Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound: (i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole; (ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole; (iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000; (iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000; (v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries; (vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate; (vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC; (viii) any Contract governing a Related Party Transaction (as defined below); (ix) any registration rights agreements with respect to securities of the Company; (x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and (xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”. (b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Meredith Corp), Merger Agreement (Time Inc.)
Material Contracts. (a) Section 4.21(aOther than the Oil and Gas Agreements, which have been previously made available or provided to CRI, subsections (i) through (xii) of the Company Disclosure Letter sets forth, as Section 4.23 of the date of this Agreement, Disclosure Schedule contain a correct and complete list of each of the following types of Contracts contracts and agreements to which the Company or any of its Subsidiaries Subsidiary is a party or by which any (such contracts, agreements and arrangements as are required to be set forth in Section 4.23(a) of their respective properties or assets is bound:the Disclosure Schedule, together with the Oil and Gas Agreements, being the "Material Contracts"):
(i) each Contract contract or agreement that (A) limits or restricts in any material respect contemplates an exchange of consideration with a value of more than $250,000 net to the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholeCompany's interest;
(ii) each Contract that is a joint venture all management contracts (excluding contracts for employment) and contracts with other consultants, including any contracts involving the payment of royalties or partnership agreement that is material to other amounts calculated based upon the revenues or income of the Company or any Subsidiary or income or revenues related to any product of the Company or any Subsidiary, which require continued payment thereunder and its Subsidiariescannot be terminated by the Company or Subsidiary, taken as a wholethe case may be, with 30-day notice;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit all contracts and those between the Company and its wholly owned Subsidiaries) relating to agreements evidencing indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(xiv) all contracts and agreements with any employment Governmental Authority, excluding state leases or consulting Contract other governmental mineral rights;
(in each case with respect v) all contracts and agreements providing for benefits under any Plan, excluding individual stock option grant agreements and stock subscription agreements;
(vi) all agreements related to which professional services rendered to the Company has continuing obligations as of or any Subsidiary in connection with the date hereofOffer, the Merger and this Agreement;
(vii) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee all contracts providing for an annual base salary "earn-out" or similar contingent payments in excess of $250,000250,000 by the Company or any Subsidiary;
(viii) all joint venture, partnership, and similar agreements;
(ix) all contracts for employment required to be listed in Section 4.11 of the Disclosure Schedule;
(x) all contracts providing for indemnification of directors, officers, employees, consultants or other persons other than normal course indemnity provisions; and
(xi) all other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company, any other Contract Subsidiary or series the conduct of related Contracts under their respective businesses, or the absence of which it would reasonably be expected that prevent or delay consummation of the Offer or the Merger or otherwise prevent or delay the Company and from performing its Subsidiaries obligations under this Agreement or would receive annual payments of $7,000,000 or more (each, have a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Adverse Effect.
(b) Except for any Company Material Contract that has terminated or expired as disclosed in accordance with its terms Section 4.23(b) of the Disclosure Schedule and except as has would not had, prevent or delay consummation of the Offer or the Merger or otherwise prevent or delay the Company from performing its obligations under this Agreement and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Company Material Contract is a legal, valid and binding and in full force and effect and, to the Knowledge agreement of the Company, enforceable against and none of the Material Contracts is in default by its terms or has been canceled by the other party or parties thereto in accordance with its terms, subject party; (ii) to the Enforceability Exceptions. Except for breachesCompany's knowledge, violations no other party is in breach or defaults which have not hadviolation of, or default under, any Material Contract; and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither (iii) the Company nor and the Subsidiaries are not in receipt of any claim of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such agreement. The Company Material Contract. True has furnished or made available to CRI true and complete copies of the Company all Material Contracts and Contracts, including any material amendments thereto have been made available to Parent prior to the date of this Agreementthereto.
