of the date hereof, of each Contract described below in this Section 4.10(a) under which NIC or any NIC Subsidiary is a party or to which any of their respective properties or assets is subject, in each case whether written or unwrittencase, of all in effect as of the following Contractsdate hereof, agreements other than NIC Plans (each Contract of the type described in this Section 4.10(a), whether or not set forth on Section 4.10(a) of the NIC Disclosure Letter, being referred to herein as a “Material Contract”): (i) each Contract that limits in any material respect the freedom of NIC or any NIC Subsidiary to compete in more than one state with any Person or engage in any line of business or sell, supply, or distribute any product or service, or that otherwise has the effect of restricting NIC or any NIC Subsidiary from the development, marketing or distribution of products and arrangements with respect to the Seller:
(a) services, in more than one state, in each case, other than project-specific teaming agreements, Contracts with respect prime contractors or subcontractors, or similar Contracts entered into in the in the ordinary course of business; (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 which Seller has result in the receipt or making by NIC or any liability NIC Subsidiary of future payments in excess of $1,000,000 or obligation involving more than $15,000.00(B) earn-out, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive paymentspayment, or incur costs similar provisions requiring future payments by or services, 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 $15,000.00 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 twelverespect the operations or conduct of NIC or any NIC Subsidiary, in each case, that is material to NIC and its Subsidiaries, taken as a whole; (vi) each Contract, other than customer, supplier and vendor Contracts, not otherwise described in any other subsection of this Section 4.10(a) pursuant to which NIC or any NIC Subsidiary is obligated to pay, or entitled to receive, payments in excess of $1,000,000 in the 12-month period;
period following the date hereof; (cvii) Contracts any Contract that may extend for a term obligates NIC or any NIC Subsidiary to make any capital investment or capital expenditure outside the ordinary course of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course business and in excess of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
$1,000,000; (dviii) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and each Contract that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel Customer Agreement or materially change the terms of any a Material Contract.Supplier Agreement;
Appears in 1 contract
Material Contracts. Schedule 2.9 of the Disclosure Schedule (a) SCHEDULE 4.12(a) sets forth a complete list of all contracts, commitments and accurate list, in each case obligations (whether written or unwrittenoral) 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) each agreement of Tranzparts that requires payment or incurrence of Liabilities, or the rendering of services, by Tranzparts, subsequent to 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 following products or services to which Tranzparts is a party or by which Tranzparts is otherwise bound; and
(iv) all partnership, joint venture, teaming arrangements or other similar Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;agreements.
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 Tranzparts and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, Shareholders have made true and correct copies of all Material Contractssuch Scheduled Contracts available to Buyer. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Except as disclosed in SCHEDULE 4.12(B), each Scheduled Contract is valida legal, valid and binding obligation of Tranzparts, and, to the best knowledge of Tranzparts and in full force and effect and Shareholders, each other party thereto, enforceable against each such party thereto in accordance with its terms. There is no event terms except (i) as rights to indemnity hereunder may be limited by federal or condition which has occurred state securities laws or exists which constitutes the public policies embodied therein, (ii) as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or whichsimilar laws affecting the enforcement of creditors' rights generally, with or without notice, and (iii) as the happening remedy of any event and/or the passage specific performance and other forms of time, could constitute a default or breach under any such Material Contract by Seller or, injunctive relief may be subject to equitable defenses and to the knowledge discretion of the Sellercourt before which any proceeding therefor may be brought, and neither Tranzparts nor any other party theretothereto is in material default thereunder.
(c) SCHEDULE 4.12(c) sets forth a list (by name, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise address and persons to any right of termination or cancellation thereof. To the knowledge contact) of the Seller10 largest customers and 10 largest suppliers of Tranzparts for the 12-month period ended December 31, none 1995 together with the approximate dollar amount of sales to or purchases from such Persons during said period and a summary description of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contractproducts purchased.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aftermarket Technology Corp)
Material Contracts. Schedule 2.9 (a) Section 3.16 of the Company Disclosure Schedule Letter sets forth a true and complete and accurate list, in each case whether written or unwrittenas of the date of this Agreement, of all of the following Contracts, agreements and arrangements with respect to the Seller:
Contracts (ax) Contracts with respect to which Seller has the Company or any liability of its Subsidiaries is a party as of the date of this Agreement or obligation involving more than $15,000.00(y) by which the Company, contingent any of its Subsidiaries or otherwise;
any of the Company Assets are bound as of the date of this Agreement (b) Contracts with respect to which Seller expects to receive paymentsin each case, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller Company Benefit Plan or any Company Real Property Leases (other Person;
than the Material Company Real Property Leases)) (f) distributioncollectively, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) the “Material Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;”):
(i) Contracts that are filed (or other arrangements which place any limitation required to be filed) as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10)(i) of Regulation S-K under the method Securities Act or disclosed (or required to be disclosed) by the Company in a Current Report on Form 8-K since July 1, 2021 and before the date of conducting or scope this Agreement;
(ii) Contracts containing a covenant limiting the freedom of the Business includingCompany or any of its Subsidiaries to engage in any line of business in any geographic area or to compete with any Person, which restriction is material to the Company or any of its Subsidiaries, except for Contracts that are terminable on ninety (90) days’ or less notice without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, material penalty;
(iii) Contracts containing exclusivity or “most favored nation” provisionsobligations or similar restrictions binding on the Company or any of its Subsidiaries, which provision, obligation or restriction is material to the Company or any of its Subsidiaries, except for Contracts that are terminable on ninety (90) days’ or less notice without material penalty;
(jiv) Contracts other than with respect to a partnership that is wholly owned by the Company or any of its wholly owned Subsidiaries, any Contract that is a joint venture, partnership, limited liability company or other arrangements which require similar Contract, in each case, that is material to the Seller to deliver services on Company and its Subsidiaries, taken as a “fixed fee” or “not to exceed” basiswhole;
(kv) employmentContracts under which (A) any Person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed outstanding Liabilities of the Company or any of its Subsidiaries or (B) the Company or any Subsidiary of the Company has directly or indirectly guaranteed outstanding Liabilities of any Person (other than the Company or any Subsidiary of the Company) (in each case of clause (A) or (B), severancesuch guarantee obligation exceeds $5,000,000, consultingother than, deferred compensation and similar agreementsin each case, endorsements for the purpose of collection in the ordinary course of business);
(lvi) Contracts under which the Company or the applicable Subsidiary of the Company has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness to, any Person (other than the Company or any of its Subsidiaries), in any such case which the outstanding balance, individually, is in excess of $5,000,000;
(vii) Contracts under which the Company or the applicable Subsidiary of the Company, directly or indirectly, has agreed to make after the date of this Agreement any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries and other than extensions of trade credit in the ordinary course of business), in any such case which, individually, is in excess of $5,000,000;
(viii) Contracts that require the future acquisition from another Person or future disposition to another Person of assets or capital stock or other equity interest of another Person, and other Contracts that relate to an acquisition or similar transaction which contain “earn-out” obligations with respect to mergers the Company or acquisitionsany of its Subsidiaries, sales in any such case, after the date of securities or material assetsthis Agreement, or investments by Sellerwith a value in excess of $5,000,000;
(mix) Contracts with Governmental Entities, including but not limited any Contract under which the Company or the applicable Subsidiary of the Company licenses or sublicenses Intellectual Property from or to any franchise agreementthird party (other than (A) non-disclosure agreements, license agreement(B) non-exclusive licenses granted by the Company or a Subsidiary in the ordinary course of business or in connection with the provision or sale of any products or services, (C) licenses of commercially available software or other technology granted to the Company or a Subsidiary, or right of way use agreement(D) licenses to open source, public or freeware software or other materials (collectively, “Non-Material Licenses”)), in each case, which Contract is material to the Company and its Subsidiaries, taken as a whole;
(nx) strategic allianceany Contract that is with (A) each of the ten (10) largest customers of the Company and its Subsidiaries, co-marketingtaken as a whole, joint development or similar agreementsdetermined on the basis of actual revenue received by the Company and its Subsidiaries during the fiscal year ended June 30, 2021 and (B) each of the ten (10) largest vendors, determined on the basis of actual amounts paid by the Company and its Subsidiaries, taken as a whole, during the fiscal year ended June 30, 2021;
(oxi) all collective bargaining agreements or Contracts with (other than this Agreement) providing for indemnification (including any union;
(pobligations to advance funds for expenses) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course current or former directors or officers of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, the Company or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)of its Subsidiaries; and
(txii) other agreements Contracts that by their terms are reasonably expected to result in future payments to or by the Company in excess of $10,000,000 per annum, except for Contracts which that are terminable on ninety (90) days’ or less notice without material penalty.
(b) The Company has made available to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser Parent true, complete, correct and correct complete copies of all Material Contracts, including any amendments thereto (except with such redactions as may be clearly marked on such copies). Each Material Contract sets forth is, subject to the entire Enforceability Exceptions, a valid and binding agreement and understanding between of the Seller and Company or its applicable Subsidiary and, to the Knowledge of the Company, the other parties thereto. Each Material Contract , and is valid, binding and in full force and effect and enforceable in accordance with its termsterms (other than to the extent that any Material Contracts have expired or been terminated in accordance with their terms after the date of this Agreement), except where failure to be valid and binding or in full force or effect would not reasonably be expected to have a Company Material Adverse Effect. There is no event or condition which has occurred or exists which constitutes or which, with or without noticeExcept as would not reasonably be expected to have a Company Material Adverse Effect, the happening Company and each of any event and/or the passage of timeits Subsidiaries, could constitute a default or breach under any such Material Contract by Seller orand, to the knowledge Knowledge of the SellerCompany, each other party thereto, is in compliance with its performance obligations under each Material Contract. None of the Company, its applicable Subsidiary and, to the Knowledge of the Company, any other party thereto, is in material breach or could cause default under any such Material Contract, and no event has occurred that with or without notice, lapse of time or both, would constitute or result in a material breach or default by the acceleration of any obligation or loss of any rights of any party thereto or give rise Company, its applicable Subsidiary or, to any right of termination or cancellation thereof. To the knowledge Knowledge of the SellerCompany, none of the parties any other party thereto, in each case, except as would not reasonably be expected to any have a Company Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractAdverse Effect.
Appears in 1 contract
Sources: Merger Agreement (CDK Global, Inc.)
Material Contracts. Schedule 2.9 (a) Except as set forth in Section 3.19(a) of the Company Disclosure Schedule sets forth and in the Company SEC Documents, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a complete and accurate list, in each case whether written party to or unwritten, of all bound by (other than any of the following Contracts, agreements solely between the Company and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has its wholly-owned Subsidiaries or solely between any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelvewholly-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;owned Subsidiaries):
(i) Contracts any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of 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 the right or ability of the Company or any of its Subsidiaries to compete with any other person, solicit any client or customer, acquire or dispose of the securities of another person, or any other provision that materially restricts the conduct of any line of business by the Company or its Subsidiaries (or that following the Closing will materially restrict the ability of Parent or its Subsidiaries to engage in any line of business) or (B) (1) 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 (2) contains “most favored nation” or similar covenants, obligations or other arrangements which place agreements;
(iv) any limitation on the method of conducting or scope Collective Bargaining Agreement;
(v) any agreement relating to Indebtedness of the Business including, without limitation, Company or any agreement of its Subsidiaries having an outstanding principal amount in excess of $1,000,000;
(vi) any Contract that contains grants any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, right of first offer or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts right with respect to mergers or acquisitions, sales of securities or material any assets, rights or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity properties that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the BusinessCompany or its Subsidiaries, taken as a whole;
(vii) any Contract entered into after January 1, 2011 that provides for the Acquired Assetsacquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) and with any outstanding obligations or liabilities as of the date of this Agreement that are material to the Company and its Subsidiaries, taken as a whole (including any such Contract which has been completed but for which any obligations or liabilities of either party (including for indemnification) remain outstanding);
(viii) any joint venture, partnership or limited liability company agreement or other similar Contract entered into after January 1, 2011 relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(ix) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries (i) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (ii) to make loans to the Company or any of its Subsidiaries or (iii) to grant Liens on the property of the Company or any of its Subsidiaries;
(x) any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in excess of $1,000,000 in, any person (other than the SellerCompany or any of its Subsidiaries), other than loans and advances to employees of the Company or any of its Subsidiaries in the ordinary course of business;
(xi) any Contract (A) granting the Company and/or one of its Subsidiaries any right to use any material third party Intellectual Property (other than commercially-available, non-customized software licenses with annual fees of less than or equal to $500,000), (B) permitting any third person to use, enforce or register any Intellectual Property owned by the Company or its Subsidiaries, including any license agreements (other than non-exclusive licenses granted to customers in the ordinary course of business that are, in all material respects, on the Company’s or its Subsidiaries’ standard form), coexistence agreements and covenants not to ▇▇▇ or (C) restricting the right of the Company or its Subsidiaries to use or register any Intellectual Property owned by the Company or its Subsidiaries;
(xii) any Contract (1) that by its terms calls for the payment of more than $5,000,000 by the Company and its Subsidiaries in any year over the life of such Contract or (2) to which any Top Supplier is a reasonable purchaser party;
(xiii) any Contract (1) that involved the receipt of more than $10,000,000 in revenue by the Company and its Subsidiaries in the fiscal year ending December 31, 2013 or that is expected to result in the receipt of such amount by the Company and its Subsidiaries in the fiscal year ending December 31, 2014 or (2) to which any Top Customer is a party;
(xiv) any Contract that provides for any standstill or similar obligations to which the Company or any Company Subsidiary is subject or a beneficiary thereof, which is material to the Company and Company Subsidiaries taken as a whole (or, following the consummation of the transactions contemplated hereby, would consider important be material to Parent or any Parent Subsidiary, including the Surviving Corporation or the Surviving Company) (provided that the Company shall not be required to list the parties to any such agreements to the extent prohibited by confidentiality agreements existing prior to August 18, 2014); or
(xv) any Contract that is material to the business of the Company and the Company Subsidiaries, taken as a whole, that would or would reasonably be expected to prevent, materially delay or impair the consummation of the transactions contemplated hereby. All contracts of the types referred to in deciding clauses (i) through (xv) above (whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All on Section 3.19 of the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses Company Disclosure Schedule) are sometimes collectively referred to herein as “Company Material Contracts”. .” The Seller Company has furnished made available to Parent or its Representatives prior to the Purchaser true, complete, date of this Agreement a complete and correct copies copy of all Material Contracts. Each each Company Material Contract sets forth as in effect on the entire agreement and understanding between date of this Agreement.
(b) Neither the Seller and Company nor any Subsidiary of the other parties thereto. Each Company is in breach or violation of or default in any respect under the terms of any Company Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orand, to the knowledge of the SellerCompany, any no other party thereto, to any Company Material Contract is in breach or could cause violation of or default in any respect under the acceleration terms of any obligation Company Material Contract and, to the knowledge of the Company, no event has occurred or loss not occurred through the Company’s or any of its Subsidiaries’ action or inaction or through the action or inaction of any rights third party, that with notice or the lapse of time or both would constitute a breach or violation of or default under the terms of any party thereto Company Material Contract, in each case except as has not had and would not reasonably be expected to have, individually or give rise to any right of termination or cancellation thereofin the aggregate, a Material Adverse Effect on the Company. To the knowledge of the SellerCompany, none each Company Material Contract (i) is a valid and binding obligation of the parties Company or the Subsidiary of the Company that is party thereto and of each other party thereto, and (ii) is in full force and effect, subject to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respectsthe Enforceability Exceptions. There are no disputes pending renegotiations of or, to the Company’s knowledge, threatened with respect to any Company Material Contract and to neither the knowledge Company nor any of its Subsidiaries has received any written notice of the Seller, no intention of any other party to a Company Material Contract intends to terminateterminate for default, accelerate, cancel convenience or materially change the terms of otherwise any Company Material Contract, nor to the Company’s knowledge, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
Appears in 1 contract
Sources: Merger Agreement (Conversant, Inc.)
Material Contracts. (a) Section 4.17(a) of Alpha Disclosure Schedule 2.9 lists, and Alpha has made available to Foundation prior to the date of this Agreement, true, correct and complete copies of, any of the Disclosure Schedule sets forth following Contracts to which Alpha or any of its Subsidiaries is a complete and accurate listparty or by which Alpha, any of its Subsidiaries or any of their respective assets is bound, as of the date hereof:
(i) that would be required to be filed by Alpha as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by Alpha on a Current Report on Form 8-K;
(ii) that contains covenants that limit the ability of Alpha or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of the Surviving Corporation or any of its Affiliates) to 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 whether written or unwrittencase, of all of the following Contracts, agreements and arrangements with respect that could reasonably be expected to be material to the Seller:business of Alpha and its Subsidiaries, taken as a whole;
(aiii) Contracts with respect that relates to a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the 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 direct or indirect wholly-owned Subsidiary of Alpha) or pursuant to which Seller Alpha or any of its Subsidiaries has any liability or an obligation involving more than $15,000.00, (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(biv) Contracts 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 the business of Alpha and its Subsidiaries, taken as a whole;
(v) 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 respect which the aggregate actual or contingent obligations of Alpha and its Subsidiaries under such Contract are greater than $10,000,000;
(vi) under which (A) to which Seller expects to receive paymentsthe knowledge of Alpha, any Person has directly or indirectly guaranteed any liabilities or obligations of Alpha or its Subsidiaries (other than any such guarantees by Alpha or its Subsidiaries), in case of each such liability or obligation, in an amount in excess of $5,000,000, or incur costs (B) Alpha or services, any of more its Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person (other than Alpha or any of its Subsidiaries);
(vii) for the 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 $15,000.00 50,000,000 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 would reasonably be expected to exceed $50,000,000 in any twelve-month period;
(cviii) Contracts that may extend for a under which (x) the aggregate amounts to be paid by Alpha and its Subsidiaries over the remaining term of more than one year after such Contract would reasonably be expected to exceed $10,000,000 in any twelve-month period or (y) the Closing aggregate amounts to be received 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, in each case, other than any vendor agreement entered into (1) the Ordinary Course Alpha Material Contracts described in Section 4.17(a)(iv) or 4.17(a)(vii) and (2) purchase orders for the purchase of Business that are not otherwise required to be disclosed on Schedule 2.9 goods or services in the ordinary course of the Disclosure Schedulebusiness;
(dix) all agreements with Suppliers with respect that relates to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;an Alpha Interested Party Transaction; or
(ex) Contracts under which that would or would reasonably be expected to prevent or materially delay Alpha’s ability to consummate the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness Merger or the guarantee thereof;
(h) Contracts and other arrangements transactions contemplated by this Agreement. Each Contract of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
the type described in clauses (i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
through (jx) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively is referred to herein as an “Alpha Material ContractsContract.”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts.
(b) Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Alpha Material Contract is validvalid and binding on Alpha and any Subsidiary of Alpha that is a party thereto and, binding to the knowledge of Alpha, each other party thereto and is in full force and effect and enforceable in accordance with its termseffect. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Alpha Material Contract by Seller Alpha or any of its Subsidiaries or, to the knowledge of the SellerAlpha, by any other party theretoparty, and no event has occurred that with the lapse of time or could cause the acceleration giving of notice or both would constitute a default thereunder by Alpha or any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Sellerits Subsidiaries or, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of Alpha, by any other party, in each case except as would not have or reasonably be expected to have, individually or in the Selleraggregate, no an Alpha Material Adverse Effect.
(c) Neither Alpha nor any of its Subsidiaries is party to a Material any Contract intends that prohibits Alpha from providing to terminate, accelerate, cancel or materially change Foundation the terms of any Material Contractinformation described in Section 5.4(c).
Appears in 1 contract
Material Contracts. Schedule 2.9 (a) Except as set forth in Section 3.10(a) of the Company Disclosure Schedule 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 in Section 3.10(a) of the Company Disclosure Letter (and, solely with respect to Section 3.10(a)(i), except to the extent previously included as exhibits to reports previously filed by the Company with the SEC), neither the Company nor any Subsidiary is party to any of the following (each, together with the Contracts identified in Section 3.10(b) of the Company Disclosure Letter, a “Company Material Contract”):
(i) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC);
(ii) any Contract under which it has outstanding indebtedness for money borrowed or guaranteed indebtedness for money borrowed of any Person;
(iii) any Contract that (A) restricts it from participating or competing in any line of business, market or geographic area, or any therapeutic area, class of drugs, any particular drug or any mechanism of action, (B) restricts the development, manufacture, marketing or distribution of any product; or (C) grants any exclusive rights of development, manufacture, marketing, sale, distribution, importation, exportation or 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 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 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, in each case whether written or unwritten, list of all material Contracts to which the Company or any of its Subsidiaries is a party as of the following date hereof or by which they are bound relating to the research, development, distribution, training, sale, license, marketing and supply of materials or components for, and manufacturing by third parties of, each Drug Product, and the Company has made available to Buyer true and complete copies of all such Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 as currently in any twelve-month period;effect.
(c) All Company Material Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 valid and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and are in full force and effect and enforceable against the Company or such Subsidiary in accordance with its their respective terms. There is no event , except as to the effect, if any, of (i) applicable bankruptcy or condition which has occurred or exists which constitutes or whichother similar laws affecting the rights of creditors generally, with or without notice(ii) rules of Law governing specific performance, injunctive relief and other equitable remedies and (iii) to the extent applicable, the happening enforceability of provisions regarding indemnification in connection with the sale or issuance of securities. Neither the Company nor any of its Subsidiaries is in material violation or breach of or default under, or has received notice of any event and/or the passage of time, could constitute a default material violation or breach of or default under, any such Company Material Contract. To the Knowledge of the Company, no other party to a Company Material Contract is in material violation or breach of or default under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Company Material Contract.
Appears in 1 contract
Material Contracts. Schedule 2.9 Except for Contracts filed as exhibits to the Company SEC Reports or as disclosed in Section 3.15 of the Company Disclosure Schedule sets forth Letter, as of the date of this Agreement, (i) neither the Company nor any of its Subsidiaries is a complete party to, and accurate list(ii) none of the Company, any of its Subsidiaries or any of their respective properties or assets are bound by (in each case whether written or unwrittencase, of all other than any Company Employee Benefit) (collectively, the Contracts of the following type described in clauses (a) through (j) below are referred to herein as, the “Material Contracts, agreements and arrangements with respect to the Seller:”):
(a) Contracts with respect any Contract that is or would be required to which Seller has any liability be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act or obligation involving more than $15,000.00, contingent or otherwisedisclosed by the Company in a Current Report on Form 8-K since the Balance Sheet Date and before the date hereof;
(b) Contracts any Contract (excluding any Contract under which the Company or any of its Subsidiaries grant a license with respect to which Seller expects any Owned Intellectual Property) containing a covenant limiting the freedom of the Company or any of its Subsidiaries to receive paymentsengage in any line of business, to carry on business in any geographic region, to offer any product or service or operate within any industry or commercial field, or incur costs or servicesto compete with any Person to the extent such limitation is material to the conduct of the business of the Company and its Subsidiaries, of more than $15,000.00 in any twelve-month periodtaken as a whole, as presently conducted;
(c) Contracts any Contract under which the Company or the applicable Subsidiary has granted to a third party any exclusive license with respect to any Owned Intellectual Property that may extend for contains a term minimum guaranteed royalty obligation (or other comparable payment guarantee) of more than one $250,000 in royalties or other fees for the calendar year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Scheduleended December 31, 2017;
(d) all agreements with Suppliers with respect any limited liability company agreement, joint venture or other similar agreement or arrangement relating to which Seller has the formation, creation, operation, management or control of any liability partnership or obligation involving more than $15,000.00 and joint venture that is not terminable by Seller on thirty (30) days material to the business of the Company or less prior written notice without material liabilityany of its Subsidiaries, penalty other than any such limited liability company, partnership or premiumjoint venture that is a Subsidiary of the Company;
(e) Contracts any Contract under which (i) any Person (other than the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller Company or any of its Subsidiaries) has directly or indirectly guaranteed Liabilities of the Company or any of its Subsidiaries or (ii) the Company or any Subsidiary has directly or indirectly guaranteed Liabilities of any Person (other Personthan the Company or any Subsidiary) (in each case of (i) and (ii), which guarantee obligation exceeds $250,000, other than, in each case, endorsements for the purpose of collection in the ordinary course of business);
(f) distributionany Contract under which the Company or the applicable Subsidiary has borrowed any money from, marketingor issued any note, resellerbond, partnerdebenture or other evidence of indebtedness to, salesany Person (other than the Company or any of its Subsidiaries), agencyin any such case which the outstanding balance, independent sales agency and referral contractsindividually, is in excess of $250,000;
(g) Contracts, instruments and arrangements any Contract (other than among consolidated Subsidiaries of the Company) relating to any Indebtedness interest rate, currency or the guarantee thereofcommodity derivatives or hedging transactions involving an amount in excess of $250,000;
(h) Contracts any Contract under which the Company or the applicable Subsidiary, directly or indirectly, has agreed to make any advance, loan, extension of credit or capital contribution to, or other investment in, any Person that will be outstanding after the date hereof (other than the Company or any of its Subsidiaries and other arrangements than extensions of Seller with trade credit in the ordinary course of business), in any officersuch case which, directorindividually, manager, stockholder, equity holder, or Affiliate is in excess of Seller$250,000;
(i) Contracts or other arrangements which place any limitation on Contract that prohibits the method pledging of conducting or scope capital stock of the Business includingCompany or any Subsidiary of the Company or prohibits the issuance of guarantees by any Subsidiary of the Company, without limitationin each case, other than pursuant to any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsjoint venture;
(j) Contracts any Contract that requires the future acquisition from another Person or future disposition to another Person of assets or capital stock or other arrangements equity interest of another Person and any other Contract that relates to an acquisition or similar transaction which require the Seller to deliver services on a “fixed fee” contain indemnities or “not earn-out” obligations with respect to exceed” basis;the Company or any of its Subsidiaries, in any such case, that remain in effect and have a value in excess of $250,000; and
(k) employmentany Contract for indemnification, severance, consulting, deferred compensation advancement of expenses and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales exculpation of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts liability with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans current or other arrangements of Seller outside former director or executive officer of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, Company or any other Seller owned of its Subsidiaries. Except as has not had and would not reasonably be expected to have, individually or controlled facilities or equipment to such entity’s poles or conduits in the aggregate, a Company Material Adverse Effect: (“Pole Attachment Agreements”); and
(ti) other agreements or Contracts which are material each Material Contract is, subject to the BusinessEnforceability Exceptions, a valid and binding agreement of the Acquired AssetsCompany or its applicable Subsidiary and, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to Knowledge of the items set forth above. All the foregoing (whether written or unwritten)Company, including all amendments or modifications each other party thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable against the Company or its Subsidiary and, to the Knowledge of the Company, each other party thereto, in accordance with its terms. There , (ii) none of the Company, its applicable Subsidiary or, to the Knowledge of the Company, any other party thereto, is in breach of or default under any such Material Contract, (iii) to the Knowledge of the Company, no party to any Material Contract has committed or failed to perform any act under and no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening lapse of any event and/or the passage of timetime or both, could would constitute a default default, require consent or breach under any such Material Contract by Seller or, to result in the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto a material benefit or give rise to any right of termination termination, amendment, acceleration or cancellation thereof. To cancellation, under the knowledge provisions of such Material Contract, and (iv) neither the Seller, none Company nor any of the parties to its Subsidiaries has received written notice from any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no other party to a Material Contract intends to terminateof the existence of any event, accelerateor condition which constitutes, cancel or, after notice or materially change lapse of time or both, will constitute, a default on the terms part of the Company or any of its Subsidiaries under any Material Contract. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof, including any material amendments thereto.