Appears in 3 contracts
Sources: Merger Agreement (Comstock Resources Inc), Merger Agreement (Devx Energy Inc), Merger Agreement (Comstock Resources Inc)
Material Contracts. (a) Section 4.21(a) Schedule 5.19 of the Company Parent Disclosure Letter sets forthforth a true and complete list (other than the Parent Marketing Contracts), as of the date of this Agreement, a correct and complete list of:
(i) any Contract that is still in force or in respect of each of the following types of Contracts to which the Company Parent or any of its Subsidiaries is a party remains bound and which has been or would be required by which any of their respective properties Canadian Securities Laws or assets is bound:
(i) each Contract that (A) limits pursuant to the Exchange Act to be filed by Parent with the Canadian Securities Regulators or restricts in any material respect with the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholeSEC;
(ii) each Contract that is a joint venture provides for the acquisition, disposition, license, use, distribution or partnership agreement outsourcing of assets, services, rights or properties with respect to which Parent reasonably expects that is material to the Company Parent and its SubsidiariesSubsidiaries will make payments in any calendar year in excess of $3,500,000 or aggregate payments in excess of $25,000,000, taken as in each case other than (A) any Contract providing for the purchase or sale by Parent or any of its Subsidiaries of Hydrocarbons, or related to Hydrocarbons or produced water or freshwater or Contracts for gathering, processing, transportation, treating, storage, blending or similar midstream services (each, a whole“Parent Marketing Contract”) or (B) master services agreements and similar agreements;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those agreements solely between the Company or among Parent and its wholly owned Subsidiaries) relating to indebtedness for borrowed money (A) evidencing Indebtedness of Parent or any of its Subsidiaries or (B) that creates a capitalized lease obligation of Parent or any of its Subsidiaries, in each case with an aggregate principal amount in excess of $1,000,0005,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any Subsidiary of Parent is a party that (A) restricts the ability of Parent or any Subsidiary of Parent to compete in any business or with any Person in any geographical area, (B) requires Parent or any Subsidiary of Parent to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of any third party, except in the case of each of clauses (A), (B) and (C), for such restrictions, requirements and provisions that are not material to Parent and its Subsidiaries or that relate to acreage dedications;
(v) any Parent Marketing Contract that has a remaining term of greater than 30 days and does not allow Parent to terminate it without penalty to Parent or any of its Subsidiaries has continuing withing 30 days (A) which would reasonably be expected to involve volumes in excess of 7,500 barrels of Hydrocarbons per day or 25 MMcf of gas per day (in each case, calculated on a yearly average basis) or (B) that contains acreage dedications of more than 15,000 acres;
(vi) any acquisition or divestiture Contract that contains “earn-earn out” or other similar contingent payment obligations (other than asset retirement obligations, plugging and abandonment obligations and other reserves of Parent set forth in the Parent Reserve Report), that could would reasonably be expected to result in annual payments by or to Parent or any of its Subsidiaries in excess of $2,500,000;
(vii) each Parent Real Property Lease requiring payments by the Company or its Subsidiaries in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SECany calendar year;
(viii) each Contract for lease of personal property or real property (other than the Parent Real Property Leases and Oil and Gas Properties and Contracts related to drilling rigs) involving payments in excess of $5,000,000 in any calendar year that are not terminable without penalty or other liability to Parent (other than any ongoing obligation pursuant to such Contract governing a Related Party Transaction that is not caused by any such termination) within sixty (as defined below)60) days;
(ix) each Contract that would reasonably be expected to require the disposition of any registration rights agreements with respect to securities assets or line of business of Parent or its Subsidiaries for which the Companyaggregate consideration (or the fair market value of such consideration, if non-cash) exceeds $5,000,000;
(x) each Contract involving the pending acquisition or sale of (or option to purchase or sell) any employment of the assets or consulting Contract properties of Parent or its Subsidiaries (in each case with respect to including any Oil and Gas Properties but excluding purchases and sales of Hydrocarbons), taken as a whole, for which the Company has continuing obligations as aggregate consideration (or the fair market value of such consideration, if non-cash) exceeds $5,000,000;
(xi) each joint venture, other than any customary joint operating agreements or unit agreements affecting the date hereofOil and Gas Properties of Parent or that are exclusively among Parent and its wholly owned Subsidiaries;
(xii) with any current each Contract relating to a Parent Related Party Transaction; and
(xiii) each joint development agreement, exploration agreement, participation, farmout, farmin or similar Contract, excluding joint operating agreements, that would reasonably be expected to (A) executive officer require Parent or any of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary its Subsidiaries to make expenditures in excess of $250,000; and
(xi) 10,000,000 in any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month one calendar year period or (B) generate net production in excess of 5,000 Boe per day during the remaining period of such Contractcalendar year ended December 31, if shorter. Each Contract of the type described in clauses 2023 (i) through (xi) is referred to herein as calculated on a “Company Material Contract”yearly average basis).