Appears in 1 contract
Material Contracts. Schedule 2.9 (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 sets forth a complete and accurate listSchedule, in each case whether written or unwritten, of all as of the following Contractsdate of this Agreement, agreements and arrangements with respect neither the Company nor any of its Subsidiaries is a party to the Selleror bound by:
(ai) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise“material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(bii) Contracts with respect 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 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 Rule 16a-1 of the Exchange Act), on the other hand, including (but not limited to) any Contract pursuant to which Seller expects to receive payments, the Company or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 Subsidiary of the Disclosure Schedule;
(d) all agreements with Suppliers with respect Company has an obligation to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any indemnify such officer, director, manageraffiliate or family member, stockholder, equity holder, or Affiliate of Sellerbut not including any Company Benefit Plans;
(iiii) Contracts or other arrangements which place any limitation Contract that imposes any restriction on the method of conducting right or scope ability of the Business includingCompany 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 the Company and its Subsidiaries) to compete) with any other person in any line of business, without limitationtherapeutic 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 exclusivity, non-competition, non-solicitation, no-hire, 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 “most favored nation” provisionssimilar right to a third party (including stockholders of the Company) with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(jx) Contracts any Contract that provides for the acquisition or disposition of any assets (other arrangements which require than acquisitions or dispositions of assets in the Seller to deliver services on a “fixed fee” ordinary course of business) or “not to exceed” basis;
business (kwhether by merger, sale of stock, sale of assets or otherwise) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside outstanding obligations as of the Ordinary Course date of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity this Agreement that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the BusinessCompany or any of its Subsidiaries;
(xi) (A) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the Acquired Assetsformation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries, and (B) any strategic alliance, collaboration, co-promotion or research and development project Contract, which, in the case of clause (B), is material to the Company and its Subsidiaries, taken as a whole;
(xii) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries (A) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (B) to make loans to the Company or any of its Subsidiaries, or (C) to grant liens on the Sellerproperty of the Company or any of its Subsidiaries;
(xiii) any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person in excess of $1,000,000 individually or $5,000,000 in the aggregate in the next twelve (12) months;
(xiv) any settlement agreement (A) involving more than $50,000 or (B) not entered into in the ordinary course of business, 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, other than licenses in respect of commercially available software, (B) pursuant to which a reasonable purchaser would consider important 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) Intellectual Property directly related to the Lead Product Candidates, or (ii) material Intellectual Property (other than Intellectual Property covered by clause (B)(i)), in deciding each case that is owned by the Company or its Subsidiaries, including any license agreements, coexistence agreements and covenants not to ▇▇▇ or (C) restricting the 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 to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All on Section 4.20 of the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses Company Disclosure Schedule) are sometimes collectively referred to herein as “Company Material Contracts”. The Seller .” Except as stated otherwise in Section 4.20 of the Company Disclosure Schedule, the Company has furnished made available to Parent prior to the Purchaser true, complete, date of this Agreement a complete and correct copies copy of all Material Contracts. Each each Company Material Contract sets forth as in effect on the entire agreement and understanding between date of this Agreement.
(b) Neither the Seller and Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other parties thereto. Each party to any Company Material Contract is validin breach of or default under the terms of any Company Material Contract and, binding and in full force and effect and enforceable in accordance with its terms. There is since December 31, 2012, no event or condition which has occurred or exists which constitutes not occurred through the Company’s or which, with any of its Subsidiaries’ action or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller inaction or, to the knowledge of the SellerCompany, any other party thereto, through the action or could cause the acceleration inaction of any obligation third party, that with notice or loss the lapse of time or both would constitute a breach of or default under the terms of any rights Company Material Contract, in each case, except as has not had and would not, 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) each Company Material Contract is a valid and binding obligation of any the Company or the Subsidiary of the Company that is party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Sellerand, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the SellerCompany, of each other party thereto, and is in full force and effect, subject to the Enforceability Exceptions; (ii) there are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract; and (iii) neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to a any Company Material Contract intends to terminateterminate for default, accelerate, cancel convenience or materially change the terms of otherwise any Company Material Contract.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Alexion Pharmaceuticals Inc)
Material Contracts. Schedule 2.9 (a) Section 3.16(a) of the Company Disclosure Schedule Letter sets forth forth, as of the date of this Agreement, a true and complete list of each of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their assets or businesses are bound (and accurate listany material amendments, supplements and modifications thereto):
(i) all Contracts concerning the establishment or operation of a legal partnership, joint venture or multi-member limited liability company;
(ii) all stockholders’, investors rights’, registration rights or similar Contracts, agreements or arrangements;
(iii) all hedging, swap, derivative or similar Contracts;
(iv) all Contracts, excluding Lease Agreements, requiring capital expenditures by the Company or any of its Subsidiaries after the date hereof in an amount in excess of $50,000 annually;
(v) all sponsorship, agent, management, marketing, merchandising, broadcast rights, endorsement, branding, sports betting or similar Contracts in an amount in excess of $50,000;
(vi) all Contracts pursuant to which a third party has licensed or granted the Company or any of its Subsidiaries any license or right to exploit any Intellectual Property other than (1) non-exclusive licenses for any generally commercially available products, services or Software made available on a license basis or a software-as-a service basis or (2) Free or Open Source Software licenses;
(vii) all Contracts pursuant to which the Company or any of its Subsidiaries has granted or provided any third party any license or right to exploit any Company Intellectual Property or Company Offerings (including rights to use, distribute or resell any Company Offerings) or has agreed to or is required to provide or perform any services related to any Company Offerings, other than non-disclosure Contracts entered into in the ordinary course of business consistent with past practice that do not contain an express license to any Company Owned Intellectual Property other than the use of the information and content disclosed thereunder for the limited purpose stated therein;
(viii) all Contracts containing a grant by the Company or any of its Subsidiaries of any immunity, release, or covenant not to sue or not to assert claims, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts any Company Owned Intellectual Property, including any concurrent use agreement, settlement agreement, pre-rights declaration or co-existence agreement with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwiseCompany Owned Intellectual Property;
(bix) all Contracts the primary purpose of which is the development of any Intellectual Property, independently or jointly, by or for the Company or any of its Subsidiaries, excluding Contracts with respect employees and contractors of the Company or any of its Subsidiaries entered into in the ordinary course of business consistent with past practice and pursuant to which Seller expects a form of agreement made available to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month periodthe Buyer Parties;
(cx) all Contracts that may extend for the sale, lease or sublease of any Owned Real Property or for the operation of a term third-party branded hotel on any parcel of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure ScheduleOwned Real Property or Leased Real Property (including hotel franchise agreements and hotel management agreements);
(dxi) all lease agreements with Suppliers with respect of the Company or any of its Subsidiaries that pertain to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty each parcel of Leased Real Property (30) days or less prior written notice without material liabilityeach, penalty or premiuma “Lease Agreement”);
(exii) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Personall Labor Agreements;
(fxiii) distributionall plans or Contracts providing for (A) the employment of any employee of the Company or any of its Subsidiaries that cannot be terminated by the employer at will at any time with 30 days’ notice or less, marketing(B) the engagement of any individual contractor of the Company or any of its Subsidiaries that cannot be terminated by the Company or its applicable Subsidiary at will at any time with 30 days’ notice or less, reselleror (C) payment of any change in control or transaction bonuses, partnerretention bonuses, salesor severance benefits, agencyor annualized base cash compensation in excess of $100,000, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness employee or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope independent contractor of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, Company or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contract.Subsidiaries;
Appears in 1 contract
Sources: Agreement and Plan of Merger (Hall of Fame Resort & Entertainment Co)
Material Contracts. (a) Schedule 2.9 of the Disclosure Schedule 3.13(a) sets forth a complete and accurate list, in each case whether written or unwritten, list of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has a member of the Company Group is a party or by which a member of the Company Group is bound (and any liability or obligation involving more than $15,000.00amendments, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive paymentssupplements and modifications thereto), or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend except for a term of more than one year after the Closing other than any vendor agreement purchase orders and sales orders entered into in the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
and excluding any Company Plan (d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilityeach, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;a “Material Contract”):
(i) Contracts any collective bargaining agreement or other arrangements which place Contract with any limitation on the method of conducting labor organization, works council, or scope union or association representing employees of the Business includingCompany Group;
(ii) any Contract or covenant not to compete or other Contract restricting the development, without limitationmanufacture, marketing or distribution of the products and services of any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right member of first refusalthe Company Group, or Contract which provides for “most favored nation” provisions”, exclusivity or other such terms, or any Contract that contains any restrictions or requirements with respect to purchase or sale volumes;
(jiii) any Contract with (A) any Seller or any current or former Related Person of any Seller or (B) (other than those Contracts consistent in all material respects with the Company’s standard form agreements made available to Purchaser before the date hereof) any current or other arrangements former officer, director or employee of the Company, a Subsidiary of the Company, any Seller or any current or former Related Person of any Seller; ACTIVE 274341277
(iv) any lease, sublease or similar Contract with any Person under which require any member of the Seller Company Group is a lessor or sublessor of, or makes available for use to deliver services on a “fixed fee” or “not to exceed” basisany Person, any Leased Real Property;
(kv) employmentany (A) continuing Contract for the future purchase of materials, severancesupplies or equipment, consulting(B) management, service, consulting or other similar Contract or (C) advertising Contract, in any such case that has an aggregate future payment obligation to any Person in excess of $250,000 in fiscal year 2022 (unless terminable by the member of the Company Group without payment or penalty upon no more than 60 days’ notice);
(vi) any Contract pursuant to which any Person has granted any member of the Company Group a license, covenant not to ▇▇▇ or right under or with respect to any Intellectual Property, other than (A) licenses for Off-the-Shelf Software and (B) non- exclusive licenses that are merely incidental to the transaction contemplated in the Contract;
(vii) any Contract pursuant to which any member of the Company Group licenses any Owned Intellectual Property to a third party, other than (A) non-exclusive licenses granted to end users in the Ordinary Course of Business and (B) non-exclusive licenses that are merely incidental to the transaction contemplated in the Contract;
(viii) any Contract under which any member of the Company Group has borrowed any money from, or issued any note, bond, debenture or other evidence of Indebtedness for borrowed money to, any Person (other than another member of the Company Group) or any other note, bond, debenture or other evidence of Indebtedness for borrowed money of any member of the Company Group (other than in favor of another member of the Company Group);
(ix) any Contract (including any so called take-or-pay or keepwell agreements) under which (A) any Person including any member of the Company Group, has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any member of the Company Group or (B) any member of the Company Group has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person, including any other member of the Company Group (in each case other than endorsements for the purpose of collection in the Ordinary Course of Business);
(x) any Contract under which any member of the Company Group has, directly or indirectly, made any outstanding advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than any member of the Company Group) in excess of $100,000;
(xi) any Contract granting a Lien (other than a Permitted Lien) upon any Company property or any other asset;
(xii) any Contract (A) providing for indemnification of any Person with respect to liabilities relating to any current or former business of any member of the Company Group or any predecessor Person outside the Ordinary Course of Business, (B) pursuant to which any member of the Company Group is or may be required to make ACTIVE 274341277 any “earn out”, deferred compensation and or similar agreementspayments or (C) relating to any completed material business acquisition by any member of the Company Group since the Relevant Date or pursuant to which any member of the Company Group is subject to continuing obligations;
(lxiii) Contracts with respect to mergers any Contract (including a purchase order), involving payment by any member of the Company Group of more than $250,000 in fiscal year 2021 (unless terminable by the member of the Company Group without payment or acquisitions, sales of securities or material assets, or investments by Sellerpenalty upon no more than 60 days’ notice);
(mxiv) Contracts with Governmental Entities, any Contract (including but not limited a sales order) involving the obligation of any member of the Company Group to any franchise agreement, license agreement, deliver products or right services for payment of way use agreementmore than $250,000 in fiscal year 2021 (unless terminable without payment or penalty upon no more than 60 days’ notice);
(nxv) strategic alliance, co-marketing, joint development any Contract for the sale of any material asset of any member of the Company Group other than in the Ordinary Course of Business or similar agreements;
(o) all collective bargaining agreements or Contracts with the grant of any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or preferential rights to purchase any such asset other arrangements of Seller outside of than in the Ordinary Course of Business;
(rxvi) agreements, licenses, permits, registrations, or other approvals any material Contract with any Governmental EntityAuthority;
(sxvii) any agreements with Contract for any Governmental Entity joint venture, partnership or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cablessimilar arrangement, or any Contract involving a sharing of profits, losses, costs, or liabilities by any member of the Company Group with any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); andPerson;
(txviii) any Real Property Lease or Personal Property Lease (unless terminable by the member of the Company Group without payment or penalty upon no more than 60 days’ notice);
(xix) any other agreements Contract that has an aggregate future liability to any Person in excess of $500,000 (unless terminable by the member of the Company Group without payment or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items penalty upon no more than 60 days’ notice).
(b) Except as set forth above. All the foregoing (whether written or unwrittenon Schedule 3.13(b), including all amendments (i) since the Relevant Date, no member of the Company Group has received any written notice of any default or modifications theretoevent that (with due notice or lapse of time or both) would constitute a default by any member of the Company Group under any Material Contract, all Real Estate Leasesother than defaults that have been cured or waived in writing or would not reasonably be expected to have a Material Adverse Effect, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each (ii) each Material Contract is valida legal, valid and binding obligation of the applicable member of the Company Group and is in full force and effect (except to the extent subject to, and enforceable limited by, the Enforceability Exceptions), (iii) to the Company’s Knowledge, no other party to any Material Contract is (with or without the lapse of time or the giving of notice, or both) in material breach of or in material default under any Material Contract, (iv) since the Relevant Date, no party to any Material Contract has exercised or, to the Company’s Knowledge, formally threatened in writing to exercise any termination rights with respect to any such Material Contract, and (v) since the Balance Sheet Date, the Company Group has not amended, modified, or terminated (other than any expiration thereof in accordance with its terms) any Material Contract, or waived, released, or assigned any material rights or claims under any Material Contract. There is no event or condition which The Company has occurred or exists which constitutes or whichmade available to Purchaser true, with or without noticecorrect and ACTIVE 274341277 complete copies of each written, and a true, correct and complete description of the happening material terms of any event and/or the passage of timeoral, could constitute a default or breach under any such Material Contract by Seller orlisted on Schedule 3.13(a), to the knowledge of the Sellertogether with all amendments, any other party supplements and modifications thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending current renegotiations of of, attempts to renegotiate, or outstanding rights to renegotiate any Material Contract and material amounts paid or payable to the knowledge any member of the SellerCompany Group under current or completed Material Contracts with any Person, and no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contractsuch Person has made demand for such renegotiation.
Appears in 1 contract
Sources: Merger Agreement (Blackbaud Inc)
Material Contracts. Schedule 2.9 (a) Section 3.12(a) of the Sellers’ Disclosure Schedule sets forth all Contracts concerning the Transferred Intellectual Property or that are related to, or used in or held for use in, the Business (except for Contracts that are Excluded Assets, purchase orders for inventory and other goods and services purchased in the ordinary course of business, or in the case of clauses (i), (iv), (vi)-(x), (xiii) and (xiv) below, Contracts (other than Contracts concerning the Transferred Intellectual Property) that individually have a complete future liability not in excess of $150,000 annually or $1,000,000 during the term thereof, and accurate list, in each case whether written or unwritten, other than Contracts that are cancelable by a Seller upon notice of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving not more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) 90 calendar days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenuecost), income or other similar measure of Seller or any other Person;
(f) distributionincluding, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;without limitation:
(i) Contracts for the purchase or other arrangements which place any limitation on the method sale of conducting assets, products or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsservices;
(jii) Exclusive supply Contracts for the purchase of Inventory or other arrangements which require goods or services that are otherwise not generally available and that are used in connection with the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(riii) agreementsContracts pursuant to which a Seller grants to any Person the right to manufacture, licensesdesign, permitsmarket, registrationsdistribute or resell any Business product, or other approvals to represent a Seller with respect to any Governmental Entitysuch product, or act as agent for any Seller in connection with the marketing, distribution or sale of any Business product;
(siv) Contracts for the lease of tangible personal property;
(v) Contracts containing a covenant that restricts a Seller or any agreements Affiliate of a Seller from engaging in any line of business or competing with any Governmental Entity Person;
(vi) Contracts providing for indemnification by a Seller, other than in connection with respect to standard terms and conditions of a Contract for the purchase or nonsale of assets, products or services in the ordinary course of business;
(vii) Employment, consulting or independent contractor Contracts, other than unwritten at-governmental entity that owns will employment Contracts;
(viii) Contracts relating to a joint venture of the Business;
(ix) Currency exchange, interest rate, commodity exchange or controls similar Contracts;
(x) Contracts for capital expenditures;
(xi) Contracts with any utility polesdirector, conduits, officer or rights-of-way governing Seller’s attachment or installation employee of fiber optic lines, coaxial cables, Seller or any of its Subsidiaries (in each case, other Seller owned than (A) employment agreements covered in clause (vii) above), (B) payments of compensation for employment to employees in connection with unwritten at-will employment Contracts and (C) participation in Employee Plans by employees;
(xii) Contracts or controlled facilities licenses of any patents, trademarks, trade names, service marks, copyrights or equipment other Intellectual Property received from or granted to such entity’s poles third parties;
(xiii) Contracts for radio, television newspaper or conduits (“Pole Attachment Agreements”)other media advertising; and
(txiv) other agreements or Contracts which are material to not made in the Businessordinary course of business. (such Contracts collectively, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies each a “Material Contract”).
(b) Except as set forth in Section 3.12(b) of all Material Contracts. Each the Sellers’ Disclosure Schedule, to Sellers’ Knowledge, each Material Contract sets forth (i) is valid and binding on the entire agreement and understanding between the applicable Seller and the other parties counterparties thereto. Each , and is in full force and effect; and (ii) upon consummation of the Transactions, except to the extent that any consents set forth in Section 3.02 or Section 3.03 of the Sellers’ Disclosure Schedule and Bankruptcy Court approvals to transfer are not obtained or would otherwise not have a Material Contract is validAdverse Effect, binding and shall continue in full force and effect without penalty or other adverse consequence. Except as disclosed in Section 3.12(b) of the Sellers’ Disclosure Schedule, the applicable Seller and, to the Sellers’ Knowledge, the counterparties thereto, are not in breach of, or default under, any Material Contract to which any of them is a party except for breaches or defaults that that would not have a Material Adverse Effect or, upon entry or issuance of the Sale Order by the Bankruptcy Court, would not preclude the Sellers from assigning such Material Contract to the Purchaser and enforceable that would be cured or rendered unenforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractSale Order.
Appears in 1 contract
Material Contracts. Schedule 2.9 (a) Section 5.09 of the Companies’ Disclosure Schedule sets forth contains a list of all Company Contracts referred to in clauses (i) through (xix), inclusive, of this Section 5.09(a) (each Company Contract required to be disclosed hereunder, a “Material Contract” and, collectively, the “Material Contracts”), complete and accurate listcopies 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, in each case whether written supplies, goods, services, development, equipment or unwritten, of all other assets providing for aggregate payments by any of the following ContractsCompanies of $10,000 or more;
(iii) any sales, agreements 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 arrangements 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 Seller: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”);
(aviii) Contracts 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 which Seller has any liability Product; or obligation involving more than $15,000.00(B) is obligated to provide to any other Person an interest in the sales, contingent profits or otherwiserevenues of any Product.;
(bxii) Contracts any Company Contract with respect (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 which Seller expects to receive paymentsvote by any Seller, or incur costs (C) any director or services, officer of more than $15,000.00 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 twelve-month periodsuch director or officer;
(cxiii) Contracts that may extend for a term of more than one year after the Closing any indemnification agreements, other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements in connection with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of commercial transactions in the Ordinary Course of Business;
(rxiv) agreements, licenses, permits, registrations, or other approvals any Company Contract with any a Governmental EntityAuthority;
(sxv) powers of attorney from any of the Companies;
(xvi) any agreements with other Company Contract not otherwise described in clauses (i) — (xv) above pursuant to which any Governmental Entity of the Companies is obligated to make payments or non-governmental entity that owns or controls incur costs in excess of $10,000 in any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or year; or
(xvii) any other Seller owned Company Contract or controlled facilities group of other Company Contracts with a Person (or equipment group of affiliated Persons) not otherwise described in clauses (i) — (xvi) above, the breach or termination of which would reasonably be expected to such entity’s poles have or conduits (“Pole Attachment Agreements”); andresult in a Material Adverse Effect.
(ti) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is a valid, binding and in full force and effect and enforceable is enforceable, in each case, in all material respects, in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, terms against the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orapplicable Company and, to the knowledge Knowledge of the SellerCompany, 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 could cause breach in any material respect under the acceleration terms of any obligation or loss of any rights of any party thereto or give rise such Material Contract; (iii) to any right of termination or cancellation thereof. To the knowledge Knowledge of the SellerCompanies, none no event or circumstance has occurred that, with notice or lapse of the parties time or both, would reasonably be expected to (1) constitute any event of material default under any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all Contract; (2) give any Person the right to declare a material respects. There are no pending renegotiations 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 and Contract, or (4) give any Person the right to the knowledge 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 the Seller, its respective material rights under any Material Contract; (vi) no party Company is participating in any active discussions to a Material Contract intends to terminate, accelerate, cancel or materially change 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 Schedule sets forth the names of each partners, service provider, supplier or customers to whom any of the Companies paid or received greater than $50,000 in respect of services, products or materials provided to 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 it is canceling, materially reducing or otherwise terminating its business with the 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 limit 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 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 the Companies’ Knowledge, none of the Intellectual Property Rights licensed by Emory and/or GTRC to ACL were generated, conceived or reduced to practice using government funding and (ii) none of the Companies has ever received any written notice or other communication from any Person asserting that any of the 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 within the 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 reduced to practice by the University of Louisville pursuant to either of the following agreements: (i) the Services Agreement between the University of Louisville and ACL, dated April 2, 2013 and (ii) the Services Agreement between the University of Louisville and APK, dated April 12, 2013.
(i) None of the Companies has experienced any material supply problems relating to obtaining supply of Products or materials and components used in and for the Products, including any nonconformance of supplied Products, materials or components with the applicable specifications, any failure to timely supply such Products materials or components, or any rejected purchase orders for such Products, materials or components.
Appears in 1 contract
Material Contracts. (a) Schedule 2.9 of the Disclosure Schedule sets forth 3.9 contains a complete and accurate list, in each case whether written or unwritten, list of all of the following Contracts, agreements and arrangements with respect (whether written or oral) which relate primarily to the SellerBusiness or by which the Purchased Assets may be bound or affected:
(ai) Contracts with respect to which contracts between Seller has and any liability stockholder, director, officer or obligation 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 $15,000.00, contingent or otherwise25,000 in any consecutive twelve month period after the date hereof;
(biv) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts contracts under which the amount payable by Seller with respect to the Business is dependent on the revenue, revenues or income or other similar measure of or in which Seller is obligated to pay royalties, commissions or similar payments to any other Personperson or entity;
(fv) distributionpledges, marketingsecurity agreements, resellersale/leaseback arrangements and equipment leases (other than leases for copy machines, partner, sales, agency, independent sales agency postage machines and referral contractsfax machines) with respect to any of the Purchased Assets;
(gvi) Contractsagreements, contracts or instruments and arrangements to which Seller is party relating to the borrowing of money, the capital lease or purchase on an installment basis of any Indebtedness asset, or the guarantee thereofof any of the foregoing, if any of the foregoing has or could create a security interest, lien or other encumbrance on the Purchased Assets;
(hvii) Contracts and other arrangements of Seller contracts with any officer, director, manager, stockholder, equity holder, person or Affiliate entity which purport to restrict business activities of Seller, including without limitation any covenant not to compete or any contracts imposing exclusive dealing obligations;
(iviii) Contracts any leases, whether as lessor or other arrangements which place any limitation on the method of conducting lessee, whether for personal or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsreal property;
(jix) Contracts any contract pursuant to which Seller has agreed to indemnify or other arrangements which require the Seller hold harmless any Person or to deliver services on a “fixed fee” or “not to exceed” basispay liquidated damages of any kind;
(kx) employmentjoint venture, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development partnership or similar agreements;
(oxi) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contractsother contracts, instruments, commitments, plans or other arrangements of Seller outside and to which any of the Ordinary Course Purchased Assets or the Business may be subject the value of Businesswhich is greater than or equal to $25,000 per annum;
(rxii) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)the Licenses; and
(txiii) to the extent not covered above, any other agreements contract or Contracts which are agreement material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. .
(b) All of the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as called the “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct Buyer copies of all Material ContractsContracts (or written summaries, in the case of Material Contracts which are oral) and any 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 supplemental arrangements to or in respect of any Material Contract. Each of such Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract Contracts is valid, binding and enforceable against Seller and, to Seller’s knowledge, the other parties thereto in accordance with its terms and is in full force and effect and enforceable in accordance with its termseffect. There Except as specifically identified on Schedule 1.1(b), none of the Material Contracts is an Excluded Contract.
(c) Except as set forth on Schedule 3.9, there is no event or condition which has occurred or exists existing condition (including without limitation the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby) which constitutes or which, with or without notice, the happening of any event and/or or the passage of time, could would constitute a material default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could would cause the acceleration of any obligation or loss of any rights of any party thereto or Seller, give rise to any right of termination or cancellation thereof. To by any party other than Seller or cause the knowledge creation of any Encumbrance on any of the Purchased Assets. Except as set forth on Schedule 3.9, Seller has not 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 Seller’s knowledge, none each of the other parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder thereto has performed in all material respects. There are no pending renegotiations respects all obligations required to be performed by it under, and is not in default in any material respect under, any of any such Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractContracts.
Appears in 1 contract
Material Contracts. Schedule 2.9 (a) Section 3.07(a) of the Disclosure Schedule sets Schedules lists each of the following Contracts (x) by which any of the Purchased Assets are bound or affected or (y) to which Seller is a party or by which it is bound in connection with the Business or the Purchased Assets (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property listed or otherwise disclosed in Section 3.08(b) of the Disclosure Schedules and all Intellectual Property Agreements set forth a complete in Section 3.10(b) of the Disclosure Schedules, being “Material Contracts”): (i) each Contract of Seller involving aggregate consideration in excess of Twenty-Five Thousand Dollars ($25,000) and accurate listwhich, in each case case, cannot be cancelled by Seller without penalty or without more than ninety (90) days’ notice; (ii) all Contracts that require Seller to purchase its total requirements of any product or service from a third-party or that contain “take or pay” provisions; (iii) all Contracts that provide for the indemnification by Seller of any Person or the assumption of any Tax, environmental or other Liability of any Person; (iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of equity interests or assets of any other Person or any real property (whether written by merger, sale of equity interests, sale of assets or unwritten, of otherwise); (v) all of the following Contracts, employment agreements and arrangements with respect to the Seller:
(a) Contracts with respect independent contractors or consultants (or similar arrangements) to which Seller has any liability is a party and which are not cancellable without material penalty or obligation involving without more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days days’ notice; (vi) except for Contracts relating to trade payables, all Contracts relating to Debt; (vii) all Contracts that limit or less prior written notice without material liability, penalty or premium;
(e) Contracts under which purport to limit the amount payable by Seller is dependent on the revenue, income or other similar measure ability of Seller to compete in any line of business or with any Person or in any geographic area or during any period of time, or that restricts the right of the Seller to sell to or purchase from any Person or to hire any Person, or that grants the other party or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or third person “most favored nation” provisions;status or any type of similar discount rights; (viii) any Contracts to which Seller is a party that provide for any joint venture, partnership or similar arrangement by Seller; (ix) all Contracts between or among Seller on the one hand and any Affiliate of Seller on the other hand, including any Equity Holder; and (x) all Contracts between or among Seller, on the one hand, and any Governmental Authority, on the other hand, or pursuant to which the Company provides, directly or indirectly, goods or services to any Governmental Authority (“Government Contracts”).
(jb) Contracts Each Material Contract is valid and binding on Seller in accordance with its terms and is in full force and effect. Neither Seller nor, to Seller’s Knowledge, any other party thereto is in breach of or default under any Material Contract in any material respect. Neither Seller nor, to Seller’s Knowledge, any other party thereto has provided or received any notice of any breach of or default under or intention to terminate, any Material Contract. To Seller’s Knowledge, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other arrangements which require the Seller to deliver services on a “fixed fee” changes of any right or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, obligation or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth aboveloss of any benefit thereunder. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer. Except for the Material Contracts. Each Material Contract sets , Seller does not enter, and has not since January 1, 2019 entered, into any customer contracts that are not in the forms of standard form customer contracts set forth in Section 3.07(b) of the entire agreement Disclosure Schedules (and understanding between subject to periodic revisions based on the Seller reasonably advice of counsel and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or whichpast practice), with or without notice, except certain agreements listed in Section 3.07(b) of the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, Disclosure Schedules.
(c) With respect to the knowledge Government Contracts, as of the date of this Agreement, none of Seller, any other party theretoEquity Holder or any member of Seller’s senior management team: (i) is presently debarred, suspended, proposed for debarment, or could cause declared ineligible for the acceleration award of contracts by any Governmental Authority; (ii) has at any time since January 1, 2019 been convicted of or had a civil judgment rendered against it for: (A) commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a Contract or subcontract with any Governmental Authority; (B) violation of antitrust Laws relating to the submission of offers for Contracts with Governmental Authorities; or (C) commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property; or (iii) is presently indicted for, or otherwise criminally or civilly charged by a Governmental Authority with, commission of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereofthese offenses enumerated in clause (ii) above. To Without limiting the knowledge generality of the Sellerforegoing, none Seller has not, at any time since January 1, 2019, had one or more Contracts terminated by any Governmental Authority for breach or default by Seller or any of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractRepresentatives.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hudson Technologies Inc /Ny)
Material Contracts. Schedule 2.9 The Company is not, and has not since the Accounting Date been, a party to or subject to (and the Company has not agreed in principle, or made any offer or entered any negotiation, to enter into) 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 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 loss to the Company;
20.8 involves or is likely to involve the receipt or payment of a price above or below the market price ruling at the date of this Agreement or any other obligation, restriction, expenditure or receipt of an unusual, onerous or exceptional nature, or which is of uncertain magnitude;
20.9 involves or is likely to involve an aggregate consideration payable by or to the Company in excess of (Pounds)3,000;
20.10 requires the Company to pay any commission, finder's fee, royalty or the like;
20.11 is for the supply of goods by or to the Company on a sale or return basis or on a consignment stock basis;
20.12 is for the supply of goods and/or services by or to the Company on terms under which retrospective or future discounts, price reductions or other financial incentives are given by or to the Company dependent on the level of purchases or any other factor;
20.13 is for the supply of goods and/or services by the Company which is not on the current standard terms and conditions of supply, copies of which are attached to the Disclosure Letter;
20.14 is for the supply of goods 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 are attached to the Disclosure Letter;
20.15 involves the forward purchase or sale of any currency, commodity, precious metal or other 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 Disclosure Schedule sets forth 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 connection with a complete and accurate listsale of shares or assets, or is a guarantee or indemnity in each case whether written or unwritten, of all respect of the following Contractsobligations of a third party, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to under which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwiseliability is outstanding;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 20.19 involves the Company in any twelve-month period;
(c) Contracts that may extend for a term actual or contingent liability in respect of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to land or premises previously occupied by it or in which Seller has it had any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entitiesinterest, including but not limited to any franchise agreement, license agreementliability in respect of any leasehold property at any time assigned or otherwise disposed of by it;
20.20 includes a term which is not, or right of way use agreement;
(n) strategic alliancemay not be, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside binding on the Company to the best of the Ordinary Course knowledge information and belief of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, the Warrantors or any other Seller owned party in consequence of the Unfair Terms in Consumer Contracts Regulations 1994;
20.21 is an outstanding offer, tender or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts the like which are material if accepted may result in a loss to the Business, Company; or
20.22 is not on arm's length terms or is in any way otherwise than in the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed ordinary and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge proper course of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractCompany's business.
Appears in 1 contract
Material Contracts. Schedule 2.9 2.23 of the Disclosure Schedule Letter sets ------------------ ------------- forth a complete and accurate listlist of all contracts, agreements or arrangements to which the Company or any of its Subsidiaries is a party or otherwise bound (i) which involve payment or receipt of an amount in each case whether written excess of US$1,000,000 in any calendar year; (ii) pursuant to which the Company or unwritten, any Company Subsidiary has acquired or disposed of another business entity or all or substantially all of the following Contracts, agreements assets thereof; (iii) relating to indebtedness (including sale and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive paymentsleaseback and capitalized lease transactions and other similar financing transactions), or incur costs guarantees of indebtedness, providing for payment or services, repayment in excess of more than $15,000.00 US$500,000; (iv) providing for the indemnification by the Company or any of its Subsidiaries of any Person in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the BusinessCompany, except those entered into in the Acquired Assetsordinary course of business; (v) any material joint venture, partnership or similar documents or agreements; (vi) limiting or purporting to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any assets having an aggregate value in excess of US$500,000; (vii) which purports to limit in any respect the manner in which, or the Sellerlocalities in which, 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 Company or any of its Subsidiaries; and (ix) not made in the ordinary course of business which is material to the Company and its Subsidiaries taken as a whole or which a reasonable purchaser would consider important in deciding whether prohibit or not to acquire materially delay the Acquired Assets to consummation of the extent not already listed and disclosed pursuant to transactions contemplated by this Agreement (collectively, the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “"Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto"). Each Material Contract is validvalid and binding on the Company (or, binding to the extent any of its Subsidiaries is a party, such Subsidiary) and is in full force and effect effect. The Company and enforceable each of its Subsidiaries have in accordance with all material respects performed all obligations required to be performed by them to date under each Material Contract; and neither the Company, nor any of its terms. There is no event or condition which has occurred or exists which constitutes or whichSubsidiaries, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, nor to the knowledge Knowledge of the SellerCompany, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminateContract, accelerate, cancel is in breach or materially change the terms of default under any Material Contract; nor, to the Knowledge of the Company, does there exist any condition which with the passage of time or the giving of notice or both would result in such a violation, breach or default thereunder, in any event which breach or default could have a Company Material Adverse Effect. The Company has provided the Purchasers with true and complete copies of all Material Contacts.
Appears in 1 contract
Sources: Regulation S Stock Subscription Agreement (America Online Latin America Inc)
Material Contracts. Schedule 2.9 Section 4.12(a) of the Disclosure Schedule sets forth is a true and complete and accurate list, in each case whether written or unwritten, list of all of the following Contracts (the “Material Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;”):
(i) [Reserved];
(ii) Contracts evidencing or other arrangements which place relating to Indebtedness;
(iii) Contracts evidencing or relating to any limitation on the method of conducting or scope 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 includingEmployees, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right which agreements provide for annual salary in excess of first refusal$300,000, or (B) severance, retention, change of control or similar payments payable to Business Employees;
(viii) Contracts evidencing any partnership, joint venture or similar strategic alliance or collaboration, in which the Company or the 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 party (A) relating to the acquisition or disposition of any Equity Interests, business, real property, product line or material amount of assets of any other Person, or (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 the Company;
(xii) Contracts to which the Company is (or following the Reorganization will become) a party containing “most favored nation” provisionspricing;
(jxiii) Contracts to which the Company is (or other arrangements which require following the Seller Reorganization will become) a party (A) limiting the freedom of the Company or the Business to deliver services on a “fixed fee” engage in any line of business, acquire any Person or “not compete with any Person or in any market or geographical area, or to exceed” basissolicit any individual or class of individuals for employment during any period of time, or (B) containing any right of first refusal or similar rights;
(kxiv) employment, severance, consulting, deferred compensation and similar agreements[Reserved];
(lxv) Contracts with respect obliging the Company or the Business to mergers source the entirely of its requirements for any product or acquisitions, sales of securities service from a single supplier or material assets, to sell any product or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited service to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)a single Person; and
(txvi) other agreements Any Contract not otherwise listed above to which the Company is (or Contracts which are material following the Reorganization will become) a party that either (A) involves payments to or from the Business, the Acquired AssetsCompany in excess of $1,000,000 per annum, or (B) has a duration in excess of twelve (12) months that cannot be terminated by the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing Company on less than ninety (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or 90) days’ notice without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contractpenalty.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Tronc, Inc.)
Material Contracts. Schedule 2.9 Seller has made available to each Purchaser accurate and complete copies of each of the Disclosure Schedule sets forth a complete Material Contracts as of the date hereof (including exhibits, schedules, annexes and accurate list, in each case whether written or unwrittencase, of together with all amendments thereto), all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed listed on Schedule 2.9 3.11. Each of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that Material Contracts is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and is a valid and binding agreement of Seller or any of its Subsidiaries, as the case may be, and, to the Knowledge of Seller, of each other party thereto, enforceable against Seller or such Subsidiary, as the case may be, and, to the Knowledge of Seller, against the other party or parties thereto, in each case, in accordance with its termsterms 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. There Neither Seller nor any Subsidiary is in default under any Material Contract, nor, to the Knowledge of Seller, is any other party to any Material Contract in material breach of or material default thereunder, and no event or condition which has occurred that with the lapse of time or exists which constitutes the giving of notice or which, with or without notice, the happening of any event and/or the passage of time, could both would constitute a breach or default or breach under by Seller, any such Material Contract by Seller of its Subsidiaries or, to the knowledge Knowledge of Seller, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or material default of any other party thereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto, and no such party has given notice of any significant dispute with respect to any Material Contract. Schedule 3.11 of the Seller Disclosure Schedule lists all Contracts (each Contract listed in Schedule 3.11 of the Seller Disclosure Schedule, a "Material Contract," and collectively the "Material Contracts") relating to the Sale Business to which Seller or any of its Subsidiaries is a party and that are: material Contracts entered into by Seller or its Subsidiaries with respect to the Transferred Assets; Contracts between Seller, any other party theretoSubsidiary of Seller or an Affiliate of Seller; Contracts with any current or former officer or director, or could cause current 5% or greater stockholder of Seller other than at-will employment offer letters and standard employee confidentiality and invention assignment agreements (the acceleration true, correct and complete forms of which have been provided to Purchaser); Contracts under which Seller or any of its Subsidiaries has incurred any currently outstanding Indebtedness or currently outstanding loans to any other Person in excess of $20,000; Contracts providing for severance, retention, change in control or other similar payments that relate to the Business Employees; Contracts establishing any joint venture, partnership, strategic alliance, sharing of profits or other material collaboration; Contracts that limit, or purport to limit, the ability of Seller or any of its Subsidiaries to, compete in any line of business or with any Person or in any geographic area or during any period of time or that require Seller or any of its Subsidiaries to deal exclusively with a given Person in respect of a given matter; Contracts for the sale of any obligation Transferred Asset or loss the grant of any preferential rights to purchase any Transferred Asset or requiring the consent of any party thereto to the transfer thereof; Contracts related to an acquisition or give rise sale of assets or other acquisition, divestiture, merger or similar transaction, in each case, involving consideration in excess of $100,000 and containing representations, covenants, indemnities or other obligations that are still in effect; Contracts relating to the incurrence, assumption or guarantee of any Liability or imposing a Lien other than Permitted Liens on any of the Transferred Assets, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements; Contracts (or any group of related contracts) resulting in revenues or receipts to Seller and the Subsidiaries in excess of $100,000 annually or in the aggregate; Contracts (or any group of related contracts) resulting in expenditures or payment obligations of more than $100,000 annually or in the aggregate; Intellectual Property Licenses or any other Contracts relating to any right Intellectual Property Rights or Technology (excluding licenses pertaining to "off-the-shelf" commercially available Software used pursuant to shrink-wrap, click-through or similar non-exclusive, license agreements on commercially reasonable terms for a license fee of termination no more than $20,000 ("Off-the-Shelf Software Licenses"); Contracts (i) with material suppliers, distributors or cancellation thereof. To sales representatives, or (ii) providing for the knowledge manufacture of Seller Products; 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; and other Contracts in effect as of the Seller, none date of this Agreement to which Seller or any of its Subsidiaries is a party and that are material to the conduct of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to Sale Business, or the knowledge use or operation of the SellerTransferred Assets, no party as presently conducted or as presently intended to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contractbe conducted.
Appears in 1 contract
Sources: Asset Purchase Agreement (Zilog Inc)
Material Contracts. Schedule 2.9 (a) Except for this Agreement, Company Benefit Plans or as set forth in Section 3.18 of the Company Disclosure Schedule sets forth a complete (including the accurate description of principal terms in the case of oral Contracts, and accurate listall amendments, in supplements and side letters thereto that modify each case whether written or unwrittensuch Contract), of all as of the following Contractsdate of this Agreement, agreements neither the Company nor any of its Subsidiaries is a party to or bound by any Contract (or to which any of their respective properties or assets are subject or bound, whether or not scheduled and arrangements with respect to including any such Contract entered into after the Sellerdate hereof, including all amendments, supplements and side letters thereto that materially modify each such Contract that:
(ai) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwisewould constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act);
(bii) Contracts provides for the formation, creation, operation, management or control of any joint venture, partnership, strategic alliance or similar Contract with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month perioda third party;
(ciii) Contracts that may extend (A) is an indenture, credit agreement, loan agreement, note or other Contract providing for a term Indebtedness for borrowed money of more than one year after the Closing Company or any of its Subsidiaries (other than Indebtedness among the Company and/or any vendor agreement entered into of its Subsidiaries) having an outstanding or committed amount in excess of $10 million (such Indebtedness, “Company Material Indebtedness”) or (B) requires the Ordinary Course Company or any of Business that are not otherwise required its Subsidiaries to be disclosed on Schedule 2.9 provide any funds to or make any investment (in each case, in the form of the Disclosure Schedule;
(da loan, capital contribution or similar transaction) all agreements with Suppliers with respect to which Seller has in excess of $10 million in any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller its Subsidiaries or any other Person;
(fiv) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(gA) Contracts, instruments and arrangements relating is a settlement Contract which would require the Company or any of its Subsidiaries to any Indebtedness pay consideration of more than $2.5 million after the date of this Agreement or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation that contains restrictions on the method of conducting or scope business and operations of the Business including, without limitation, any agreement Company and its Subsidiaries that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Businessbusiness of the Company and its Subsidiaries, taken as a whole or (B) relates to the Acquired Assetssettlement (or proposed settlement) of any pending or threatened Proceeding which would require the Company or any of its Subsidiaries to pay consideration of more than $2.5 million after the date of this Agreement or that contains restrictions on the business and operations of the Company and its Subsidiaries that are material to the business of the Company and its Subsidiaries, taken as a whole;
(v) was entered into on or after January 1, 2024 that provides for the acquisition or disposition or assignment of any business or assets (whether by merger, sale of stock, sale of assets or otherwise) or any real property (or capital stock or other equity interests of any Person with any outstanding obligations as of the date of this Agreement), (A) with a value in excess of $10 million or (B) pursuant to which any earn-out, indemnification or deferred or contingent payment obligations remain outstanding that would reasonably be expected to involve payments by or to the Company or any of its Subsidiaries after the date hereof in excess of $10 million;
(vi) is a Contract between the Company or any of its Subsidiaries, on the one hand, and a Governmental Entity, on the other hand;
(vii) is a Contract with any of the ten (10) largest customers of the Company and its Subsidiaries, taken as a whole, for the 12 months ended December 31, 2024;
(viii) is a Contract with any of the ten (10) largest suppliers of the Company and its Subsidiaries, taken as a whole, based on the aggregate amount of expenditures made by the Company and its Subsidiaries to such supplier for the 12 months ended December 31, 2024;
(ix) any Network Contract;
(x) constitutes an interest rate swap, interest rate cap, interest rate, currency or commodity derivative or other similar Contract related to hedging, in each case, with a notional amount in excess of $5 million;
(xi) contains any covenant that materially limits the ability or right of the Company or any of its Affiliates to compete in or conduct any line of business or grants a right of exclusivity to any Person that prevents the Company or any of its Affiliates from entering any territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated for convenience by the Company or any of its Subsidiaries on less than sixty (60) days’ notice without payment by the Company or any of its Subsidiaries of any material penalty;
(xii) provides that (A) the Company or any of its Subsidiaries licenses to a third party any material Company Intellectual Property (other than licenses granted to customers in the ordinary course, including in connection with the sale, distribution, performance, or the Sellerlicensing of any Company products, content, media or services), or which (B) a reasonable purchaser would consider important third party licenses any material Intellectual Property to the Company or its Subsidiaries (other than non-exclusive licenses to commercially available, off-the-shelf technology, or content with annual fees of (I) less than $1,000,000 (other than Programming Agreements) or (II) in deciding whether or the case of any such licenses that are Programming Agreements, less than $1,500,000) (including in each case ((A) and (B)) covenants not to acquire sue and trademark, service mark or trade dress co-existence agreements);
(xiii) grants any Transfer Rights with respect to any assets of the Acquired Assets Company or its Subsidiaries that are (A) material to the extent not already listed Company and its Subsidiaries, taken as a whole or (B) consist of real property or interests in Subsidiaries that own or lease real property; or
(xiv) is with an affiliate or other Person and would be required to be disclosed pursuant to under Item 404(a) of Regulation S-K promulgated under the items set forth aboveExchange Act. All Each Contract of the foregoing type described in clauses (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively i) – (xiv) of this Section 3.18(a) is referred to herein as a “Company Material ContractsContract.”. The Seller has furnished to the Purchaser true, complete,
(b) True and correct copies of all Material Contracts. Each each Company Material Contract sets forth have been made available to Parent. Neither the entire agreement Company nor any Subsidiary of the Company (x) is in (or has received any written claim of a) breach or violation of or default under the terms of any Company Material Contract and understanding between (y) no event has occurred that with notice or lapse of time or both would constitute a breach or default thereunder by the Seller Company or any of its Subsidiaries, in each case, where such breach or default would have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, as of the date hereof, no other party to any Company Material Contract (i) is in breach of or default under the terms of any Company Material Contract and (ii) no event has occurred that with notice or lapse of time or both would constitute a breach or default thereunder by any other party to a Material Contract, in each case, where such breach or default would have, individually or in the other parties theretoaggregate, a Company Material Adverse Effect, and to the Knowledge of the Company, there are no facts or circumstances that would reasonably be expected to give rise to a breach or default under the terms of a Material Contract. Each Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, as of the date hereof, each Company Material Contract is valida valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, binding to the Knowledge of the Company, of each other party thereto, and is in full force and effect and enforceable in accordance with effect, subject to the Enforceability Exceptions. From January 1, 2024 to the date hereof, neither the Company nor any of its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of Subsidiaries have received any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller written or, to the knowledge of the SellerCompany, other communication from any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Company Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any intends to (A) terminate such Company Material Contract or (B) seek to amend the terms and conditions of such Company Material Contract in a manner materially adverse to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractCompany.