(b) Collectively, the Contracts described in Section 5.19(a) are herein referred to as the “Parent Contracts,” including, for the avoidance of doubt, any Parent Marketing Contract responsive under Section 5.19(a)(v). A complete and correct copy of each of the Parent Contracts (other than the Parent Marketing Contracts) has been made available to the Company. Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Parent Material Adverse Effect, each Company Material Parent Contract is valid and legal, valid, binding and enforceable in accordance with its terms on Parent and each of its Subsidiaries that is a party thereto and, to the knowledge of Parent, each other party thereto, and is in full force and effect andeffect, subject, as to enforceability, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability ExceptionsCreditors’ Rights. Except for breaches, violations or defaults which have as has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Parent Material Adverse Effect, neither the Company Parent nor any of its Subsidiaries is in breach or default under any Parent Contract nor, to the knowledge of Parent, is any other party to any such Parent Contract in breach or default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by Parent or its Subsidiaries, or, to the knowledge of Parent, any other party thereto. There are no disputes pending or, to the knowledge of Parent, threatened with respect to any Parent Contract and neither Parent nor any of its Subsidiaries has received any written notice of the intention of any other party to any Parent Contract to terminate for default, convenience or otherwise any Parent Contract, nor to the Knowledge knowledge of the Company any other party to a Company Material ContractParent, is any such party threatening to do so, in violation of each case except as has not had or would not reasonably be expected to have, individually or in default under any provision of such Company the aggregate, a Parent Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementAdverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Baytex Energy Corp.), Merger Agreement (Ranger Oil Corp), Merger Agreement (Ranger Oil Corp)
Material Contracts. (a) Section 4.21(a) 3.21 of the Company Partnership Disclosure Letter Schedule sets forth, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts forth any contract (excluding any Partnership Benefit Plan) to which the Company Partnership or any of its Subsidiaries Partnership Subsidiary is a party or by which the Partnership or any Partnership Subsidiary is bound within the following categories and existing as of the entry into this Agreement (any of their respective properties or assets is bound:the following, “Partnership Material Contracts”):
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities ActSEC);
(ii) any contract that (A) expressly imposes any material restriction on the right or ability of the Partnership or any of the Partnership Subsidiaries to compete with any other person or acquire or dispose of the securities of any other person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Partnership or any of the Partnership Subsidiaries in a material manner;
(iii) each active contract with the top five (5) customers of the Partnership (taking into account the pipeline and storage businesses) (the “Top Partnership Pipeline/Storage Customers”), in their capacities as such, as measured by total revenues from the period from January 1, 2023 through September 30, 2023;
(iv) any contract under which the Partnership or any of the Partnership Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money or any guarantee of such indebtedness of the Partnership or any of the Partnership Subsidiaries, (B) granted a material Lien on any material assets, whether tangible or not filed intangible, of the Partnership or any of the Partnership Subsidiaries to secure any indebtedness (excluding Partnership Permitted Liens) or (C) extended credit to any person (other than (x) intercompany loans and advances and (y) customer payments in terms in the ordinary course of business), in each case of clauses (A), (B) and (C), in an amount in excess of $50 million;
(v) any guarantee by the Company with Partnership or any of the SECPartnership Subsidiaries of any obligation of any person that is not the Partnership or one of the Partnership Subsidiaries under any contract required to be set forth in Section 3.21(a)(iv) of the Partnership Disclosure Schedule;
(vi) any joint venture, partnership or limited liability company agreement or other similar contract relating to the formation, creation, operation, management or control of any joint venture;
(vii) any contract between the Partnership or any of the Partnership Subsidiaries, on the one hand, and any Partnership unitholder holding 5% or more of any class of issued and outstanding Partnership Units (in their capacity as such), on the other hand;
(viii) any Contract governing contract that is a Related Party Transaction (as defined below)settlement, conciliation or similar agreement pursuant to which the Partnership or any of the Partnership Subsidiaries will have any material outstanding obligation after the Closing;
(ix) any registration rights agreements with respect to securities contract expressly limiting or restricting the ability of the CompanyPartnership or any of the Partnership Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, limited liability company interests or other equity interests, as the case may be;
(x) any employment acquisition contract that contains “earn out” or consulting Contract (other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in each case with respect to which payments after the Company has continuing obligations as date hereof by the Partnership or any of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary Partnership Subsidiaries in excess of $250,000; and50 million;
(xi) any other Contract lease or series of related Contracts under which it would reasonably be expected that sublease with respect to a Partnership Leased Real Property requiring payments by the Company and its Subsidiaries would receive annual payments Partnership or any Partnership Subsidiary in excess of $7,000,000 or more 10 million in 2024 (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during excluding any twelve easements);
(12xii) month period except as would not be material to the Partnership and the Partnership Subsidiaries, taken as a whole, any contract providing for an indemnification of any officer, director or employee by the remaining period of such Contract, if shorter. Each Contract Partnership or any of the type described Partnership Subsidiaries with respect to service in clauses (i) through (xi) is referred to herein such capacities, other than contracts entered into on substantially the same form as a “Company Material Contract”the Partnership’s standard forms.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Partnership Material Adverse Effect, : (i) each Company Partnership Material Contract is valid and binding and in full force and effect andeffect, to the Knowledge of the Company, and is enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Equitable Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in ; (ii) none of the aggregate, a Company Material Adverse Effect, neither the Company Partnership nor any of its Subsidiariesthe Partnership Subsidiaries have violated or breached, nor or committed any default under, any Partnership Material Contract; (iii) to the Knowledge knowledge of the Company any Partnership, no other party to a Company any Partnership Material Contract has violated or breached, or committed any default under, any Partnership Material Contract; and (iv) since January 1, is in 2021, none of the Partnership nor any of the Partnership Subsidiaries have received any notice or other communication, whether or otherwise, regarding any actual or possible violation of or in breach of, or default under under, any provision of such Company Partnership Material Contract. True .