Appears in 1 contract
Material Contracts. (a) Section 4.17(a) of Alpha Disclosure Schedule 2.9 lists, and Alpha has made available to Foundation prior to the date of this Agreement, true, correct and complete copies of, any of the Disclosure Schedule sets forth following Contracts to which Alpha or any of its Subsidiaries is a complete and accurate listparty or by which Alpha, any of its Subsidiaries or any of their respective assets is bound, as of the date hereof:
(i) that would be required to be filed by Alpha as a "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by Alpha on a Current Report on Form 8-K;
(ii) that contains covenants that limit the ability of Alpha or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of the Surviving Corporation or any of its Affiliates) to 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 whether written or unwrittencase, of all of the following Contracts, agreements and arrangements with respect that could reasonably be expected to be material to the Seller:business of Alpha and its Subsidiaries, taken as a whole;
(aiii) Contracts with respect that relates to a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the 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 direct or indirect wholly-owned Subsidiary of Alpha) or pursuant to which Seller Alpha or any of its Subsidiaries has any liability or an obligation involving more than $15,000.00, (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(biv) Contracts 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 the business of Alpha and its Subsidiaries, taken as a whole;
(v) 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 respect which the aggregate actual or contingent obligations of Alpha and its Subsidiaries under such Contract are greater than $10,000,000;
(vi) under which (A) to which Seller expects to receive paymentsthe knowledge of Alpha, any Person has directly or indirectly guaranteed any liabilities or obligations of Alpha or its Subsidiaries (other than any such guarantees by Alpha or its Subsidiaries), in case of each such liability or obligation, in an amount in excess of $5,000,000, or incur costs (B) Alpha or services, any of more its Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person (other than Alpha or any of its Subsidiaries);
(vii) for the 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 $15,000.00 50,000,000 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 would reasonably be expected to exceed $50,000,000 in any twelve-month period;
(cviii) Contracts that may extend for a under which (x) the aggregate amounts to be paid by Alpha and its Subsidiaries over the remaining term of more than one year after such Contract would reasonably be expected to exceed $10,000,000 in any twelve-month period or (y) the Closing aggregate amounts to be received 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, in each case, other than any vendor agreement entered into (1) the Ordinary Course Alpha Material Contracts described in Section 4.17(a)(iv) or 4.17(a)(vii) and (2) purchase orders for the purchase of Business that are not otherwise required to be disclosed on Schedule 2.9 goods or services in the ordinary course of the Disclosure Schedulebusiness;
(dix) all agreements with Suppliers with respect that relates to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;an Alpha Interested Party Transaction; or
(ex) Contracts under which that would or would reasonably be expected to prevent or materially delay Alpha's ability to consummate the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness Merger or the guarantee thereof;
(h) Contracts and other arrangements transactions contemplated by this Agreement. Each Contract of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
the type described in clauses (i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
through (jx) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively is referred to herein as “an "Alpha Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Contract."
(b) Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Alpha Material Contract is validvalid and binding on Alpha and any Subsidiary of Alpha that is a party thereto and, binding to the knowledge of Alpha, each other party thereto and is in full force and effect and enforceable in accordance with its termseffect. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Alpha Material Contract by Seller Alpha or any of its Subsidiaries or, to the knowledge of the SellerAlpha, by any other party theretoparty, and no event has occurred that with the lapse of time or could cause the acceleration giving of notice or both would constitute a default thereunder by Alpha or any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Sellerits Subsidiaries or, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of Alpha, by any other party, in each case except as would not have or reasonably be expected to have, individually or in the Selleraggregate, no an Alpha Material Adverse Effect.
(c) Neither Alpha nor any of its Subsidiaries is party to a Material any Contract intends that prohibits Alpha from providing to terminate, accelerate, cancel or materially change Foundation the terms of any Material Contractinformation described in Section 5.4(c).
Appears in 1 contract
Material Contracts. (a) Except for this Agreement, Schedule 2.9 3.20 of the Partnership Disclosure Schedule sets forth Letter contains a complete and accurate correct list, as of the date of this Agreement, of each Contract described below in this Section 3.20(a) under which General Partner, Partnership, any Partnership Subsidiary or any Partnership JVs has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is subject, in each case whether written or unwritten, of all as of the following Contracts, agreements and arrangements with respect to the Seller:
date of this Agreement (a) all Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(dtype described in this Section 3.20(a) all agreements with Suppliers with respect being referred to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which herein as the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) “Partnership Material Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;”):
(i) Contracts (A) any joint venture, partnership or other arrangements which place similar Contract relating to the formation, creation, operation, management or control of any limitation on joint venture, partnership or limited liability company (including the method of conducting Partnership JVs) or scope of any research and development project Contract, and (B) any shareholders, investors rights, registration rights or similar agreement or arrangement with or relating to the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsPartnership Subsidiaries;
(jii) Contracts any Contract that (A) provides for the acquisition or divestiture of any vessel or any other arrangements which require material asset, including any Partnership Vessel (other than acquisitions or dispositions of inventory in the Seller ordinary course of business) or business (whether by merger, sale of equity, sale of assets or otherwise) and (B) contains outstanding obligations that are material to deliver services on Partnership and its Subsidiaries, taken as a “fixed fee” or “not to exceed” basiswhole;
(kiii) employmentany Contract (excluding non-exclusive licenses for uncustomized, severancecommercially available “off the shelf” Software or IT Systems (in each case, consultingin object code form, deferred compensation if applicable) licensed pursuant to standard terms and similar conditions with annual or aggregate payments of greater than US$150,000 under which General Partner, Partnership, any Partnership Subsidiary or any Partnership JV is granted any license or other rights with respect to any Intellectual Property or IT Systems of a third party (including by means of covenants not to ▇▇▇ or software-as-a-service agreements), which Contract or Intellectual Property is material to Partnership, the Partnership Subsidiaries or the Partnership JVs;
(liv) Contracts any Contract under which General Partner, Partnership, any Partnership Subsidiary or any Partnership JV has granted to a third party any license or other rights with respect to mergers any Partnership Intellectual Property (including by means of covenants not to ▇▇▇), which Contract or acquisitionsIntellectual Property is material to Partnership, sales the Partnership Subsidiaries or the Partnership JVs (excluding non-exclusive licenses granted in the ordinary course of securities business (A) to customers or material assets(B) to service providers for use for the benefit of Partnership, the Partnership Subsidiaries or investments by Sellerthe Partnership JVs);
(mv) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals Contract with any Governmental Entity;
(svi) each Contract that (A) limits in any material respect the freedom of Partnership or any of its Affiliates to solicit any client or customer, or to compete in any line of business or geographic region, or with any Person, including any Contract (1) that requires Partnership and its Affiliates to work exclusively or preferentially with any Person in any line of business or geographic region, (2) which by its terms would so limit the freedom of Parent and its Affiliates after the Effective Time or (3) contains a “most favored nation” provision in favor the other party or (B) is a requirements or “take or pay” Contract or (C) requires Partnership to purchase a minimum amount of a particular product from a supplier, in the case of clauses (B) and (C) that is material to Partnership and its Subsidiaries, taken as a whole;
(vii) any Contract with (A) any Person that, by itself or together with its Affiliates or those acting in concert with it, beneficially owns, or has the right to acquire beneficial ownership of, at least five percent (5%) of the Common Units or (B) any Affiliates of Partnership (other than Partnership Subsidiaries);
(viii) all material Contracts, obligations or commitments (w) with change of control provisions that are triggered, (x) that otherwise require consent, (y) grant a right to terminate, accelerate or otherwise amend the terms of an existing or contemplated Contract, or (z) that result in any payment becoming due from the Partnership or a Partnership Subsidiary or Partnership JV, in each case, as a result of the Transactions;
(ix) any shareholders, investors rights, registration rights or similar agreement or arrangement with or relating to Partnership;
(x) any Contract involving the settlement of any Proceeding or threatened Proceeding (or series of related Proceedings) (A) which (x) will involve payments after the date hereof, or involved payments, in excess of US$5,000,000 or (y) will impose, or imposed, monitoring or reporting obligations to any other Person outside the ordinary course of business or material restrictions on General Partner, Partnership, any Partnership Subsidiary or any Partnership JVs (including any restrictions on exploitation of Partnership Intellectual Property) or (B) with respect to which material conditions precedent to the settlement have not been satisfied;
(xi) (A) any loan Contracts, notes, letters of credit and other evidences of Indebtedness in excess of US$5,000,000, (B) any mortgages, pledges and other evidences of liens securing such obligations or any material real or other property and (C) any guarantees supporting such obligations and financing Contracts including change of control provisions, other than Contracts solely among Partnership and any wholly owned Partnership Subsidiary;
(xii) any Contract that relates to the time or bareboat chartering (including time charters, bareboat charters, contracts of affreightments or similar agreements with Governmental Entities), management (technical and/or commercial), crewing, operation, maintenance, dry docking, stacking, finance leasing (including sale/leaseback or similar arrangements) or pooling of any Governmental Entity Partnership Vessel that has resulted in payments to or non-governmental entity that owns or controls by General Partner, Partnership, any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, Partnership Subsidiary or any Partnership JVs of more than US$5,000,000 in the aggregate for the prior fiscal year;
(xiii) any ship-sales, memorandum of agreement or other Seller owned vessel acquisition Contract entered into since January 1, 2020 other than with respect to the Partnership Vessels and any Contract entered into since January 1, 2020 with respect to the construction of vessels that will become Partnership Vessels and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(xiv) any Contract with a Partnership Material Supplier;
(xv) any Contract pursuant to which General Partner, Partnership or controlled facilities any Partnership Subsidiary spent or equipment received, in the aggregate, more than US$5,000,000 during the twelve (12) months prior to the date hereof or could reasonably be expected to spend or receive, in the aggregate, more than US$2,000,000 during the twelve (12) months immediately after the date hereof (including any Contract relating to any future capital expenditures by Partnership or any of its Subsidiaries and excluding any voyage charters);
(xvi) any Contract not otherwise described in any other subsection of this Section 3.20(a) that would constitute a “material contract” (as such entity’s poles or conduits (“Pole Attachment Agreements”)term is defined in Item 601(b) of Regulation S-K of the SEC) with respect to Partnership; and
(txvii) other agreements or Contracts which are material any collective bargaining agreement.
(b) Partnership has provided to Parent prior to the Businessdate of this Agreement a true, correct and complete copy of each Partnership Material Contract as in effect on the Acquired Assetsdate of this Agreement. Neither General Partner, Partnership, any Partnership Subsidiary, nor to its knowledge any Partnership JVs is in breach of or default under the terms of any Partnership Material Contract (and no event has occurred that with the lapse of time or the Seller, giving of notice or which a reasonable purchaser both would consider important in deciding whether constitute such breach or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwrittendefault thereunder), including all amendments in each case except where such breach or modifications theretodefault has not had or would not reasonably be expected to have, all Real Estate Leasesindividually or in the aggregate, FCC Licensesa Partnership Adverse Impact. To the knowledge of Partnership, and all IP Licenses are sometimes collectively referred no other party to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each any Partnership Material Contract is validin, or is alleged to be in, breach of or default under the terms of any Partnership Material Contract (and no event has occurred that with the lapse of time or the giving of notice or both would constitute such breach or default thereunder), in each case except where such breach or default has not had or would not reasonably be expected to have, individually or in the aggregate, a Partnership Adverse Impact. Except as would not reasonably be expected to have, individually or in the aggregate, a Partnership Adverse Impact, each Partnership Material Contract is a valid and binding obligation of Partnership, the Partnership Subsidiary or the Partnership JV which is party thereto and, to the knowledge of Partnership, of each other party thereto, and is in full force and effect and enforceable in accordance with its termseffect, subject to the Enforceability Exceptions. There is are no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller material disputes pending or, to the knowledge of Partnership, threatened with respect to any Partnership Material Contract and neither General Partner, Partnership nor any Partnership Subsidiary has received any written notice of the Seller, intention of any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any a Partnership Material Contract have informed Seller that it will to terminate for default, convenience or not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of renew any Partnership Material Contract and Contract, nor to the knowledge of the SellerPartnership, no is any such party threatening to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contractdo so.
Appears in 1 contract
Sources: Merger Agreement (Teekay Corp)
Material Contracts. Schedule 2.9 (a) Section 4.9(a) of the Seller Disclosure Schedule sets forth a complete and accurate list, in list (referencing the applicable subsection of this Section 4.9(a)) identifying each case whether written or unwritten, of all of the Contracts which meets the following criteria (collectively, the “Material Contracts”, agreements and arrangements the Material Contracts that are Acquired Contracts (each of which Acquired Material Contracts is marked with an * on the Seller Disclosure Schedule) being, collectively, the “Acquired Material Contracts”):
(i) any Customer Contract or Contract for the sale or provision by Seller or a Business Affiliate of Business Products (except for those Contracts solely for the sale or provision of the Non-PaCS Applications);
(ii) any Contract granting most favored customer pricing to any Person with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive paymentsBusiness, or incur costs or servicesany Contract providing for the grant of exclusive sales, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilitydistribution, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income marketing or other similar measure of Seller or any other Person;
(f) distributionexclusive rights, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right rights of first refusal, rights of first negotiation or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts rights and/or terms with respect to mergers or acquisitions, sales of securities or material assetsthe Business to any Person, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, Contract prohibiting or limiting the right of way use agreement;
Seller or a Business Affiliate to conduct the Business (nincluding any non-competition provisions) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements prohibiting or Contracts restricting their ability to conduct the Business with any union;
Person (p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans other than restrictions imposed by law or other arrangements of Seller outside of customary confidentiality provisions entered into in the Ordinary Course of Business) or provide services of the Business to any Person in any geographic area, in each case, other than restrictions that would not be applicable to Buyer’s conduct of the Business immediately after Closing;
(riii) agreementsany Contract Related to the Business with any vendor or supplier;
(iv) each IP Contract;
(v) any Contract Related to the Business with any reseller, licensesdistributor, permitsoriginal equipment manufacturer, registrationsvalue added reseller or similar indirect channel partner;
(vi) any Contract Related to the Business pursuant to which Seller or its Affiliates is a lessor or lessee of (A) any real property or (B) any office furniture, fixtures or other personal property involving payments in excess of Twenty-Five Thousand Dollars ($25,000) individually during the fiscal year ending May 29, 2021;
(vii) any Contract granting a Lien upon any Acquired Asset, other than Permitted Liens;
(viii) any partnership, joint venture, or other approvals similar equity investment Contract that involves a sharing of profits of the Business with a third party;
(ix) any Contract providing for a material acquisition or a material disposition of any Person, asset or business in connection with, or constituting part of, the Business (other than the Transaction Documents);
(x) any settlement agreement imposing material limitations on the conduct or operation of the Business (including the operation or conduct of the Business by Buyer or its Affiliates after Closing);
(xi) any Contract with any labor union or any collective bargaining agreement that governs the employment or service terms of any Business Employees;
(xii) any Contract requiring any capital commitment or capital expenditures (including any series of related expenditures) Related to the Business in excess of Twenty-Five Thousand Dollars ($25,000) individually or One Hundred Thousand Dollars ($100,000) in the aggregate, other than any Contract with a Customer not expressly requiring capital expenditures as such; and
(xiii) any Contract Related to the Business with any Governmental Entity;.
(sb) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items Except as set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies on Section 4.9(b) of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Disclosure Schedule, each Acquired Material Contract is valid, binding and in full force and effect and is a legal, valid, binding and enforceable obligation of Seller or the applicable Business Affiliate, and, to Seller’s Knowledge, of the other party or parties thereto, except as enforceability may be limited by the Enforceability Exception. None of Seller or the applicable Business Affiliate is in accordance with its terms. There is breach or default under any such Acquired Material Contract, and, except as set forth on Section 4.3(a) or Section 4.3(b) of the Seller Disclosure Schedule, no event or condition which has occurred or exists which constitutes or circumstances exist (in each case solely with respect to Seller and the Business Affiliates) which, with or without the delivery of notice, the happening of any event and/or the passage of timetime or both, could would constitute a default breach or breach default, or permit the termination, modification or acceleration under any such Acquired Material Contract. No party to any Acquired Material Contract by has exercised any termination rights with respect thereto, and no party has given written notice of any dispute with respect to any Acquired Material Contract. Seller has made available to Buyer true, accurate and complete copies of all Acquired Material Contracts, including all amendments, modifications, or supplements thereto or, with respect to the knowledge any Acquired Material Contracts that are not in written form, Section 4.9(b) of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge Seller Disclosure Schedule provides an accurate and complete description of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any such Acquired Material Contract.
Appears in 1 contract
Material Contracts. Schedule 2.9 (a) Section 3.20 of the EVIMATE Disclosure Schedule sets forth a complete list of each of the following Contracts to which, as of the date of this Agreement, EVIMATE 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 EVIMATE or any of its subsidiaries, if any, to) compete in any line of business or geographic area or (B) to restrict the ability of EVIMATE 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 EVIMATE or any of its subsidiaries that exceed $25,000;
(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) all material Contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment (other than agreements with employees, non-exclusive licenses granted to EVIMATE’s or its subsidiaries’ customers, and accurate listnon-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms);
(v) all partnership, joint venture or other similar agreements or arrangements;
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or a series of related agreements) with an aggregate outstanding principal amount not exceeding $25,000;
(vii) any agreement for the disposition or acquisition by EVIMATE or any of its subsidiaries, if any, with material obligations of EVIMATE or any of its subsidiaries, if any, (other than confidentiality obligations) remaining to be performed or material Liabilities of EVIMATE or any of its subsidiaries, if any, continuing after the date of this Agreement, of any material business or any material amount of assets other than in the ordinary course of business;
(viii) any agreement with (A) the top 10 customers of EVIMATE and its subsidiaries, if any, taken as a whole, as applicable, and (B) the top 10 suppliers of EVIMATE and its subsidiaries, if any, taken as a whole, as applicable, in each case whether written case, for the 2022 fiscal year measured by the aggregate obligations paid or unwrittenagreed to pay to or by EVIMATE, as applicable;
(ix) any agreement restricting or limiting the payment of all 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 development of Intellectual Property, other than those entered into in the ordinary course of business with Company employees and contractors on EVIMATE’s standard form for such Contracts; and
(xi) to the extent not set forth in Section 3.20(a) of the following ContractsEVIMATE Disclosure Schedule pursuant to another subsection of this Section 3.20(a), all material agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;Governmental Authority.
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, A true and complete copy of more than $15,000.00 in each Company Material Contract (including any twelve-month period;
(camendments thereto) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into prior to the Ordinary Course date of Business that are not otherwise required this Agreement has been made available to be disclosed on Schedule 2.9 LGIQ prior to the date of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability this Agreement. Each Company Material Contract is a valid and binding agreement of EVIMATE or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;its applicable Subsidiary.
(i) Contracts neither EVIMATE or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orSubsidiary nor, to the knowledge Knowledge of the SellerEVIMATE, any other party thereto, is in breach of or could cause the acceleration of default under any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge such Company Material Contract,
(ii) as of the Sellerdate of this Agreement, none there are no material disputes in connection with any such Company Material Contract and
(iii) as of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations date of any Material Contract and to the knowledge of the Sellerthis Agreement, no party to a under any Company Material Contract intends has given written notice of its intent to terminate, accelerate, cancel terminate or materially change the terms of any otherwise seek a material amendment to such Company Material Contract.
Appears in 1 contract
Material Contracts. Schedule 2.9 (a) Except as set forth in Section 3.19(a) of the Company Disclosure Schedule sets forth and in the Company SEC Documents, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a complete and accurate list, in each case whether written party to or unwritten, of all bound by (other than any of the following Contracts, agreements solely between the Company and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has its wholly-owned Subsidiaries or solely between any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelvewholly-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;owned Subsidiaries):
(i) Contracts any "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of 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 the right or ability of the Company or any of its Subsidiaries to compete with any other person, solicit any client or customer, acquire or dispose of the securities of another person, or any other provision that materially restricts the conduct of any line of business by the Company or its Subsidiaries (or that following the Closing will materially restrict the ability of Parent or its Subsidiaries to engage in any line of business) or (B) (1) 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 (2) contains "most favored nation" or similar covenants, obligations or other arrangements which place agreements;
(iv) any limitation on the method of conducting or scope Collective Bargaining Agreement;
(v) any agreement relating to Indebtedness of the Business including, without limitation, Company or any agreement of its Subsidiaries having an outstanding principal amount in excess of $1,000,000;
(vi) any Contract that contains grants any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, right of first offer or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts right with respect to mergers or acquisitions, sales of securities or material any assets, rights or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity properties that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the BusinessCompany or its Subsidiaries, taken as a whole;
(vii) any Contract entered into after January 1, 2011 that provides for the Acquired Assetsacquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) and with any outstanding obligations or liabilities as of the date of this Agreement that are material to the Company and its Subsidiaries, taken as a whole (including any such Contract which has been completed but for which any obligations or liabilities of either party (including for indemnification) remain outstanding);
(viii) any joint venture, partnership or limited liability company agreement or other similar Contract entered into after January 1, 2011 relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company's Subsidiaries;
(ix) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries (i) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (ii) to make loans to the Company or any of its Subsidiaries or (iii) to grant Liens on the property of the Company or any of its Subsidiaries;
(x) any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in excess of $1,000,000 in, any person (other than the SellerCompany or any of its Subsidiaries), other than loans and advances to employees of the Company or any of its Subsidiaries in the ordinary course of business;
(xi) any Contract (A) granting the Company and/or one of its Subsidiaries any right to use any material third party Intellectual Property (other than commercially-available, non-customized software licenses with annual fees of less than or equal to $500,000), (B) permitting any third person to use, enforce or register any Intellectual Property owned by the Company or its Subsidiaries, including any license agreements (other than non-exclusive licenses granted to customers in the ordinary course of business that are, in all material respects, on the Company's or its Subsidiaries' standard form), coexistence agreements and covenants not to ▇▇▇ or (C) restricting the right of the Company or its Subsidiaries to use or register any Intellectual Property owned by the Company or its Subsidiaries;
(xii) any Contract (1) that by its terms calls for the payment of more than $5,000,000 by the Company and its Subsidiaries in any year over the life of such Contract or (2) to which any Top Supplier is a reasonable purchaser party;
(xiii) any Contract (1) that involved the receipt of more than $10,000,000 in revenue by the Company and its Subsidiaries in the fiscal year ending December 31, 2013 or that is expected to result in the receipt of such amount by the Company and its Subsidiaries in the fiscal year ending December 31, 2014 or (2) to which any Top Customer is a party;
(xiv) any Contract that provides for any standstill or similar obligations to which the Company or any Company Subsidiary is subject or a beneficiary thereof, which is material to the Company and Company Subsidiaries taken as a whole (or, following the consummation of the transactions contemplated hereby, would consider important be material to Parent or any Parent Subsidiary, including the Surviving Corporation or the Surviving Company) (provided that the Company shall not be required to list the parties to any such agreements to the extent prohibited by confidentiality agreements existing prior to August 18, 2014); or
(xv) any Contract that is material to the business of the Company and the Company Subsidiaries, taken as a whole, that would or would reasonably be expected to prevent, materially delay or impair the consummation of the transactions contemplated hereby. All contracts of the types referred to in deciding clauses (i) through (xv) above (whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All on Section 3.19 of the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses Company Disclosure Schedule) are sometimes collectively referred to herein as “"Company Material Contracts”. ." The Seller Company has furnished made available to Parent or its Representatives prior to the Purchaser true, complete, date of this Agreement a complete and correct copies copy of all Material Contracts. Each each Company Material Contract sets forth as in effect on the entire agreement and understanding between date of this Agreement.
(b) Neither the Seller and Company nor any Subsidiary of the other parties thereto. Each Company is in breach or violation of or default in any respect under the terms of any Company Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orand, to the knowledge of the SellerCompany, any no other party thereto, to any Company Material Contract is in breach or could cause violation of or default in any respect under the acceleration terms of any obligation Company Material Contract and, to the knowledge of the Company, no event has occurred or loss not occurred through the Company's or any of its Subsidiaries' action or inaction or through the action or inaction of any rights third party, that with notice or the lapse of time or both would constitute a breach or violation of or default under the terms of any party thereto Company Material Contract, in each case except as has not had and would not reasonably be expected to have, individually or give rise to any right of termination or cancellation thereofin the aggregate, a Material Adverse Effect on the Company. To the knowledge of the SellerCompany, none each Company Material Contract (i) is a valid and binding obligation of the parties Company or the Subsidiary of the Company that is party thereto and of each other party thereto, and (ii) is in full force and effect, subject to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respectsthe Enforceability Exceptions. There are no disputes pending renegotiations of or, to the Company's knowledge, threatened with respect to any Company Material Contract and to neither the knowledge Company nor any of its Subsidiaries has received any written notice of the Seller, no intention of any other party to a Company Material Contract intends to terminateterminate for default, accelerate, cancel convenience or materially change the terms of otherwise any Company Material Contract, nor to the Company's knowledge, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
Appears in 1 contract
Material Contracts. Schedule 2.9 (a) Section 3.09(a) of the Disclosure Schedule sets Schedules lists each of the following Contracts of the Company or any of the Acquired Subsidiaries (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.10(b) of the Disclosure Schedules and all Company IP Agreements set forth a complete in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract of the Company or any of the Acquired Subsidiaries involving aggregate consideration in excess of $50,000 and accurate listwhich, in each case whether written case, cannot be cancelled by the Company without penalty or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving without more than $15,000.00, contingent or otherwise30 days’ notice;
(bii) all Contracts with respect that require the Company or any of the Acquired Subsidiaries to which Seller expects to receive payments, purchase its total requirements of any product or incur costs service from a third party or services, of more than $15,000.00 in any twelve-month periodthat contain “take or pay” provisions;
(ciii) all Contracts that may extend provide for a term of more than one year after the Closing other than indemnification by the Company or any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has Acquired Subsidiaries of any liability Person or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilitythe assumption of any Tax, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income environmental or other similar measure Liability of Seller or any other Person;
(fiv) distributionall Contracts that relate to the acquisition or disposition of any business, marketinga material amount of equity or assets of any other Person or any real property (whether by merger, resellersale of stock or other equity interests, partnersale of assets or otherwise);
(v) all broker, salesdistributor, dealer, manufacturer’s representative, franchise, agency, independent sales agency promotion, market research, marketing consulting and referral contractsadvertising Contracts to which the Company or any of the Acquired Subsidiaries is a party;
(gvi) Contracts, instruments all employment agreements and arrangements relating Contracts with independent contractors or consultants (or similar arrangements) to which the Company or any Indebtedness of the Acquired Subsidiaries is a party and which are not cancellable without material penalty or the guarantee thereofwithout more than 30 days’ notice;
(hvii) except for Contracts and other arrangements of Seller with any officerrelating to trade receivables, director, manager, stockholder, equity holder, or Affiliate of Seller;
all Contracts relating to Indebtedness (i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, guarantees) of the Company or any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsthe Acquired Subsidiaries;
(jviii) all Contracts with any Governmental Authority to which the Company or other arrangements which require any of the Seller to deliver services on Acquired Subsidiaries is a party (“fixed fee” or “not to exceed” basisGovernment Contracts”);
(kix) employment, severance, consulting, deferred compensation and similar agreementsall Contracts that limit or purport to limit the ability of the Company or any of the Acquired Subsidiaries to compete in any line of business or with any Person or in any geographic area or during any period of time;
(lx) any Contracts with respect to mergers which the Company or acquisitionsany of the Acquired Subsidiaries is a party that provide for any joint venture, sales partnership or similar arrangement by the Company or any of securities or material assets, or investments by Sellerthe Acquired Subsidiaries;
(mxi) all Contracts with Governmental Entities, including but not limited to between or among the Company or any franchise agreement, license agreement, of the Acquired Subsidiaries on the one hand and Seller or right any Affiliate of way use agreementSeller (other than the Company or any of the Acquired Subsidiaries) on the other hand;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(oxii) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans Union to which the Company or other arrangements of Seller outside any of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)Acquired Subsidiaries is a party; and
(txiii) any other agreements or Contracts which are Contract that is material to the Business, Company or any of the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or Subsidiaries and not to acquire the Acquired Assets to the extent not already listed and previously disclosed pursuant to this Section 3.09.
(b) Each Material Contract is valid and binding on the items set forth aboveCompany or the subject Acquired Subsidiary party thereto in accordance with its terms and is in full force and effect. All None of the foregoing Company or any of the Acquired Subsidiaries or, to Seller’s Knowledge, any other party thereto is in breach of or default under (whether written or unwrittenis alleged to be in breach of or default under), including all amendments or modifications theretohas provided or received any notice of any intention to terminate, all Real Estate Leasesany Material Contract. No event or circumstance has occurred that, FCC Licenseswith notice or lapse of time or both, and all IP Licenses are sometimes collectively referred to herein as “would constitute an event of default under any Material Contracts”Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Seller has furnished to the Purchaser true, complete, Complete and correct copies of all Material Contracts. Each each Material Contract sets forth the entire agreement (including all modifications, amendments, and understanding between the Seller supplements thereto and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, waivers thereunder) have been made available to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractBuyer.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Q2Earth Inc.)
Material Contracts. Except as specifically identified in subsections (a) through (1) of Schedule 2.9 3.10 of the Seller Disclosure Schedule sets forth Letter, Seller is not a complete and accurate list, in each case whether written party or unwritten, of all subject to any of the following Contracts, agreements and arrangements in connection with respect to the SellerBusiness:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00Contract providing for payments (whether fixed, contingent or otherwise) by or to Seller in an aggregate amount of $10,000 or more;
(b) Contracts with respect 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 which Seller expects to receive paymentssell, sublicense, lease, distribute, market or incur costs take orders for, any product, service or services, technology of more than $15,000.00 in any twelve-month periodSeller;
(c) Contracts that may extend any Contract providing for a term the development of more than one year after any software, content (including textual content and visual, photographic or graphics content), technology or Intellectual Property Right for (or for the Closing other than benefit or use of) Seller, or providing for the purchase by (or for the benefit or use of) or license to Seller of any vendor agreement entered into the Ordinary Course of Business that are not otherwise required software, content (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 be disclosed on Schedule 2.9 used or incorporated) in connection with any aspect or element of any Software, product, service or technology of Seller which is included in the Disclosure SchedulePurchased Assets;
(d) all agreements with Suppliers with respect any Contract which has involved, or is reasonably expected to which Seller has any liability involve, a sharing of revenues, profits, cash flows, expenses or obligation involving more than $15,000.00 and that is not terminable losses by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or 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 Business;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contractsany 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) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;Seller IP Rights Agreement (as defined in Section 3.12(b)); or
(h) Contracts and any other arrangements of Contract to which Seller with any officer, director, manager, stockholder, equity holder, is a party or Affiliate of Seller;
(i) Contracts or other arrangements by which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned of its assets or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which properties are bound that is material to the Business, the Acquired Assets, Business or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already Purchased Assets. A true and complete copy of each Contract and document required by subsections (a) through (h) of this Section 3.10 to be listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies on Schedule 3.10 of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and Disclosure Letter (the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event "MATERIAL CONTRACTS") has been delivered or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, made available to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractBuyer's counsel.
Appears in 1 contract
Sources: Asset Purchase Agreement (CDC Corp)
Material Contracts. (a) Schedule 2.9 4.8(a) of the Seller Disclosure Schedule sets forth lists, as of the date of this Agreement, all of the following Contracts to which any Acquired Company is a complete party or to which Seller or any of its Controlled Affiliates is a party that is a Shared Contract or primarily relates to the Business and accurate listthat are in effect and not entirely fulfilled or performed as of the date of this Agreement (collectively, the “Material Contracts”):
(i) any master-level or similar principal Contract with a Key Customer (collectively, the “Key Customer Contracts”);
(ii) any master-level or similar principal Contract with a Key Vendor (collectively, the “Key Vendor Contracts”);
(iii) any master-level or similar principal Contract with an OCL Key Channel Partner (collectively, the “Key Channel Partner Contracts”);
(iv) any master-level or similar principal Contract with a ▇▇▇▇▇▇ Key Course Developer (collectively, the “Key Course Developer Contracts”);
(v) any Contract that (A) requires Seller or any of its Controlled Affiliates (including the Acquired Companies) to deal exclusively with a third party in connection with the sale or purchase of any product or service or to purchase all or substantially all of its requirements for a particular product or service from a vendor, supplier or contractor, (B) contains any covenant not to compete, binding any Acquired Company or other covenant materially restricting the distribution of the products and services of any Acquired Company or (C) contains “most favored nation,” minimum purchase requirements or similar preferential pricing terms, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwisenot terminable for convenience;
(bvi) Contracts with respect any Contract that relates to which Seller expects to receive paymentsan acquisition or divestiture of business, material assets or securities, or incur costs any equity (or servicesequity-linked debt) or debt investment in, or any advance, loan, extension of more credit or capital contribution to, any Person (other than $15,000.00 extensions of trade credit in any twelve-month periodthe ordinary course of business and purchases of supplies in the ordinary course of business);
(cvii) Contracts that may extend for a term any Contract relating to Indebtedness for, or guarantees by any Acquired Company of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course obligation for, borrowed money in an aggregate principal amount in excess of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule$250,000;
(dviii) all agreements any Contract providing for sharing of profits or losses by an Acquired Company with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distributionPerson and any joint venture, marketingpartnership, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreementsarrangement;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(six) any agreements with Contract pursuant to which (A) an outbound license is granted or (B) an inbound license is granted, in each case to any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are Intellectual Property material to the Business, and in each case other than Contracts (1) concerning generally commercially available “off the shelf” software, services, hardware or other technology and similar agreements entered into in the ordinary course of business with a replacement value of less than $300,000, (2) in which grants of rights to use Intellectual Property are incidental to and not material to performance under the Contract, (3) with customers that are non-exclusive and entered into in the ordinary course of business; (4) with contractors or employees in the ordinary course of business substantially on the terms of the Acquired AssetsCompanies’ standard form of Intellectual Property assignment agreement; or (5) immaterial exclusive licenses for content published in trade magazines by employees, course developers, and consultants of the Acquired Companies;
(x) any Contract limiting or restraining in any material respect Seller or any of its Controlled Affiliates (including the Acquired Companies) from competing with any Person in any location or in any business;
(xi) any Contract with any instructor, officer, individual employee, individual independent contractor, freelancer or other natural Person (other than oral at-will employment arrangements or standard offer letters without severance) with an annual compensation in excess of $150,000;
(xii) any Labor Agreement;
(xiii) any lease, sublease or similar Contract with any Person under which (A) any Acquired Company is lessee of, or the Sellerholds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person or (B) any Acquired Company is a lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by such Acquired Company;
(xiv) any (A) continuing Contract for the future purchase of materials, supplies or equipment (other than purchase contracts and orders for supplies in the ordinary course of business), (B) management, service, consulting or other similar Contract or (C) advertising Contract, in any such case which a reasonable purchaser would consider important has an outstanding liability to any Person in deciding whether excess of $300,000 and which cannot be terminated by the Seller or not to acquire any of its Controlled Affiliates (including the Acquired Assets Companies) without cause on ninety (90) days’ or less notice;
(xv) any Contract providing for indemnification of any Person with respect to liabilities other than Contracts that contain or provide for an undertaking by an Acquired Company to indemnify or make any indemnification payments to any Person (i) which have expired or (ii) pursuant to (A) standard indemnification terms and conditions entered into in the ordinary course of business, (B) any Contract for the incurrence of any Indebtedness or (C) any lease of real property;
(xvi) any Contract containing requirements to maintain letters of credit, performance bonds, payment bonds or other similar arrangements;
(xvii) any material Contract with any current or former director, officer, Affiliate or equityholder of any Acquired Company (excluding employment agreements and Benefit Plans);
(xviii) any Contract with a Governmental Authority (hereinafter, a “Government Contract”) that is currently active in performance with a total estimated contract value of $100,000 or more;
(xix) any Contract that is a settlement, conciliation or similar agreements with any Governmental Authority or Person or pursuant to which any Acquired Company will have any material outstanding obligation after the date of this Agreement;
(xx) other Contracts that involve currently outstanding liabilities of any Acquired Company in excess of $1,000,000; and
(xxi) other Contracts that involve currently outstanding payments to any Acquired Company in excess of $1,000,000.
(b) As of the date of this Agreement, except as would not reasonably be expected to be, individually or in the aggregate, material to the extent not already listed and disclosed pursuant to Business, (i) each of the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract Contracts is valid, binding and in full force and effect and is enforceable by the Acquired Company (or Seller or its Affiliates, as applicable) in accordance with its terms. There is , (ii) there exists no material default under any such Material Contracts by any Acquired Company or, to Seller’s Knowledge, any other party to such Material Contracts and no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute time or the giving of notice or both would result in a material default or breach under any such Material Contract by Seller an Acquired Company and (iii) there exists no actual or, to the knowledge of the Seller’s Knowledge, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of threatened termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and neither Seller nor any Acquired Company has received any written notice, or to the knowledge Seller’s Knowledge, other notice of the Seller, no intention of any party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of and adversely alter, any Material Contract. Seller has made available to Purchaser a true, correct and complete copy of each Material Contract that is in effect as of the date of this Agreement.
(c) With respect to Government Contracts within the past three (3) years: (i) the Business has maintained necessary and adequate performance qualifications, certifications, approvals, policies and controls to promote, and has been in, material compliance with contract requirements, laws and regulations pertaining to Government Contracts; (ii) representations and certifications applicable to such Government Contracts or to bids or proposals for prospective Government Contracts were accurate in all material respects when made; (iii) invoices submitted were accurate in all material respects and any required adjustments have been promptly reported and credited to the customer; (iv) the Business has not made or submitted any express or implied false or fraudulent claim or statement to any Governmental Authority or any higher-tier contractor in connection with a Government Contract or with respect to the issuance or approval of any Government Contract; (v) no Government Contract was awarded on the basis of any “Small Business” or preferred bidder designation (and none of the Business’ expected sales revenue will be diminished as a result of any loss of such status in connection with the transactions contemplated hereby) or provides for payment on the basis of incurred costs or was based on a disclosure of internal costs or the pricing offered to other customers or a pricing guarantee, or includes a duty to accumulate, allocate or report costs of performance, or requires or involves access to classified information or facilities, or requires customization of software for a Governmental Authority or customer or provides software rights to the Business’ intellectual property (other than Government Contracts under which the customer is granted a standard license to commercial computer software); (vi) the Business has not asserted or received written notice of an alleged material violation or breach of representation, certification, disclosure obligation, or contract term, condition, clause, provision or specification with any respect to a Government Contract, nor any written notice of breach or for cure, show cause, deficiency, default, termination, inaccurate certification, improper billing, false or reckless claim, false statement, fraud, kickback or violation of Law arising under or related to a Government Contract or to bids or proposals for prospective Government Contracts, nor are there any related pending claims, disputes, litigation or administrative or judicial proceedings, arbitrations or mediations; (vii) neither the Business nor its officers, directors, principals, owners, managers nor (to the Seller’s Knowledge) employees or agents has been suspended, debarred or excluded by a Governmental Authority (nor to the Seller’s Knowledge, been threatened with suspension, debarment or exclusion) nor been in violation of any applicable restriction on conflict of interest, lobbying, political activity or the offering or giving of anything of value to a representative of a Governmental Authority; and (viii) the Business has not received or provided written (nor to the Seller’s Knowledge, any oral) notice of audit or investigation by a Governmental Authority in connection with a Government Contract.
Appears in 1 contract
Sources: Equity Purchase Agreement (Adtalem Global Education Inc.)
Material Contracts. Schedule 2.9 Section 4.01(p) of the Company Disclosure Schedule sets forth a complete and accurate listlist of all Contracts that fall within the following categories: (i) any "material contract" (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC); (ii) any Contract that involves payments or receipts by or to the Company and/or its Subsidiaries in an amount in excess of $1 million, except for any such Contract that may be canceled, without penalty or other Liability to the Company or any of its Subsidiaries, upon notice of thirty (30) calendar days or less; (iii) any Contract that grants any right of first refusal or right of first offer or that limits or purports to limit the ability of the Company of any Subsidiary of the Company to own, operate, sell, transfer or otherwise dispose of any material amount of assets or businesses; (iv) any Contract pursuant to which the Company or any of its Subsidiaries has incurred any Indebtedness; (v) any Contract with respect to co-promotion of, or collaboration with respect to, any product or product candidate; (vi) any joint venture or partnership agreement; (vii) any Contract under which the Company or any Subsidiary expressly grants any license to use or exploit, covenant not to ▇▇▇, immunity from suit or similar rights under any patents or know-how (except for any Contract granting non-exclusive license rights for the primary purpose of (A) conducting clinical research, entered into with a clinical research organization, (B) material transfer, sponsored research, or other similar matters, (C) establishing confidentiality or non-disclosure obligations, (D) conducting clinical trials, or (E) manufacturing, labeling or distributing the Company's Pharmaceutical Products for clinical trials); (viii) any Contract under which the Company or any Subsidiary is expressly granted any license, covenant not to ▇▇▇, immunity from suit or similar rights under any Intellectual Property in each case material to the Company and its Subsidiaries taken as a whole, excluding non-exclusive licenses with respect to software that is generally commercially available; (ix) any Contract that materially limits or otherwise restricts in any material respect the ability of the Company or any of its Subsidiaries (or, after the consummation of the Offer or the Merger, Parent, the Company or any of their respective Subsidiaries or any successor thereto) to engage or compete in any line of business or to sell, supply, or distribute any product or service, in each case whether written case, in any location, or unwrittento compete with any Person; (x) any Contract with or binding upon the Company or any of its Subsidiaries or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (xi) any agreement that, by its terms, limits the payment of dividends or other distributions by the Company or any of its Subsidiaries; and (xii) all Real Property Leases (the Contracts specified in clauses (i) through (xii), collectively, the "Company Material Contracts"), other than any Company Material Contract of the type described in clause (vii) above which is set forth on Attachment 1.22(k) to the PDL Separation Agreement. True and complete copies of all Company Material Contracts and all amendments to or waivers thereunder have been made available by the Company to Parent. Each of the following ContractsCompany Material Contracts is a valid, agreements binding and arrangements enforceable obligation of the Company or its Subsidiaries, and is in full force and effect. Except as a result of the occurrence of the execution and delivery of this Agreement or the occurrence of the consummation of the Offer: no event has occurred with respect to the Seller:
(a) Contracts with respect Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries, nor to which Seller the Company's Knowledge any other party to a Company Material Contract, has violated any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive paymentsprovision of, or incur costs taken or servicesfailed to take any action, of more than $15,000.00 which in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or whichcase, with or without noticenotice or lapse of time or both, the happening of any event and/or the passage of time, could would constitute a default material breach, violation or breach under any such Material Contract by Seller ordefault, to the knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any a right of termination termination, modification, cancellation, foreclosure, imposition of a Lien (other than a Permitted Lien), prepayment or cancellation thereofacceleration under any of the Company Material Contracts, and neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted any Company Material Contract. To the knowledge Company's Knowledge, neither the Company nor any of the Seller, none of the parties its Subsidiaries has received any written notice from any other party to any Company Material Contract have informed Seller Contract, and otherwise has no Knowledge, that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no such party to a Material Contract intends to terminate, accelerateor not to renew, cancel or materially change the terms of any such Company Material Contract. Prior to the Agreement Date, the Company and its Subsidiaries have not received any written claims for indemnification pursuant to the PDL Separation Agreement.
Appears in 1 contract
Material Contracts. Schedule 2.9 (a) Section 3.10(a) of the Disclosure Schedule Schedules sets forth a correct and complete list of each of the following Contracts (or a description thereof, in the case of oral Contracts) to which the Corporation or any of its Subsidiaries is a party or by which any of them or their properties, rights or assets are bound and accurate listwhich are in effect on the Effective Date:
(i) any Contract that is or is reasonably likely to require expenditures (including capital expenditures) or payments to or from the Corporation or any of its Subsidiaries in excess of $50,000, individually or in the aggregate, in any calendar year, other than those that can be terminated without premium or penalty by the Corporation or its Subsidiaries upon not more than one hundred and twenty (120) days’ notice;
(ii) all Contracts involving any material resolution or settlement of any actual or threatened, in writing, litigation, arbitration, claim or other dispute;
(iii) all Contracts which contain restrictions with respect to the payment of dividends or any other distribution in respect of the Equity Interests of the Corporation or any of its Subsidiaries;
(iv) all Contracts pursuant to which the Corporation or any of its Subsidiaries has an obligation to make an investment in or loan to any Person, in each case whether written or unwrittencase, of all other than in the ordinary course of the following Contractsorigination or loan servicing businesses of the Corporation or any of its Subsidiaries consistent with past practice;
(v) any Contract under which the Corporation or any of its Subsidiaries is obligated to sell or lease as lessor real or personal property having a value in excess of $50,000 in any single given annual period;
(vi) any Contract that contains a covenant not to compete applicable to the Corporation or any of its Subsidiaries or any of their Affiliates by virtue of such affiliation or that binds the Corporation or any of its Subsidiaries to any exclusive business arrangements or licenses;
(vii) any Contract granting a customer of the Corporation or any of its Subsidiaries “most favored nation” or similar terms (whether in respect of pricing or otherwise);
(viii) any management, distributor, consultant, representative, financial advisory, broker or similar type of Contract and any Contract with any investment or commercial bank, that is not terminable by the Corporation or any of its Subsidiaries at will and without liability;
(ix) any joint venture, partnership, strategic alliance or teaming Contract or other similar co-ownership or joint management agreements and involving a sharing of profits, losses, costs or liabilities by the Corporation or any of its Subsidiaries with any Person (other than the Corporation or any of its Subsidiaries);
(x) any Contract under which the Corporation or any of its Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) (x) indebtedness for borrowed money, including, without limitation Warehouse Facilities and/or any financing arrangements with respect to the Seller:
Servicing Rights and Servicing Advances of the Corporation or any of its Subsidiaries (a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments“Existing Financing Facilities”), or incur costs (y) other Indebtedness which, individually or servicesin the aggregate, of more than exceeds $15,000.00 in 50,000, (B) granted a Lien on its assets, whether tangible or intangible, to secure Indebtedness or (C) extended credit to any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(fxi) distributionany Affiliate Contract and any Contract between any Seller or its Related Persons, marketingon the one hand, resellerand any Employee, partner, sales, agency, independent sales agency and referral contractson the other hand;
(gxii) Contractsany collective bargaining, instruments labor or similar Contract and arrangements relating to any Indebtedness Contract between the Corporation or the guarantee thereofany of its Subsidiaries and any Professional Employer Organization;
(hxiii) Contracts and any Contract related to Intellectual Property used in the operation of the Corporation’s or any Subsidiary’s business, other arrangements than unmodified, commercially available, off-the-shelf, shrink-wrap, click-wrap or non-exclusive software licenses with an aggregate value of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Sellerless than $100,000;
(ixiv) Contracts any Contract with any Agency or other Governmental Entity (whether as prime contractor, subcontractor or otherwise), including any performance bonds or similar arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisionsrelated thereto;
(jxv) Contracts any stock purchase, asset purchase, merger, consolidation or other arrangements which require acquisition or divestiture agreement relating to the Seller to deliver services on acquisition, lease, license, disposition or consolidation by the Corporation or any of its Subsidiaries of assets (other than in the ordinary course of business consistent with past practice), properties, rights or any capital stock or other Equity Interests of any Person (x) providing for any indemnification, guaranty or surety obligation of the Corporation or any of its Subsidiaries or (y) with a “fixed fee” or “not to exceed” basisfair market value in excess of $50,000;
(kxvi) employmentany stockholders’ or similar Contract, severanceor Contract relating to the establishment, consulting, deferred compensation and similar agreementsmanagement or control of any joint venture or strategic alliance;
(lxvii) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Sellerany Servicing Agreement;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(sxviii) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation Contract the termination of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment which would reasonably be expected to such entity’s poles or conduits (“Pole Attachment Agreements”)have a Material Adverse Effect; and
(txix) other agreements or any outstanding written commitment to enter into any Contract of the type described in subsection (i) through (xviii) of this Section 3.10(a). All Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All in Section 3.10(a) of the foregoing (whether written or unwritten)Disclosure Schedules and any Contract required to be set forth therein, including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses but omitted therefrom are sometimes collectively referred to herein as “Material Contracts”. .” The Seller Corporation has furnished made available to Buyer a correct and complete copy of each Material Contract (including any and all amendments and other modifications to such Contract) prior to the Purchaser trueEffective Date.
(b) Except as set forth in Section 3.10(b) of the Disclosure Schedules, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each (i) each Material Contract is valid, binding and in full force and effect and is the legal, valid and binding obligation of the Corporation or its Subsidiary, as applicable, and is enforceable against the Corporation or its Subsidiary, as applicable, in accordance with its terms. There , and, to the Knowledge of the Corporation, is no event or condition which has occurred or exists which constitutes or whichthe legal, with or without noticevalid and binding obligation of the other parties thereto (the “Other Parties”), and (ii) neither the happening Corporation nor any of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller its Subsidiaries or, to the knowledge Knowledge of the SellerCorporation, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties Other Parties to any Material Contract is, or is alleged to be, in breach, violation or default, and, to the Knowledge of the Corporation, no event has occurred which with notice or lapse of time or both would constitute a breach, violation or default by any such party, or permit termination, modification or acceleration by the Other Parties, under such Material Contract.
(c) Neither the Corporation nor any of its Subsidiaries has waived any right it may have informed Seller that it will not fulfill its obligations thereunder in all material respectsunder any Material Contract. There are no pending renegotiations No party has provided any written or oral notice of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends intention to terminate, accelerate, cancel modify or materially change the terms of accelerate any Material Contract.
(d) No consent of any other party to any Material Contract is required in connection with the performance of this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Walter Investment Management Corp)
Material Contracts. Schedule 2.9 (i) Except as set forth in Section 6.1(k)(i) of the Company Disclosure Schedule sets forth a complete and accurate listLetter, in each case whether written or unwritten, of all as of the following Contractsdate of this Agreement, agreements and arrangements with respect neither the Company nor its Subsidiaries is a party to the Selleror bound by any Contract:
(aA) Contracts with that restricts in any respect the ability of the Company or any its Subsidiaries (or, after the Effective Time, Parent or any its Subsidiaries, including the Surviving Corporation) to which Seller has engage in any liability business in any geographic area, including employee or obligation involving more than $15,000.00, contingent or otherwisecustomer non-solicit obligations;
(bB) Contracts with respect that relates to which Seller expects to receive paymentsthe acquisition or disposition (whether by merger, sale of stock, sale of assets or incur costs otherwise) of any Person or servicesline of business or the future acquisition or disposition (whether by merger, sale of more than $15,000.00 in stock, sale of assets or otherwise) of any twelve-month periodPerson or line of business;
(cC) Contracts that may extend for a term relating to Indebtedness of more than one year after the Closing Company or its Subsidiaries or to the mortgaging, pledging or otherwise placing of any Lien (other than a Permitted Lien) on any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 portion of the Disclosure Scheduleassets, properties or rights of the Company or any of its Subsidiaries;
(dD) all agreements with Suppliers with respect that, upon the execution or delivery of this Agreement or the consummation of the Merger, would result in any payment (whether of severance pay or otherwise) becoming due from the Company to which Seller has any liability officer or obligation involving more employee thereof, other than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premiumCompany Equity Award agreements;
(eE) Contracts under which the amount payable by Seller is dependent that was not negotiated and entered into on the revenue, income or other similar measure of Seller or any other Personan arm’s-length basis;
(fF) distributionthat contains a put, marketingcall or similar right pursuant to which the Company could be required to purchase or sell, reselleras applicable, partner, sales, agency, independent sales agency and referral contractsany equity interests of any Person or assets;
(gG) Contracts, instruments and arrangements relating to that grants any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, right of first offer or similar right with respect to any assets, rights or properties of the Company or its Subsidiaries;
(H) which relates to any material property of the Company or any of its Subsidiaries, including all licenses of Intellectual Property that are material to the Company or any of its Subsidiaries (excluding commercially available, off-the-shelf Software that is not combined with or linked to, other than through hyperlink, any Software that is Owned Intellectual Property and that has a replacement cost of less than $50,000) or Contracts pursuant to which the Company or any of its Subsidiaries leases or subleases any real property to or from any Person;
(I) pursuant to which (A) during calendar year 2019, the Company and its Subsidiaries collectively made or received aggregate payments or other value in excess of $150,000, or (B) during calendar year 2020, the Company and its Subsidiaries would reasonably be expected to collectively make or receive aggregate payments or other value in excess of $150,000;
(J) to which any officer, manager, director, Holder or Affiliate of any of the foregoing is a party, other than Company Equity Award agreements;
(K) is a settlement or conciliation agreement with respect to any Legal Proceeding or any consent decree;
(L) is a franchising or licensing agreement;
(M) to which a Governmental Entity is a party;
(N) requires the Company and/or any of its Subsidiaries to purchase from any Person its total requirement of any product or service;
(O) contains any “take or pay” obligation or minimum purchase requirements binding upon or in favor of the Company or any of its Subsidiaries;
(P) contains any grant by or to the Company or any of its Subsidiaries of any “most favored nation” pricing or exclusivity provisions;
(jQ) Contracts which provides for any joint venture, partnership or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(nR) strategic alliancethat prohibits or restricts (1) the payment of dividends or distributions with respect to the equity interests of the Company or any of its Subsidiaries, co-marketing, joint development (2) the pledging of any equity interests of any of the Company or similar agreementsany of its Subsidiaries or (3) the issuance of guarantees by the Company or any of its Subsidiaries;
(oS) all collective bargaining agreements relating to the development, ownership, license, use, registration or Contracts with enforcement of or exercise of any unionrights under any Intellectual Property;
(pT) powers contains an outstanding power of attorneyattorney empowering any Person to act on behalf of the Company or any of its Subsidiaries;
(qU) agreements, Contracts, instruments, commitments, plans or other arrangements contains covenants requiring capital expenditures in excess of Seller outside of $150,000 in the Ordinary Course of Businessaggregate;
(rV) agreements, licenses, permits, registrations, which is a power-of-attorney granted by or other approvals with respect to the Uruguayan Subsidiary or any Governmental Entityof its quotas;
(sW) any agreements which is a collective bargaining agreement with any Governmental Entity union or non-governmental entity that owns other agency or controls any utility poles, conduits, representative body certified or rights-of-way governing Seller’s attachment or installation otherwise recognized for the purposes of fiber optic lines, coaxial cables, bargaining collectively; or
(X) which is with the SBA or any other Seller owned or controlled facilities or equipment Person relating to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, a PPP Loan or the Seller, or which a reasonable purchaser would consider important CARES Act. Each such Contract described in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing clauses (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively A) through (X) is referred to herein as a “Company Material ContractsContract”. The Seller has furnished .
(ii) Neither the Company nor any of its Subsidiaries is in material breach of or default under the terms of any Company Material Contract and, to the Purchaser trueKnowledge of the Company, completeno other party to any Company Material Contract is in material breach of or default under the terms of any Company Material Contract. No event has occurred or not occurred through the Company’s or its Subsidiary’s action or inaction or, and correct copies to the Knowledge of all the Company, through the action or inaction of any third party, that with notice or the lapse of time or both, would constitute a material breach of or default under the terms of any Company Material ContractsContract. Each Company Material Contract sets forth is a valid and binding obligation of the entire agreement and understanding between Company and/or its applicable Subsidiaries party thereto and, to the Seller and Knowledge of the Company, of each other parties party thereto. Each Company Material Contract is valid, binding and in full force and effect and is enforceable against the Company and its applicable Subsidiaries and, to the Knowledge of the Company, each other party thereto, in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws affecting the rights of creditors generally and general equitable principles (whether considered in a proceeding in equity or at law). There Neither the Company nor any of its Subsidiaries is no event participating in any discussions or condition which has occurred negotiations regarding modification, amendment or exists which constitutes or which, with or without notice, the happening termination of any event and/or the passage Company Material Contract. Since January 1, 2018, there has been no termination of time, could constitute a or notice of default or breach force majeure under any such Material Contract by Seller or, to the knowledge Knowledge of the SellerCompany, any other party thereto, or could cause the acceleration threatened termination of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereofCompany Material Contract. To the knowledge Knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the SellerCompany, no party to a any Company Material Contract intends to terminatealter its relationship with the Company or its applicable Subsidiary as a result of or in connection with the Merger or otherwise. None of the Company Material Contracts are subject to re-bid or re-tender by the Company or its applicable Subsidiary at any time prior to the first anniversary of the date of this Agreement. A true, accelerate, cancel or materially change the terms complete and correct copy of any each Company Material ContractContract has been made available to Parent.
Appears in 1 contract
Sources: Agreement and Plan of Merger (KAR Auction Services, Inc.)
Material Contracts. Schedule 2.9 of the Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Contracts with respect Section 3.07(a) of the Seller Disclosure Schedules sets forth each Contract as of the date hereof that relates primarily to the Business or to which Seller has any liability the Purchased Assets are bound that falls within one or obligation involving more than $15,000.00, contingent or otherwise;
categories listed below in this Section 3.07(a) (b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) such Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;“Material Contracts”):
(i) Contracts any Contract that (A) provides for payment to a Seller for the provision of goods or other arrangements which place any limitation on the method performance of conducting services in an amount in excess of $100,000 annually or scope (B) as of the Business including, without limitation, date hereof has a backlog that is reasonably expected to involve receipt by a Seller of total consideration in excess of $100,000;
(ii) any agreement Contract for the provision of goods or the performance of services with over $100,000 of remaining performance obligations;
(iii) any Contract that would be reasonably expected to require payments by a Seller in excess of $50,000 annually;
(iv) any Contract for capital expenditure obligations in excess of $50,000;
(v) any Contract with a Principal Customer or Principal Vendor;
(vi) any Contract that contains any exclusivitypreferential pricing provisions, non-competition, non-solicitation, no-hire, right of first refusal, such as “most favored customer” or “most favored nation” provisions, or otherwise restricts the right of a Seller to freely set prices for its products, services and technologies;
(jvii) Contracts or any Contract pursuant to which any other arrangements which require the Seller to deliver services on a “fixed fee” party is granted exclusive rights or “not to exceedmost favored party,” basis“preferred party” rights, rights of first refusal, rights or first negotiation or any similar rights;
(kviii) employmentany distribution, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect dealer representative or sales agency Contract that is exclusively related to mergers the Business or acquisitions, sales of securities or material assets, or investments exclusively used by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of a Seller outside of in the Ordinary Course of Business;
(rix) agreementsany partnership, licensesjoint development, permits, registrations, joint venture or other approvals with any Governmental Entitysimilar Contract in respect of the Business;
(sx) any agreements Shared Contract;
(xi) any Contract providing for a settlement or resolution of any pending or threatened Proceeding with any Governmental Entity Person;
(xii) any Contract relating to Indebtedness (including guarantees, bonds and letters of credit) that is an Assumed Liability, other than any Contract establishing Permitted Liens, including any trust indenture, mortgage, promissory note, loan agreement or other Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP or that otherwise imposes any Lien on the Purchased Assets (other than Permitted Liens);
(xiii) any Contract (A) containing a non-governmental entity competition or exclusivity provision that owns limits or controls restricts the ability of a Seller to operate or compete in any utility polesgeographic area or line of business, conduits, or rights-of-way governing (B) that limits a Seller’s attachment freedom to solicit or installation hire potential employees, consultants, contractors or other suppliers or customers or (C) containing any “take or pay,” minimum commitments or similar provisions;
(xiv) any CBA;
(xv) any Contract pursuant to which any of fiber optic linesthe Sellers receive a license to Intellectual Property from another Person that is (A) included or embodied in any Transferred Product (other than licenses for Open Source Materials, coaxial cablesincluding those set forth on Schedule 3.13(e)) or (B) primarily related to the Business (other than licenses for Commercial Software or Open Source Materials);
(xvi) any Contract pursuant to which any Business Intellectual Property is licensed to another Person (other than (A) incidental, non-exclusive trademark licenses, (B) non-exclusive licenses granted to employees, contractors or consultants performing services for or on behalf of the Business and (C) the customer agreements that constitute Assigned Contracts that are listed on Schedule 2.01(a)(iv)(A), in each case, entered into in the ordinary course of business);
(xvii) any Contract for the purchase or sale of real property by the Sellers relating to the Business;
(xviii) (A) the Real Property Leases, and (B) any other Contract relating to any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving expenditures in excess of $100,000 per annum;
(xix) any Contract with a Governmental Authority;
(xx) any Contract between or among any Seller on the one hand and any Seller Related Party on the other hand;
(xxi) any Contract relating to the disposition or acquisition, (whether by merger or sale or purchase of stock, assets or otherwise) of any assets of, or any other Seller owned equity interest in, the Business or controlled facilities or equipment any business enterprise that relates to such entity’s poles or conduits (“Pole Attachment Agreements”)the Business, in each case outside the ordinary course of business consistent with past practice; and
(txxii) any other agreements Contract, or Contracts which are amendment, exhibit, schedule, addendum or modification thereto, that is otherwise material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items .
(b) Except as set forth above. All on Section 3.07(b) of the foregoing Seller Disclosure Schedules, (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each i) each Material Contract sets forth the entire agreement and understanding between listed on Section 3.07(a) of the Seller and the other parties thereto. Each Material Contract Disclosure Schedules is valid, binding and in full force and effect and is a legal, valid and binding obligation of a Seller, enforceable against such Seller in accordance with its terms. There is , except, in each case, as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws now or hereinafter in effect relating to or affecting creditors’ rights generally, or by general equitable principles, (ii) no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller ornor, to the knowledge Knowledge of the SellerSellers, any other Person that is party thereto, thereto is in default under or could cause the acceleration in breach of any obligation Material Contract, and, to the Knowledge of Sellers, there does not exist any event, occurrence, condition or loss of any rights of any party thereto omission that would constitute or give rise to such a breach or default, whether by lapse of time or due notice or both, and (iii) no Seller has received or given any right written notice of, and to the Knowledge of termination Sellers there is no threatened, termination, cancellation or cancellation thereof. To the knowledge of the Seller, none of the parties non-renewal that is currently in effect with respect to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respectsContract. There are no pending renegotiations of any Material Contract and to the knowledge As of the SellerAgreement Date Sellers have made available to Buyer true, no party to a correct and complete copies (including amendments, exhibits, schedules and modifications) of all Material Contract intends to terminate, accelerate, cancel or materially change Contracts disclosed on Section 3.07(a) of the terms of any Material ContractSeller Disclosure Schedules.
Appears in 1 contract
Material Contracts. (a) Except as set forth in Schedule 2.9 3.14 of the BHB Disclosure Schedule sets forth Schedules, none of BHB and the BHB Subsidiaries is a complete and accurate listparty to or bound by:
(i) any contract, in each case arrangement, commitment or understanding (whether written or unwritten, oral) in an amount in excess of all of the following Contracts, agreements and arrangements $25,000 with respect to the Seller:
(a) Contracts with respect to which Seller has employment, severance, termination or compensation of any liability directors, officers or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and employees that is not terminable by Seller without liability on thirty 30 days' (30or less) days or less prior written notice without material liability, penalty or premiumnotice;
(eii) Contracts under which any contract, arrangement, commitment or understanding (whether written or oral) which, upon the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope consummation of the Business transactions contemplated by this Agreement, will (either alone or upon the occurrence of any additional acts or events) result in any payment (including, without limitation, any agreement that contains any exclusivityseverance, non-competitionunemployment compensation, non-solicitationgolden parachute or otherwise) becoming due from BHB, no-hireBuyer, right of first refusalthe Surviving Corporation, or “most favored nation” provisionsany of their respective subsidiaries to any officer, director or employee thereof or to the trustee under any "rabbi trust" or similar arrangement;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(siii) any agreements with any Governmental Entity contract, arrangement, commitment or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing understanding (whether written or unwrittenoral), including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased or be required to be paid, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, or the value of any of the benefits of which will be calculated on the basis of the transactions contemplated by this Agreement;
(iv) any agreement of indemnification or guaranty between BHB or any BHB Subsidiary and any of their officers or directors;
(v) any agreement, contract or commitment currently in force relating to the disposition or acquisition of any of BHB's or any BHB Subsidiary's assets or business (other than dispositions or acquisitions made in the ordinary course or dispositions or acquisitions less than $100,000);
(vi) any voting agreement, voting trust, shareholder agreement or other similar agreement which restricts the voting or disposition of BHB Common Stock;
(vii) any partnership, limited liability company, joint venture or other similar agreement or arrangement, or any options or rights to acquire from any person any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of such person;
(viii) any agreement that restricts or contains limitations on the ability of BHB or any BHB Subsidiary to compete in any line of business (including geographic limitations), to solicit customers or to solicit or hire employees;
(ix) any agreement which relates to funded indebtedness owed by BHB or any BHB Subsidiary, or the guarantee thereof (other than contracts evidencing deposit liabilities, purchases of federal funds, repurchase agreements, trade payables and contracts relating to borrowings or guarantees made in the ordinary course of business);
(x) any mortgage, pledge, indenture or security agreement or similar agreement (whether incurred, assumed, guaranteed, secured by any asset or otherwise) constituting a lien upon the assets or properties of BHB or any BHB Subsidiary;
(xi) any agreement for the sale or purchase of personal property having a value individually, with respect to all amendments sales or modifications theretopurchases thereunder, all Real Estate Leasesin excess of $250,000, FCC Licensesother than in the ordinary course of business;
(xii) any agreement involving intellectual property or relating to the provision of data processing, network communication or other technical services to or by BHB or any BHB Subsidiary, other than agreements entered into in the ordinary course of business;
(xiii) any lease or license of personal property (whether tangible or intangible, including intellectual property and software), whether as licensor or licensee involving payments or receipts in excess of $50,000;
(xiv) contract or commitment for the performance of services involving an amount in excess of $50,000; or
(xv) any other agreement, if the performance remaining thereunder involves aggregate consideration to or by BHB or any BHB Subsidiary in excess of $250,000 per annum, and all IP Licenses are sometimes collectively such agreement is not cancelable, without material penalty, by BHB or any BHB Subsidiary on 180 days' or less notice.
(a) is referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, a "BHB Contract," and correct copies a copy of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material each BHB Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, attached to the knowledge Schedule 3.14(a) of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereofBHB Disclosure Schedules. To the knowledge of BHB, BHB and each of the SellerBHB Subsidiaries is not in violation of any BHB Contract and is unaware of and has received no written notice of any violation of any BHB Contract by any of the parties thereto and neither BHB nor any BHB Subsidiary has waived any right under any BHB Contract.
(i) Each BHB Contract is valid and binding on BHB or the applicable BHB Subsidiary, as the case may be, and is in full force and effect,
(ii) To the knowledge of BHB, BHB and the BHB Subsidiaries have each performed all obligations required to be performed by it to date under each BHB Contract to which it is a party, except where such noncompliance, individually or in the aggregate, would not give rise to remedies under the applicable BHB Contract, and
(iii) To the knowledge of BHB, no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute, a default on the part of BHB or any BHB Subsidiary under any such BHB Contract, except where any such default would not give rise to remedies under the applicable BHB Contract, and
(iv) Except as disclosed on Schedule 3.14 of the BHB Disclosure Schedules, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations BHB Contracts contain an express prohibition against a change of any Material Contract and control of BHB or a BHB Subsidiary (or require written consent or notice to the knowledge other party), or contain any other provision which would preclude Buyer from exercising and enjoying all of the Sellerrights, no party to remedies and obligations of BHB or a Material Contract intends to terminateBHB Subsidiary, accelerateas the case may be, cancel or materially change the terms of any Material Contractunder such BHB Contracts.
Appears in 1 contract
Material Contracts. Schedule 2.9 of the
(a) Disclosure Schedule 5.10 sets forth a complete and accurate list, in each case whether written or unwritten, list of all 365 Contracts identified as of the date hereof that fall within the following categories (collectively, the “Material Contracts”):
(i) any material lease or sublease of real property included as an Asset (whether a Selling Entity is lessor, agreements and arrangements with respect sublessor, lessee or sublessee), to the Seller:
(a) Contracts with respect to which Seller has any liability extent such lease or obligation involving more than $15,000.00, contingent or otherwisesublease is in written form;
(bii) Contracts other than purchase orders issued in the ordinary course of business, consistent with respect to which Seller expects to receive paymentspast practices, any Contract for the purchase or incur costs supply of goods or services, services providing for either (A) annual payments by the Business of $5,000,000 or more; or (B) annual receipts by the Business of more than $15,000.00 20,000,000 in any twelve-month periodcalendar year;
(ciii) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedulepartnership agreement, joint venture agreement, strategic alliance, stockholders’ agreement, or limited liability company agreement;
(div) all agreements with Suppliers with respect any Contract relating to the acquisition or disposition of any material business (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which Seller has any liability a Selling Entity or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days Buyer would have continuing obligations applicable to the Business or less prior written notice without material liability, penalty or premiumthe Assets following the date of this Agreement;
(ev) Contracts under which any Contract where the amount payable by Seller is dependent on the revenueBusiness is, income and Buyer would be required to become, obligor or other similar measure of Seller or guarantor relating to indebtedness, except for any other PersonRelated Party Agreements;
(fvi) distributionany Contract containing covenants expressly limiting, marketingindividually or in the aggregate, reseller, partner, sales, agency, independent sales agency and referral contractsin any material respect the freedom of the Business or Assets to compete with any Person in a product or line of business or operate in any jurisdiction;
(gvii) Contractsany Contract that contains exclusivity, instruments and arrangements relating to any Indebtedness requirements or similar provisions binding on the Business or the guarantee thereofAssets;
(hviii) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or Contract containing “most favored nation” provisionsprovisions applicable to the Business or the Assets;
(jix) Contracts each Collective Bargaining Agreement and each other Contract with any labor organization;
(x) any Contract pursuant to which any of Seller or its Subsidiaries
(A) licenses or is otherwise permitted by a Third Party to use any Intellectual Property material to the Business (other arrangements which require the Seller to deliver services on a than any “fixed feeshrink wrap,” “commercially available software package” or “not to exceedclick through” basis;license that is generally available on and actually licensed under standard terms) or
(kB) employmentlicenses any material Owned Intellectual Property to a Third Party (in each case (A) and (B), severanceother than non-exclusive licenses contained in private label contracts or orders, consultingnon-disclosure agreements, deferred compensation and similar distribution agreements;, customer agreements, contract manufacturing agreements, material sponsorship agreements, advertising agency agreements, or insertion orders, in each case entered into in the ordinary course of business); or
(lxi) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;any Related Party Agreement.
(mb) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valida legal, valid and binding and in full force and effect and enforceable obligation of the Selling Entity party thereto and, to the Knowledge of such Selling Entity, the other parties thereto in accordance with its termsterms and conditions, and is enforceable against such Selling Entity except as such legality, validity and enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, (ii) equitable principles of general applicability (whether considered in a proceeding at law or in equity), and (iii) the obligation to pay Cure Costs. There is Except as caused solely by the commencement of the Bankruptcy Cases, to the Knowledge of each Selling Entity, no event or condition which has occurred or exists which constitutes not occurred and no circumstance or condition exists, as a result of the action or inaction of any Selling Entity or the action or inaction of any Third Party which, with or without notice, the happening of any event and/or the passage of timetime or the giving of notice, could or both, will, or would reasonably be expected to, (A) constitute a material default under or breach under a material violation of any such Material Contract by Seller orContract, to the knowledge of the Seller, any other party thereto, or could (B) cause the acceleration of any obligation or loss of any rights Selling Entity or, to the Knowledge of each Selling Entity, any other party thereto or the creation of an Encumbrance upon any Asset or (C) give rise any Person the right to any right of termination cancel, terminate or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of modify any Material Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement
Material Contracts. Schedule 2.9 (a) Section 4.13(a) of the Parent Disclosure Schedule Letter sets forth a complete and accurate list, in list of each case whether written or unwritten, of all of the following ContractsContracts to which, agreements and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 as of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilitydate of this Agreement, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller Parent or any other Person;
of its Subsidiaries is a party (f) distributioneach, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;a “Parent Material Contract”):
(i) Contracts or other arrangements which place any limitation on the method “material contract” (as such term is defined in Item 601(b)(10) of conducting or scope Regulation S-K of the Business includingSEC as determined as of the date of this Agreement, without limitationother than those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to Parent;
(ii) any Contract with any director, officer or shareholder of Parent or any agreement of its Subsidiaries that is required to be described under Item 404 of Regulation S-K of the SEC in the Parent SEC Reports;
(iii) each Contract (A) not to (or otherwise restricting or limiting the ability of Parent or any of its Subsidiaries to) compete in any line of business or geographic area, (B) to restrict the ability of Parent or any of its Subsidiaries to conduct business in any geographic area, or (C) that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or a “most favored nation” provisionsprovision or that otherwise requires Parent or any of its Subsidiaries to conduct business with any Person on a preferential or exclusive basis, or that includes a price protection or rebate provision in favor of the counterparty to such Contract or any similar provision;
(jiv) Contracts each Contract (other than any Parent Benefit Plan and ordinary course non-executive officer employment agreement) providing for or other arrangements which require resulting in payments after the Seller to deliver services on a “fixed fee” date of this Agreement by Parent or “not to exceed” basisany of its Subsidiaries that exceeds $50,000;
(kv) employmentall Contracts granting to any Person an option or a first refusal, severance, consulting, deferred compensation and first offer or similar agreementspreferential right to purchase or acquire any material Parent Assets;
(lvi) all material Contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment;
(vii) all partnership, joint venture or other similar Contracts;
(viii) each (A) loan or credit agreement, indenture, mortgage, note or other Contract evidencing indebtedness for borrowed money of Parent or any of its Subsidiaries from a Third Party lender, (B) Contract pursuant to which any such indebtedness for borrowed money is guaranteed by Parent or any of its Subsidiaries, and (C) Contract relating to the creation of a Lien (other than Permitted Liens) with respect to mergers any material Parent Asset;
(ix) each Contract that obligates Parent or acquisitionsany of its Subsidiaries to make any loans, sales of securities advances or material assetscapital contributions to, or investments by Sellerin, any Person (other than Parent or any of its Subsidiaries), except for (A) loans or advances for indemnification, attorneys’ fees, or travel and other business expenses in the ordinary course of business, and (B) extended payment terms for customers in the ordinary course of business;
(mx) Contracts any Contract for the disposition or acquisition by Parent or any of its Subsidiaries, with Governmental Entities, including but not limited material obligations of Parent or any of its Subsidiaries (other than confidentiality obligations) remaining to be performed or material Liabilities of Parent or any franchise agreement, license agreement, or right of way use agreementits Subsidiaries continuing after the date of this Agreement;
(nxi) strategic allianceeach Contract with a (A) Top Customer, co-marketingand (B) Top Supplier (in each case, joint development or similar agreementsother than purchase orders entered into in the ordinary course of business);
(oxii) all collective bargaining agreements any agreement restricting or Contracts with any unionlimiting 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;
(pxiii) powers each collective bargaining or other labor or works council agreement covering employees of attorneyParent or any of its Subsidiaries;
(qxiv) agreementseach lease, Contracts, instruments, commitments, plans sublease or other arrangements license involving real property or equipment pursuant to which Parent or any of Seller outside its Subsidiaries is required to pay an annual base rental in excess of the Ordinary Course of Business$50,000;
(rxv) agreementsrelates to the settlement (or proposed settlement) of any pending or threatened Legal Actions, licenses, permits, registrations, other than any settlement that provides solely for the payment of less than $50,000 in cash (net of any amount covered by insurance or other approvals with indemnification that is reasonably expected to be received by Parent or any Governmental Entityof its Subsidiaries);
(sxvi) each Contract (A) granting to Parent or any agreements with of its Subsidiaries a material license, covenant not to sue or other right under any Governmental Entity Intellectual Property (excluding Contracts for Software or information technology services that are generally commercially available on non-governmental entity that owns discriminatory pricing terms), (B) granting to any third Person a license, covenant not to sue or controls other right under any utility polesParent Intellectual Property (other than non-exclusive licenses granted to customers, conduitsvendors or service providers in the ordinary course of business in connection with the sale, distribution or use of products, goods or services, including licenses that, to Parent’s Knowledge, are merely implied or incidental to such sale, distribution or use), (C) materially restricting Parent’s or any of its Subsidiaries’ use or exploitation of any material Parent Intellectual Property, or rights-of-way (D) governing Seller’s attachment the development or installation ownership of fiber optic lines, coaxial cables, Intellectual Property material to the businesses of Parent or any of its Subsidiaries (other Seller owned than Contracts with employees, contractors or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”consultants entered into in the ordinary course of business); and
(txvii) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed set forth in Section 4.13(a) of the Parent Disclosure Letter pursuant to the items set forth above. All the foregoing (whether written or unwrittenanother subsection of this Section 4.13(a), all material agreements with any Governmental Authority.
(b) A true and complete copy of each Parent Material Contract (including all any amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished ) entered into prior to the Purchaser true, complete, and correct copies date of all Material Contractsthis Agreement has been made available to the Company. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Parent Material Contract is valida valid and binding agreement of Parent or its applicable Subsidiary, except where the failure to be valid and binding and would not, individually or in full force and effect and enforceable the aggregate, reasonably be expected to have a Parent Material Adverse Effect. Except as would not, individually or in accordance with its terms. There is no event the aggregate, reasonably be expected to have a Parent Material Adverse Effect, (i) neither Parent or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orSubsidiary nor, to the knowledge Knowledge of the SellerParent, any other party thereto, is in breach of or could cause default under any such Parent Material Contract, (ii) as of the acceleration date of any obligation or loss of any rights of any party thereto or give rise this Agreement, there are no material disputes with respect to any right of termination or cancellation thereof. To the knowledge such Parent Material Contract, and (iii) as of the Seller, none date of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Sellerthis Agreement, no party to a under any Parent Material Contract intends has given written notice of its intent to terminate, accelerate, cancel terminate or materially change the terms of any otherwise seek a material amendment to such Parent Material Contract.
Appears in 1 contract
Material Contracts. Schedule 2.9 of the Disclosure Schedule sets forth a complete (a) The following contracts and accurate list, in each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the SellerBusiness shall constitute “Material Contracts” for the purposes of this Agreement:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts any contract or other arrangements which place agreement with any limitation on Material Customer or any Material Supplier, including purchase orders or service level agreements open as of the method of conducting Agreement Date;
(ii) any contract or scope agreement (A) that restricts the ability of the Business includingto compete in any line of business or with any Person or in any geographic area during any period of time, without limitation(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 agreement Person, or (D) that contains any exclusivity, standstill or material non-competition, non-solicitation, no-hire, solicitation obligations in favor of any Person;
(iii) any contract or agreement that contains an option or grants to any Person any right of first refusal, right of first negotiation, right of first offer, or “most favored nation” provisionsother similar right in favor of any person with respect to any portion of the Business or the Transferred Assets;
(jiv) Contracts or other arrangements any contract in which require any of the Seller Parties have (A) granted development rights, or marketing or distribution rights relating to deliver services on any Product or Product Candidate or (B) agreed to purchase a minimum quantity of goods in a material amount, or include a “fixed feetake-or-pay” provision involving a material amount, relating to any Product or “not Product Candidate or has agreed to exceed” basispurchase Inventories relating to any Product or Product Candidate exclusively from a certain party;
(kv) any 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 Parties or the Transferred Entities will have any payment obligation that would 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, consultingretention, deferred compensation 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 similar agreementsany contract or agreement with any Business Contractor that involves annual aggregate payments to or from the Seller Parties of at least $50,000;
(lx) Contracts with respect any contract or agreement pursuant to mergers which any Seller Party (A) has been granted an inbound license, sublicense, covenant not to sue or acquisitionsother right, sales of securities option or material assets, interest in or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreementIntellectual Property, license agreementTechnology, Software or right Data (other than licenses of way use agreement;
(ngenerally commercially available Intellectual Property, Technology, Software or Data) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are is material to the Business, the Acquired Assetsany 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 Sellerordinary course of business consistent with past practice) that is material to the Business, any Product or Product Candidate;
(xi) any contract or agreement for the development of any Intellectual Property Used in and necessary for the operation of the Business (other than confidentiality, inventor assignment and other Intellectual Property assignment agreements with employees, consultants, subcontractors, and independent contractors entered into in the ordinary course of 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, cannot be terminated without penalty by Seller or the applicable Transferred Entity upon less than 60 days’ notice;
(xiii) any Transferred Real Property Lease;
(xiv) any contract or agreement which impose a Lien, other than a Permitted Lien, on any of the Transferred Assets;
(xv) any contract or agreement containing any provision requiring any of the 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 of business consistent with past practice);
(xvi) any contract with any Government Authority;
(xvii) any contract or agreement relating to capital expenditures under which a reasonable purchaser would consider important in deciding there are outstanding payment obligations of the Seller Parties (whether or not contingent) that would reasonably be expected to acquire the Acquired Assets result in payments in excess of $250,000; and
(xviii) any other contract or agreement that, if terminated prior to the extent not already listed and disclosed pursuant Closing, would reasonably be expected to be material to the items set Business.
(b) Section 4.11(a) of the Seller Disclosure Schedules sets forth above. All an accurate, correct and complete list of each Material Contract in effect as of the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC LicensesAgreement Date, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished made available to the Purchaser trueBuyer accurate, completecorrect and complete copies of, and correct copies of all each Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Contract.
(i) Each Material Contract is valida 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 in full force and effect 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. There is no event or condition which has occurred or exists which constitutes or which, with or without noticesubject, in each case, to the happening Bankruptcy and Equity Exception, (ii) none of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller Parties or, to the knowledge Knowledge of the Seller, any other party theretoto a Material Contract is in material default under or breach of a Material Contract, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, (iii) none of the parties to Seller Parties has received any written notice of breach of a Material Contract have informed Contract, and (iv) each Seller that it will not fulfill its obligations thereunder Party has performed in all material respects. There are no pending renegotiations of any respects all obligations required to be performed by it under the Material Contract and Contracts to which it is a party and, to the knowledge Knowledge of the Seller, no each other party to a Material Contract intends has performed in all material respects all obligations required to terminate, accelerate, cancel or materially change the terms of any Material Contractbe performed by it.
Appears in 1 contract
Sources: Asset Purchase Agreement (Elanco Animal Health Inc)
Material Contracts. Except as listed or described on Schedule 2.9 3.8 (such contracts, or those which should have been listed on Schedule 3.8, are the "Material Contracts"), as of or on the date hereof, Seller is not a party to or bound by any written or oral leases, agreements or other contracts or legally binding contractual rights or contractual obligations or contractual commitments relating to or in any way affecting the operation or ownership of the Disclosure Schedule sets forth Business that are of a complete and accurate list, in each case whether written or unwritten, of all of the following type described below ("Contracts, agreements and arrangements with respect to the Seller:"):
(a) Contracts any collective bargaining arrangement with respect to which Seller has any liability labor union and any such agreements currently in negotiation or obligation involving more than $15,000.00, contingent or otherwiseproposed;
(b) Contracts with respect to which Seller expects to receive paymentsany Contract for the purchase, maintenance or acquisition, or incur costs the sale or furnishing, of materials, supplies, merchandise, machinery, equipment, parts or other property or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for any Contract granting any person a term lien on any of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required Assets to be disclosed on Schedule 2.9 of the Disclosure ScheduleAcquired, in whole or in part;
(d) all agreements any Contract for the cleanup, abatement or other actions in connection with Suppliers Hazardous Materials (as defined below), the remediation of any existing environmental liabilities or relating to the performance of any environment audit or study;
(e) any Contract granting to any person a first-refusal, first-offer or similar preferential right to purchase or acquire any of the Assets to be Acquired;
(f) any Contract with respect to any manufacturer's representative or other sales agent, distributor or representative, or advertising or marketing entity having a remaining term in excess of thirty days and which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller without penalty on thirty (30) days calendar days' or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contractsnotice;
(g) Contractsany Contract under which Seller is (i) a lessee or sublessee of any machinery, instruments and arrangements relating to equipment, vehicle or other tangible personal property or real property, or (ii) a lessor of any Indebtedness real property or the guarantee thereoftangible personal property owned by Seller;
(h) Contracts and other arrangements of any Contract under which Seller with any officerhas granted or received a license or sublicense or under which it is obligated to pay or has the right to receive a royalty, director, manager, stockholder, equity holder, license fee or Affiliate of Sellersimilar payment;
(i) Contracts or other arrangements which place any limitation on the method of Contract prohibiting Seller from conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, anywhere in the United States or “most favored nation” provisionselsewhere in the world;
(j) Contracts any joint venture or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basispartnership Contract;
(k) employment, severance, consulting, deferred compensation and similar agreements;any employment or consulting Contract; and
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the BusinessContract, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire made in the Acquired Assets to the extent not already listed ordinary course of business, which involves total payments m excess of $5,000. Seller has provided Buyer with a true and disclosed pursuant to the items set forth above. All the foregoing (whether complete copy of each written or unwritten)Material Contract, including all amendments or other modifications theretothereto and a written summary of each oral Material Contract. Except as set forth on Schedule 3.8, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each each Material Contract is valida valid and binding obligation of Seller, binding and in full force and effect and enforceable in accordance with its terms, and is in full force and effect. There is no event or condition which Except as set forth on Schedule 3.8, Seller has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach performed all obligations required to be performed by it under any such each Material Contract by and neither Seller ornor, to the knowledge of the Seller, any other party theretoto any Contract, is (with or without the lapse of time or the giving of notice, or could cause the acceleration of both) in breach or default in any obligation or loss of any rights of any party thereto or give rise material respect thereunder and there exists no condition which, to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties would constitute a breach or default thereunder. Seller has not been notified that any party to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to cancel, terminate, accelerate, cancel not renew or materially change the terms of exercise an option under any Material Contract, whether in connection with the transactions contemplated hereby or otherwise.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aquis Communications Group Inc)
Material Contracts. Schedule 2.9 (a) Section 2.10(a) of the Disclosure Schedule sets forth a complete and accurate list, in identifies each case whether written or unwritten, of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) Company Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 effect as of the Disclosure Schedule;
date of this Agreement (d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liabilityeach, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;a “Material Contract”):
(i) Contracts any Contract to which the Company is a party or other arrangements material Contract to which place any limitation other Acquired Company (excluding GAC) is a party: (A) relating to or involving the employment of, or the performance of services by, any Company Associate (other than offer letters with employees providing for “at will” employment terminable on 10 days’ notice or less in the form used by the Company in the ordinary course of business); (B) pursuant to which any of the Acquired Companies is or may become obligated to make or provide any severance, termination, change in control or similar payment or benefit to any Company Associate; or (C) pursuant to which any of the Acquired Companies is or may become obligated to make any bonus or similar payment (other than payments constituting base salary) in excess of $25,000 to any Company Associate;
(ii) any Company Employee Plan, including any stock option plan, stock appreciation right plan or stock purchase plan, whose terms provide that any of the benefits provided for thereunder will be triggered or materially increased, or the vesting of any of the benefits provided for thereunder will be accelerated, by the consummation of any of the Contemplated Transactions or the value of any of the benefits of which will be calculated on the method basis of conducting or scope any of the Business includingContemplated Transactions (either alone or in connection with a previous or subsequent termination of employment or service in combination therewith);
(iii) any collective bargaining, without limitationunion or works council agreement;
(iv) any Contract relating to the acquisition, development, sale or disposition of any agreement (A) business unit or (B) product line, in each case, that is material to the Acquired Companies, taken as whole, and entered into since January 1, 2017 or pursuant to which the Company has any material ongoing obligations;
(vi) any Contract: (A) involving a material joint venture, strategic alliance, partnership or sharing of profits or revenue or similar agreement; or (B) for any capital expenditure in excess of $200,000;
(vii) any Contract relating to the development (including joint development) or joint ownership of any material Intellectual Property Rights (other than employee agreements entered into in the ordinary course of business);
(viii) any Contract entered into since January 1, 2017: (A) relating to the disposition or acquisition by any Acquired Company of any assets or any business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) for consideration in excess of $350,000 individually or $700,000 in the aggregate for all such Contracts; or (B) pursuant to which any Acquired Company will acquire any interest, or will make an investment for consideration in excess of $350,000 in any other Person, other than another Acquired Company;
(ix) any Contract that materially limits or otherwise materially restricts the right or ability of any Acquired Company: (A) to compete or provide services in any line of business or in any geographic area; (B) to acquire any product or other asset or any service from any other Person that is material to the operation of the business of any Acquired Company, sell any material product or other material asset to or perform any service for any other Person, or transact material business with any other Person; or (C) to develop, sell, supply, license, distribute, offer, support or service any material product or any material Intellectual Property Rights or other material asset to or for any other Person.
(x) any Contract that: (A) grants exclusive rights to market, sell or deliver any material product or material service of any Acquired Company; (B) contains any exclusivity“most favored nation” or similar provision in favor of the counterparty, non-competitionother than any such Contract that (1) may be cancelled by any Acquired Company without material liability to such Acquired Company upon notice of 60 days or less, non-solicitationor (2) is not material to the Acquired Companies, no-hire, taken as a whole; or (C) contains a right of first refusal, first offer or “most favored nation” provisionsfirst negotiation or any similar right with respect to any asset owned by an Acquired Company that is material to the Acquired Companies, taken as a whole;
(jxi) Contracts any mortgage, indenture, guarantee, loan, credit agreement, security agreement or other arrangements which require Contract relating to the Seller borrowing of money or extension of credit, in each case, in excess of $500,000, other than: (A) accounts receivable and accounts payable; (B) loans to deliver services on a “fixed fee” or “not guarantees of obligations of direct or indirect wholly owned Subsidiaries of the Company; and (C) extensions of credit to exceed” basiscustomers, in each case, arising or provided in the ordinary course of business consistent with past practice;
(kxii) employmentany Contract with a Major Client located in the United States or a Major Supplier that has obligations that are or will be required to be performed and that have not been fully performed, severance, consulting, deferred compensation other than (1) purchase orders for the sale or purchase of products or services in the ordinary course of business under which the Acquired Companies have made or received payments of less than $500,000 in aggregate and similar agreements(2) any such Contract that may be cancelled by any Acquired Company without material liability to such Acquired Company upon notice of 60 days or less;
(lxiii) Contracts the material Leases;
(xiv) any settlement, conciliation or similar Contract that materially restricts or imposes any material outstanding obligation on the Acquired Companies, including any coexistence or consent agreements related to material Company IP;
(xv) any Current Government Contract;
(xvi) any Contract (other than a Contract evidencing any Company Equity Award the form of which has been Made Available to Parent): (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any security or (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to mergers any security; or acquisitions, sales of securities or material assets, or investments by Seller;
(mC) Contracts with Governmental Entities, including but not limited to containing any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development first refusal or similar agreements;
(o) all collective bargaining agreements right pursuant to which any Acquired Company could be obligated to repurchase or Contracts with redeem, any union;
(p) powers material equity interests of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)Person; and
(txvii) other agreements any agreement containing any material “earn-out”, contingent or Contracts which are material to deferred purchase price payable by the BusinessAcquired Companies, except as entered into in the ordinary course of business consistent with past practice.
(b) Except as set forth in Section 2.10(b) of the Disclosure Schedule, the Acquired Assets, Company has Made Available to Parent an accurate and complete copy (or a draft or unsigned form that does not vary in any material respect from the Seller, or which a reasonable purchaser would consider important complete and final version) of each Material Contract (other than those Contracts (i) described in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwrittenSection 2.10(a)(i), including all amendments (ii) with Major Suppliers and purchase orders with Major Clients described in each case in Section 2.10(a)(xii) or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts(iii) described in Section 2.10(a)(xv)). Each Material Company Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each that constitutes a Material Contract is valid, binding valid and in full force and effect effect, and is enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, terms against the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orCompany and, to the knowledge Knowledge of the SellerCompany, any each other party thereto, subject to the Enforceability Exceptions, except for such failures to be valid and binding or could cause to be in full force and effect that are not and would not be, individually or in the acceleration of any obligation or loss of any rights of any party thereto or give rise aggregate with other such failures, material to any right of termination or cancellation thereof. To the knowledge business of the SellerAcquired Companies, taken as a whole. None of the Acquired Companies, and, to the Knowledge of the Company, no other Person, has violated or breached, or committed any default under, any Company Contract that constitutes a Material Contract, except for such violations, breaches or defaults that, individually or in the aggregate with other such violations, breaches or defaults, are not and would not be material to the business of the Acquired Companies, taken as a whole. Since the Balance Sheet Date, to the Knowledge of the Company, none of the parties to Acquired Companies has received any written notice regarding any actual violation or breach of, or default under, any Material Contract have informed Seller that it will has not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contractsince been fully cured.
Appears in 1 contract
Material Contracts. Schedule 2.9 of the Disclosure Schedule (a) SCHEDULE 4.12(a) sets forth a complete and accurate list, in each case whether written or unwritten, list of all existing Contracts that are material to the Company or the Business (collectively with the Employment Agreements, the "SCHEDULED CONTRACTS"), including without limitation, the following:
(i) each agreement or arrangement of the following Company that requires or permits the other party thereto to require the payment or incurrence of Liabilities by the Company subsequent to the date of this Agreement of more than Twenty-Five Thousand Dollars ($25,000);
(ii) all Contracts relating to, or evidences of, or guarantees of, or providing security for, Debt or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset);
(iii) all license, sale, distribution, sales representative, commission, marketing, agent, franchise, technical assistance or similar agreements relating to or providing for the marketing and/or sale of products or services to which the Company is a party or by which it is otherwise bound;
(iv) all agreements relating to an acquisition of a business or a product line or a disposition of a business or a product line and all partnership, joint venture, teaming arrangements or other similar Contracts, arrangements or agreements and arrangements entered into by the Company since January 1, 1996 or currently in effect;
(v) each agreement, arrangement, contract, commitment or obligation of the Company restricting or otherwise affecting the ability of the Company to compete in the Business or otherwise in any jurisdiction;
(vi) all license or other agreements relating to the use of Intellectual Property Rights, except any of the foregoing related to the use of generally available computer software;
(vii) forms of all warranty agreements, product guarantees or indemnity agreements currently in effect with respect to any of the Seller:services heretofore rendered or products heretofore sold by the Company;
(aviii) Contracts all contracts or agreements in effect on the date hereof with any customer of the Company or with its Affiliates, with respect to which Seller has any liability or obligation involving more than which, on a combined basis, to the Knowledge of the Company as of the date hereof, there is a reasonable probability of a loss at the gross margin level of Twenty-Five Thousand Dollars ($15,000.00, contingent or otherwise25,000);
(bix) Contracts written contracts and other written agreements with respect to which Seller expects to receive paymentsany current or former officer, director, employee, consultant, agent or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for other representative having a remaining term of more than one year after six (6) months from the Closing date hereof or providing for an obligation to pay and/or accrue compensation of Twenty-Five Thousand Dollars ($25,000) or more per annum, or providing for the payment of fees or other than any vendor agreement entered into the Ordinary Course consideration in excess of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure ScheduleTwenty-Five Thousand Dollars ($25,000);
(dx) all contracts and other agreements with Suppliers with respect to any labor union or association representing any employee;
(xi) contracts and other agreements for the purchase or sale of inventory, equipment or services that contain an escalation, renegotiation or redetermination clause or which Seller has any liability cannot be canceled without liability, premium or obligation involving more than $15,000.00 and that penalty if written notice is not terminable by Seller on given thirty (30) days or less prior written notice without material liability, penalty or premiumto the effective date of the notice;
(exii) Contracts under which contracts and other agreements for the amount payable by Seller is dependent on sale of any of its assets or properties other than in the revenueordinary course of business and for a sale price exceeding Ten Thousand Dollars ($10,000) in any one case (or Fifty Thousand Dollars ($50,000) in the aggregate, income in the case of any series of related contracts or other similar measure agreements) or for the grant to any person of Seller any preferential rights to purchase any of its or any other Persontheir assets or properties;
(fxiii) distributionperformance bonds, marketingcompletion bonds, resellerbid bonds, partner, sales, agency, independent sales agency suretyship agreements and referral contracts;
(g) Contracts, similar instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(txiv) all other agreements existing contracts or Contracts agreements, not otherwise covered by clauses (i) through (xiii), which are individually could reasonably be expected to be material to the Business, the Acquired Assets, Business or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire Company.
(b) The Company and the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, Shareholders have made true and correct copies of all Material ContractsScheduled Contracts available to Parent and Acquisition Sub. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Except as disclosed in SCHEDULE 4.12(b), each Scheduled Contract is valida legal, valid and binding and in full force and effect and obligation of the Company and, to the best Knowledge of the Company, each other party thereto, enforceable against each such party thereto in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, and neither the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller orCompany nor, to the knowledge Knowledge of the SellerCompany, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereofis in material default thereunder. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in SCHEDULE 4.12(b) sets forth all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractRequired Contractual Consents.
Appears in 1 contract
Sources: Merger Agreement (Magnetek Inc)
Material Contracts. Schedule 2.9 (a) Section 2.14(a) of the Seller Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all list of the following Contracts (each, a “Material Contract” and collectively, the “Material Contracts, agreements and arrangements with respect to the Seller:”):
(ai) Contracts with respect any Assumed Contract that purports to which Seller has any liability limit, curtail or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after restrict the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure ability of Seller or any other Person;
(f) distributionSeller Subsidiary to compete in any geographic area or line of business, marketing, reseller, partner, sales, agency, independent make sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness Person in any manner, use or the guarantee thereof;
(h) Contracts and other arrangements of Seller with enforce any officer, director, manager, stockholder, equity holderStorm IP or hire or solicit any Person in any manner, or Affiliate of Seller;
(i) Contracts that grants the other party or other arrangements which place any limitation on the method of conducting third Person “most favored nation” or scope of the Business including, without limitationsimilar status, any agreement that contains type of special discount rights, or any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, first notice or “most favored nation” provisionsfirst negotiation;
(jii) Contracts or other arrangements which require any Assumed Contract that contains a provision requiring the Seller consent of any Person to deliver services on a “fixed fee” or “not to exceed” basisthe assignment of such Contract;
(kiii) employment, severance, consulting, deferred compensation and similar agreementsany Assumed Contract obligating Seller or any Seller Subsidiary to indemnify or hold harmless any Person;
(liv) Contracts with respect any Contract containing confidentiality clauses and under which Storm IP or Trade Secrets material to mergers the conduct of the Business is or acquisitions, sales are disclosed to any Person on terms that materially deviate from Seller’s standard form of securities or material assets, or investments by Sellernon-disclosure agreement (a copy of which has been made available to Purchaser);
(mv) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreementSeller License Agreement and any other Contract relating in whole or in part to, or right that includes, any sale, assignment, hypothecation, transfer, license, option, immunity, or other grant of way use agreementrights under or with respect to, or covenant not to bring claims for infringement, misappropriation, or other violation of, any Storm IP;
(nvi) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts any Assumed Contract with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements Related Party of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”)of its Subsidiaries; and
(tvii) each other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing Assumed Contract.
(whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The b) Seller has furnished to the Purchaser true, complete, made available complete and correct copies of the Material Contracts to Purchaser in its possession or control, including all Material Contracts. Each Material Contract sets forth the entire agreement modifications, amendments and understanding between the Seller and the other parties supplements thereto. Each of the Material Contract is validContracts constitutes the valid and legally binding obligation of Seller or Seller Subsidiary, binding and in full force and effect and as applicable, and, to the Knowledge of Seller, each other party thereto, enforceable in accordance with its termsterms (subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights generally or to general principles of equity), and is in full force and effect. There To the Knowledge of Seller, there is no event material breach or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract either by Seller or any Seller Subsidiary or, to the knowledge Knowledge of the Seller, by any other party thereto, no event has occurred that with the giving of notice, the lapse of time, or could cause both would constitute a material breach or default thereunder by Seller or any Seller Subsidiary or, to the acceleration Knowledge of Seller, any other party, and neither Seller nor any Seller Subsidiary has received any claim of any obligation such material breach or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of the Seller, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contractdefault.
Appears in 1 contract
Material Contracts. Schedule 2.9 (a) Section 3.19(a) of the Disclosure Schedule Schedules sets forth a true, accurate and complete and accurate listlist of Contracts to which any TFX Entity (in each case, solely with respect to the Business) or any Transferred Subsidiary is a party to or bound by, in each case whether written excluding any Employee Plan, Overhead or unwritten, of all of the following Contracts, agreements Shared Services and arrangements with respect to the Seller:
(a) Contracts with respect to which Seller has any liability purchase order or obligation involving more than $15,000.00, contingent or otherwise;
(b) Contracts with respect to which Seller expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve-month period;
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement analogous instrument entered into with customers or suppliers in the Ordinary Course of Business that are not otherwise (the Contracts required to be disclosed set forth on Schedule 2.9 Section 3.19 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability Schedules, whether or obligation involving more than $15,000.00 and that is not terminable by Seller listed on thirty (30) days or less prior written notice without material liabilitySection 3.19 of the Disclosure Schedules, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) “Material Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;”):
(i) Contracts any Contract evidencing Indebtedness for borrowed money, or any note, bond, indenture, mortgage or other arrangements which place evidence of Indebtedness, or any limitation on guarantee thereof, in an aggregate principal amount in excess of $4,000,000 owing by any Transferred Subsidiary to any Person, other than any such Contract evidencing Indebtedness related to overdraft protections incurred in the method Ordinary Course of conducting Business or scope extensions of credit related thereto;
(ii) any Contract with any Governmental Entity requiring annual payments to such Governmental Entity in excess of $250,000;
(iii) any Contract governing any joint venture, strategic alliance, partnership, the Business includingsharing of profits or similar arrangement;
(iv) any Contract that (A) limits the ability of any TFX Entity (in each case, without limitationsolely with respect to the Business) or any Transferred Subsidiary (1) to compete in any line of business or with any Person or in any geographic area, any agreement that contains including non-solicitation and non-competition agreement, (2) to conduct their business (including any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation,” fixed pricing, preferred provider, or similar provisions) or (B) (1) grants a right of first refusal or first offer to any client, customer, vendor, supplier, distributor or contractor, (2) includes minimum purchase conditions or other requirements, (3) contains a “most-favored-nation”, “best-pricing” or similar provision; or (4) contains any provision that requires the purchase of all or a material portion of such TFX Entity (in each case, solely with respect to the Business) or any Transferred Subsidiary requirements for a given product or service from a given third party;
(jv) Contracts any Contract with obligations remaining to be performed or other arrangements which require liabilities continuing after the Seller date hereof, that provides for payment or receipt by any TFX Entity (in each case, solely with respect to deliver services on a “fixed fee” the Business) or “not to exceed” basisany Transferred Subsidiary of more than $2,000,000 per year;
(kvi) employmentany Contract involving the settlement or compromise of any Action, severanceincluding settlement agreements, consultingcoexistence agreements and consent agreements with any Governmental Entity, deferred compensation and similar agreementsthat contains any material outstanding monetary obligations, individually or in the aggregate, on any TFX Entity (in each case, solely with respect to the Business) or any Transferred Subsidiary involving (A) payments in excess of $2,000,000 or (B) any material ongoing requirements related to or restrictions on the Business;
(lvii) Contracts any Contract with any Material Customer;
(viii) any Contract with any Material Supplier;
(ix) any Collective Bargaining Agreement;
(x) any Lease, Contract or other arrangement for the lease of any Leased Real Property;
(xi) any acquisition, disposition, merger or similar agreement or Contract (whether involving the acquisition, disposition or combination of any business, assets of any Person, equity interests of any business or entity by any TFX Entity (in each case, solely with respect to mergers the Business) or acquisitions, sales any Transferred Subsidiary) which (A) has been entered into since 2020 and involves the acquisition of securities any Person or material assetsany assets of a Person in excess of $5,000,000, or investments by Seller;
(mB) Contracts contain representations, warranties, covenants, indemnities or other obligations of any TFX Entity (in each case, solely with Governmental Entitiesrespect to the Business) or any Transferred Subsidiary that are still in effect, including but not limited to any franchise agreementoutstanding “earn-outs”, license agreementholdbacks, contingent or deferred purchase price payments, or right of way use agreement;
similar contingent payment obligations (n) strategic alliancein each case, co-marketing, joint development excluding any assets or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of inventories acquired in the Ordinary Course of Business);
(rxii) agreementsany Contract that grants a third Person any right to buy any material portion of the assets, licensesequity interests or business of any TFX Entity (in each case, permitssolely with respect to the Business) or any Transferred Subsidiary or any right of first refusal or right of first offer or that otherwise purports to limit the ability of any TFX Entity (in each case, registrationssolely with respect to the Business) or any Transferred Subsidiary to own, sell, transfer, pledge or other approvals with otherwise dispose of any Governmental Entitymaterial portion of the assets, equity interests or business of such TFX Entity or Transferred Subsidiary;
(sxiii) any agreements Contract under which any TFX Entity (in each case, solely with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material respect to the Business, ) or any Transferred Subsidiary has permitted any material assets or property to become encumbered by an Encumbrance (other than a Permitted Encumbrance);
(xiv) any Contract that provides for the Acquired Assetsindemnification by, or the Sellerassumption or guarantee by, any TFX Entity (in each case, solely with respect to any of the Business) or any Transferred Subsidiary of any material liability of any Person under which such TFX Entity or Transferred Subsidiary would reasonably be expected to incur costs that exceed $250,000 and not covered by insurance;
(xv) any Contract (A) pursuant to which any Transferred Subsidiary or any TFX Entity (solely with respect to any of the Business) grants or receives, any right to use, exercise or practice any right to Intellectual Property (other than non-exclusive licenses entered into with customers and service providers in the Ordinary Course of Business and non-exclusive licenses for commercially available software with a replacement value of less than $250,000), (B) relating to the acquisition, divestiture, or which a reasonable purchaser would consider important in deciding whether development of material Intellectual Property (other than Contracts entered into with employees, contractors or not to acquire the Acquired Assets to the extent not already listed and disclosed consultants pursuant to Seller’s or its Affiliates’ form assignment agreement), or (C) that constitutes a concurrent use agreement, settlement agreement, or coexistence agreement with respect to any Company Intellectual Property;
(xvi) any Contract for the items set forth above. All advancement or loans to any other Person in excess of $25,000;
(xvii) any contract involving both the Business and the OEM Business; or
(xviii) any Contract, written or other binding commitment, to enter into any agreement or Contract of the type described in the foregoing subsections (whether written i) through (xvii).
(b) Except as, individually or unwritten)in the aggregate, including all amendments or modifications theretowould not reasonably be expected to have a Material Adverse Effect, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each (i) each Material Contract is validvalid and binding on the TFX Entity or Transferred Subsidiary party thereto and, binding to the Knowledge of the Seller, each other party thereto, and is in full force and effect and enforceable against the TFX Entity or Transferred Subsidiary party thereto and, to the Knowledge of the Seller, against each other party thereto in accordance with its terms. There terms (except to the extent that enforceability may be limited by the applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity); and (ii) there is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller any TFX Entity or any Transferred Subsidiary party thereto, and no event has occurred within the last twelve (12) months that with notice or lapse of time or both would constitute such a breach or default thereunder by any TFX Entity or Transferred Subsidiary party thereto, or, to the knowledge Knowledge of the Seller, any other party thereto, or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge As of the Sellerdate hereof, none of the parties Seller has not received any written notice from any counterparty to any Material Contract have informed Seller that it will not fulfill such counterparty intends to terminate or materially reduce its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and relationship and, to the knowledge Knowledge of the Seller, no party such termination or material reduction has been threatened. The Seller has made available to a the Buyer true and complete copies of all Material Contract intends to terminateContracts, accelerate, cancel or materially change the terms of any Material Contractincluding all amendments thereto.
Appears in 1 contract
Material Contracts. (a) Except for the Contracts disclosed in applicable subsection of Section 5.12(a) or 5.12(b) of the Disclosure Schedule, with respect to the Business, none of the Selling Group is a party to or subject to and the Purchased Assets (including the Transferred Companies, Purchased Equity and Concurrent HPS Equity) are not otherwise subject to any:
(i) lease for real or personal property;
(ii) Contract for the purchase of materials, supplies, goods, services, equipment or other assets with a Major Supplier;
(iii) Contract with a customer of the Business from whom the Business has derived revenue during the 12-month period ended December 31, 2016 or from whom the Business expects to derive revenue during the 12-month period ending December 31, 2017, in each case that (i) relates to the licensing, maintenance, support or enhancement of any Product; (ii) is subscription-based or provides for recurring subscription fees with respect to any Product; or (iii) that otherwise gives rise to any Deferred Revenue that is reflected on the Closing Balance Sheet (each an “Ongoing Customer Contract”);
(iv) distributor, reseller, sales representative, marketing, system integration, OEM, sublicensing or other similar Contract;
(v) Contract that cannot be cancelled on 90 days’ or less notice without penalty fee or other expense due on account of such cancellation;
(vi) settlement agreement or Contract with any Person containing obligations yet to be performed or completed or Liabilities yet to be satisfied by either or both parties;
(vii) partnership, joint venture or other similar Contract;
(viii) Contract relating to indebtedness (except for trade receivables in the ordinary course of business) or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset), except Contracts relating to indebtedness incurred in the ordinary course of business in an amount not exceeding $25,000;
(ix) Contracts for the sale of all or a significant portion of the Purchased Assets or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any of the Purchased Assets, other than a Contract in which the applicable sale, pledge or purchase has been consummated and there are no material obligations or Liabilities surviving;
(x) Contract that is a Government Contract or Government Proposal;
(xi) employment or consulting Contract providing for base salary compensation in excess of $50,000 per year and that is not terminable upon 90 days’ notice or less without penalty fee or other payment in excess of accrued salary for time worked;
(xii) collective bargaining agreements or agreements with any labor organization, union or association;
(xiii) all Intellectual Property Licenses, excluding non-exclusive licenses to “off the shelf” Software generally available on non-negotiable terms and available for an acquisition cost of less than $25,000 per annum;
(xiv) all licenses and agreements pursuant to which the Sellers or any Transferred Company has granted any third party any rights or interests in any Intellectual Property Assets (excluding any licenses that do not differ in any material respect from the Standard Seller Terms);
(xv) license, technology transfer, franchise or other Contract in respect of any Intellectual Property Asset with royalty payments in excess of $50,000 per year;
(xvi) Contract that may require or permit the release of Product source code;
(xvii) agency, dealer, sales representative or other similar Contract;
(xviii) Contract that grants any (A) exclusive license, supply, distribution or other rights, (B) rights of first refusal, rights of first negotiation or similar rights, (C) preferential or exclusive rights to purchase or license any Products or services or (D) other rights or obligations that otherwise limit the freedom of any Selling Company to compete in any line of business or with any Person or in any area to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Purchased Asset and that would so limit the freedom of the Purchaser or its Affiliates on or after the Closing Date;
(xix) agreements providing for any minimum or guaranteed payments by any of the Selling Group in excess of $50,000 per year or waiving any right for any of the Selling Group to receive payments or royalties in excess of $50,000 per year relating to any Intellectual Property Assets;
(xx) Contract with or for the benefit of any Interested Person (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or similar arrangements and (C) employee benefits generally made available to employees of the Business); or
(xxi) other Contract not made in the ordinary course of business that is material to the Business and the Purchased Assets taken as a whole.
(b) Section 5.12(b)(1) of the Disclosure Schedule 2.9 lists, as of the date hereof, all Ongoing Customer Contracts and all other Contracts to which any Selling Company is party, or to which the Business is subject, relating to the maintenance, support, or enhancement of any Product (the “Maintenance Contracts”). As to each Maintenance Contract (and, to the extent not captured within the definition of “Maintenance Contracts”, each Ongoing Customer Contract), Section 5.12(b)(2) of the Disclosure Schedule sets forth a complete forth: (i) the name and accurate list, in each case whether written or unwritten, of all identity of the following Contracts, agreements applicable customer; (ii) the remaining term of such Maintenance Contract or Ongoing Customer Contract and arrangements (iii) any material deviation in the terms of the Maintenance Contract or Ongoing Customer Contract from the standard Business terms and conditions (copies of which are attached to Section 5.12(b) of the Disclosure Schedule (the “Standard Seller Terms”) with respect to the Seller:
(au) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00maintenance fees, contingent or otherwise;
(bv) Contracts with respect to which Seller expects to receive paymentsscope of support services, (w) duration, (x) ownership of Intellectual Property, (y) limitation of liability, or incur costs (z) effects of termination. To Sellers’ knowledge, no customer of the Business who receives services under any Maintenance Contract or servicesOngoing Customer Contract either: (I) intends to stop receiving services under such customer’s Maintenance Contract or otherwise to terminate such Maintenance Contract or Ongoing Customer Contract, or (II) intends to materially reduce or eliminate such services in favor of more the receipt of similar services from any Person other than $15,000.00 in any twelve-month period;the Sellers. The Sellers have made available to the Purchaser copies of the terms and conditions of sale, license or lease applicable to each of the Major Customers (the “Major Customer Terms”).
(c) Contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or “most favored nation” provisions;
(j) Contracts or other arrangements which require the Seller to deliver services on a “fixed fee” or “not to exceed” basis;
(k) employment, severance, consulting, deferred compensation and similar agreements;
(l) Contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
(m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”); and
(t) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect with respect to the Selling Group, and, to Sellers’ knowledge, with respect to any other party to such Material Contract, and represents a valid and binding obligation of the applicable Selling Company, enforceable in accordance with its terms, 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). There Except as set forth in Section 5.12(c) of the Disclosure Schedule, no Selling Company is no in breach of or default under any Material Contract, nor, to the Sellers’ knowledge, is any other party to such Material Contract. No event or condition which circumstance has occurred or exists which constitutes or whichthat, with notice or without noticelapse of time or both, the happening would constitute an event of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge of the Seller, any other party thereto, or could result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respectsbenefit thereunder. There are no material disputes pending renegotiations of any Material Contract and or, to the knowledge of the SellerSellers’ knowledge, no party to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of threatened under any Material Contract. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder and, if oral, a written description of all terms thereof) have been provided to Purchaser.
(d) Except for the Excluded Assets and any rights or interests provided under the Transition Services Agreement, there are no rights or interests which relate to the Business (whether presently known or unknown, contingent or otherwise) under any Contract to which any of the Selling Group is a party or by which any of their assets is bound where such Contract provides for such rights or interests with respect to the Business and also relates to any other business or business function of the Sellers.
Appears in 1 contract
Sources: Asset and Share Purchase Agreement (Concurrent Computer Corp/De)
Material Contracts. Schedule 2.9 (a) Except for this Agreement, Section 3.17 of the Company Disclosure Schedule sets forth Letter contains a complete and accurate 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 whether written or unwrittencase, of all of the following Contractsin any geographic area, agreements in each case, both (A) in any geographic area and arrangements with respect (B) in a manner that is material to the Seller:
(a) Contracts with respect to which Seller has any liability or obligation involving more than $15,000.00Company and the Company Subsidiaries, contingent or otherwisetaken as a whole;
(bii) Contracts 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 respect to which Seller expects to receive paymentsa value in excess of $5,000,000, or incur costs (B) contains representations, covenants, indemnities or services, 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 $15,000.00 in any twelve-month period5,000,000;
(cv) Contracts 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 may extend for is material to the business of the Company and the Company Subsidiaries, taken as a term 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 more than one year after the Closing Company and the Company Subsidiaries, taken as a whole, other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required non-exclusive licenses granted on substantially standard terms with respect to be disclosed on Schedule 2.9 of the Disclosure Schedulecommercially available Software or information technology services;
(dvi) all agreements with Suppliers each Contract not otherwise described in any other subsection of this Section 3.17(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 which Seller has any liability material assets of the Company or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premiumthe Company Subsidiaries;
(ex) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller or any other Person;
(f) distribution, marketing, reseller, partner, sales, agency, independent sales agency and referral contracts;
(g) Contracts, instruments and arrangements relating to any Indebtedness or the guarantee thereof;
(h) Contracts and other arrangements of Seller with any officer, director, manager, stockholder, equity holder, or Affiliate of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope of the Business including, without limitation, any agreement each Contract that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, exclusivity rights or “most favored nationnations” provisionsprovisions 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;
(jxi) Contracts each Contract relating to outstanding Indebtedness for borrowed money (other than intercompany Indebtedness owed by the Company or other arrangements which require any Company Subsidiary) of the Seller to deliver services on a “fixed fee” Company or “not to exceed” basisany Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in an aggregate principal amount in excess of $5,000,000;
(kxii) employmenteach Contract governing any collaboration, severanceco-promotion, consultingstrategic alliance or design project contract which, deferred compensation in each case, is material to the Company and similar agreementsthe Company Subsidiaries, taken as a whole;
(lxiii) Contracts each Contract involving any material collective bargaining agreement or other material Contract with respect to mergers or acquisitions, sales of securities or material assets, or investments by Seller;
any labor union (m) Contracts with Governmental Entities, including but not limited to any franchise agreement, license agreement, or right of way use agreement;
(n) strategic alliance, co-marketing, joint development or similar agreements;
(o) all collective bargaining agreements or Contracts with any union;
(p) powers of attorney;
(q) agreements, Contracts, instruments, commitments, plans or other arrangements of Seller outside of the Ordinary Course of Business;
(r) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation of fiber optic lines, coaxial cables, or any other Seller owned or controlled facilities or equipment to such entity’s poles or conduits (“Pole Attachment Agreements”organization); and
(txiv) any Contract not otherwise described in any other agreements or Contracts which are 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 Business, Company.
(b) True and complete copies of each Material Contract in effect as of the Acquired Assets, date hereof have been made available to Parent or publicly filed with the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets SEC prior to the extent not already listed and disclosed pursuant to the items set forth abovedate hereof. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Seller has furnished to the Purchaser true, complete, and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Seller and the other parties thereto. Each Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such Material Contract by Seller or, to the knowledge None of the Seller, Company or any other party thereto, Company Subsidiary is in (or could cause has received any written claim of) breach or default under the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. To the knowledge of the Seller, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations terms of any Material Contract and to no event has occurred with notice or lapse of time or both that would constitute a breach or default thereunder by the knowledge Company or any of the SellerCompany 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 to a any Material Contract intends to terminate, accelerate, cancel is in breach of or materially change default under the terms of any Material ContractContract where such breach or default has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Material Contract is a valid, binding and enforceable, obligation of the Company or the Company Subsidiary which is party thereto and, to the Company’s Knowledge, of each other party thereto, and is in full force and effect, in each case, subject to the Enforceability Limitations.
Appears in 1 contract
Material Contracts. Schedule 2.9 (a) Except for this Agreement and except for the Contracts filed as exhibits to the Company Reports, as of the Disclosure Schedule sets forth date hereof, none of the Company or its Subsidiaries is a complete and accurate listparty to or bound by any Contract (or, in each case whether written or unwrittencase, any group of all of the following Contracts, agreements and arrangements with respect to the Seller:
(a) related Contracts with respect to which Seller has any liability a single transaction or obligation involving more than $15,000.00, contingent or otherwiseseries of related transactions):
(i) that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(bii) Contracts with respect to which Seller expects to receive payments, any Significant Content Provider or incur costs or services, of more than $15,000.00 in any twelve-month periodSignificant Distribution Partner;
(ciii) Contracts that may extend for is a term of more than one year after the Closing other than Standstill Agreement or that contains any vendor standstill or similar agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.9 of the Disclosure Schedule;
(d) all agreements with Suppliers with respect pursuant to which Seller has any liability or obligation involving more than $15,000.00 and that is not terminable by Seller on thirty (30) days or less prior written notice without material liability, penalty or premium;
(e) Contracts under which the amount payable by Seller is dependent on the revenue, income or other similar measure of Seller Company or any other of its Affiliates has agreed not to acquire assets or securities of another Person;
(fiv) distribution(A) that purports to limit in any material respect either the type of business in which the Company or any of its Affiliates (or, marketingafter the Effective Time, reseller, partner, sales, agency, independent sales agency and referral contracts;
(gParent or any of its Affiliates) Contracts, instruments and arrangements relating to any Indebtedness may engage or the guarantee thereof;
manner or locations in which any of them may so engage in any business, (hB) Contracts and other arrangements that could require the disposition of Seller with any officer, director, manager, stockholder, equity holder, material assets or Affiliate line of Seller;
(i) Contracts or other arrangements which place any limitation on the method of conducting or scope business of the Business includingCompany or any of its Affiliates (or, without limitationafter the Effective Time, Parent or any agreement of its Affiliates), (C) that contains any exclusivity, non-competition, non-solicitation, no-hire, right of first refusal, or grants “most favored nation” provisionsstatus or contains “exclusivity,” requirements obligations or similar provisions that, following the Merger, would purport to apply to Parent or any of its Affiliates, including the Company and its Subsidiaries, (D) that prohibits or limits the right of the Company or any of its Affiliates to make, sell or distribute any products or services, (E) that includes “take or pay” requirements or similar provisions obligating a Person to obtain a minimum quantity of goods or services from another Person or (F) pursuant to which the Company or any of its Affiliates has granted pricing discounts in connection with bundling of products or services, sales volume or services levels, in each case, as it relates to a counterparty to any such Contract;
(jv) Contracts pursuant to which the Company or other arrangements which require any of its Subsidiaries has potentially material indemnification obligations to any Person, except for any Contract entered into in the Seller to deliver services on a “fixed fee” or “not to exceed” basisordinary course of business consistent with past practice;
(kvi) employmentrelating to the acquisition or disposition of any business (whether by merger, severancesale of stock, consultingsale of assets or otherwise) (A) that was entered into after the Applicable Date and (B) pursuant to which any potential earn-out, deferred compensation or contingent payment obligations remain outstanding (excluding indemnification obligations in respect of representations and similar agreementswarranties) or otherwise survive as of the date hereof);
(lvii) Contracts with respect relating to mergers the formation, creation, operation, management, control or acquisitionsgovernance of any partnership, sales joint venture, long-term alliance or other similar agreement or arrangement material to the Company or any of securities its Subsidiaries or material assetsin which the Company or any of its Subsidiaries owns more than ten percent voting, economic or other membership or partnership interest, or investments by Sellerany interest valued at more than $5 million without regard to percentage voting or economic interest;
(mviii) Contracts with Governmental Entitiesbetween the Company or any of its Subsidiaries, including but not limited on the one hand, and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares or any of their respective Affiliates (other than the Company and its Subsidiaries), on the other hand;
(ix) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any franchise agreementasset), license agreementin either case, in excess of $5 million;
(x) that grants any right of first refusal or right of way use agreementfirst offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of any material assets or businesses;
(nxi) strategic alliancecontaining a put, co-marketing, joint development call or similar agreementsright pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $5 million;
(oxii) all collective bargaining evidencing financial or commodity hedging or similar trading activities, including any interest rate swaps, financial derivatives master agreements or Contracts with confirmations, or futures account opening agreements and/or brokerage statements or similar Contract to which the Company or any unionof its Subsidiaries is a party;
(pxiii) powers relating to material Intellectual Property Rights or IT Assets, excluding (i) non-exclusive licenses to commercially available software with annual fees of attorneyless than $500,000 or (ii) non-exclusive licenses granted by the Company or its Subsidiaries to customers in the ordinary course of business;
(qxiv) agreements, Contracts, instruments, commitments, plans that is a public or other arrangements of Seller outside posted Privacy Policy of the Ordinary Course of BusinessCompany and its Subsidiaries;
(rxv) agreements, licenses, permits, registrations, or other approvals with any Governmental Entity;that is a Company Labor Agreement; or
(sxvi) any agreements with any Governmental Entity that prohibits the payment of dividends or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing Seller’s attachment or installation distributions in respect of fiber optic lines, coaxial cables, the capital stock of the Company or any other Seller owned of its Subsidiaries, the pledging of the capital stock of the Company or controlled facilities any of its Subsidiaries or equipment to such entity’s poles the incurrence of indebtedness for borrowed money or conduits (“Pole Attachment Agreements”); andguarantees by the Company or any of its Subsidiaries.
(ta) other agreements or Contracts which are material to the Business, the Acquired Assets, or the Seller, or which a reasonable purchaser would consider important in deciding whether or not to acquire the Acquired Assets to the extent not already listed and disclosed pursuant to the items set forth above. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively is referred to herein as a “Material ContractsContract.”. The Seller
(b) A complete and correct copy of each Material Contract has furnished been made available to Parent in an electronic data room prior to the Purchaser truedate hereof. Each of the Material Contracts (and those Contracts which would be Material Contracts but for the exception of being filed as exhibits to the Company Reports) is valid and binding on the Company or its Subsidiaries, completeas the case may be, and, to the Company’s Knowledge, each other party thereto, and correct copies of all Material Contracts. Each Material Contract sets forth is in full force and effect, in each case subject to the entire agreement Bankruptcy and understanding between the Seller Equity Exception, except for such failures to be valid and the other parties thereto. Each Material Contract is valid, binding and or to be in full force and effect and enforceable as would not, or would not reasonably be expected to, individually or in accordance with its termsthe aggregate, result in a Material Adverse Effect. There is exists no breach or event or condition which has occurred or exists which constitutes or which, of default with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under respect to any such Material Contract by Seller Contracts on the part of the Company or its Subsidiaries or, to the knowledge of the SellerCompany’s Knowledge, any other party thereto, and no event has occurred that with the lapse of time or could cause the acceleration giving of any obligation notice or loss of any rights of any party thereto both would constitute a breach or give rise to any right of termination default thereunder by the Company or cancellation thereof. To the knowledge of the Sellerits Subsidiaries or, none of the parties to any Material Contract have informed Seller that it will not fulfill its obligations thereunder in all material respects. There are no pending renegotiations of any Material Contract and to the knowledge of Company’s Knowledge, any other party thereto, except in each case, for such invalidity, failure to be binding, unenforceability, ineffectiveness, breaches or defaults that would not, individually or in the Selleraggregate, no party reasonably be expected to result in a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material ContractAdverse Effect.
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