(c) The Partnership and complete copies of the Company Material Contracts and any material amendments thereto Partnership Subsidiaries have been made available to Parent prior to the date an accurate and complete copy of this Agreementeach Partnership Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (NuStar Energy L.P.), Merger Agreement (Sunoco LP), Merger Agreement (Sunoco LP)
Material Contracts. (a) Section 4.21(a) Schedule 4.17 of the Company Disclosure Letter Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forthforth a true and complete list, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundof:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Exchange Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ixii) any registration each contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets (including Intellectual Property rights), services, rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case properties involving, or with respect to which the Company has continuing obligations as reasonably expects that the Company or any of its Subsidiaries will make, payments in excess of $500,000 in any calendar year;
(iii) each contract that constitutes a commitment relating to Indebtedness for borrowed money or the deferred purchase price of property by the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $500,000, other than agreements solely between or among the Company and its Subsidiaries;
(iv) each contract for lease of personal property or real property involving payments in excess of $500,000 in any calendar year that are not terminable without penalty within sixty (60) days;
(v) each contract relating to power or electricity supply to the Company or its Subsidiaries for the purpose of Bitcoin mining, including but not limited to all agreements between PJM and the Company or any of the date hereofCompany’s Subsidiaries;
(vi) each contract relating primarily to Bitcoin mining, including miner purchase agreements, miner hosting agreements, infrastructure agreements, immersion cooling agreements and agreements related to research and development (including any statements of work thereto);
(vii) each contract relating to carbon sequestration in connection with any current the Bitcoin mining activities of the Company and its Subsidiaries;
(Aviii) executive officer each contract relating to the research and development of Bitcoin miners;
(ix) each contract between the Company or a Subsidiary of the Company, on the one hand, and another Subsidiary of the Company, on the other hand;
(x) each contract: (A) that limits in any material respect the freedom of the Company or any of its Subsidiaries to compete or operate in any line of business or geographical area, or beneficially own any assets, properties or rights, anywhere at any time; (B) member of that requires the Company Board, or any of its Subsidiaries to deal exclusively with any Person or grants any exclusive rights to any Person; (C) that contains any “most favored nation” or similar provision in favor of the counterparty; (D) that contains requirements to purchase any minimum portion of any product or service from any Person or to sell any minimum portion of any product or service to any Person; or (E) that contains a right of refusal, right of first offer or right of first negotiation or similar right with respect to a material asset owned by the Company Employee providing for an annual base salary or any of its Subsidiaries;
(xi) each contract with any Governmental Entity;
(xii) each contract involving the settlement of any Proceeding during the past three (3) years which requires payment by the Company or any of its Subsidiaries in excess of $250,000100,000 in any calendar year and under which any such payment is still owing; and
(xixiii) each contract involving the pending acquisition or sale of (or option to purchase or sell) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract material amount of the type described assets or properties of the Company, taken as a whole. Collectively, the contracts set forth in clauses (iSection 4.17(a) through (xi) is are herein referred to herein as a the “Company Material Contract”Contracts.
(b) ” Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect andeffect, subject, as to enforceability, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability ExceptionsCreditors’ Rights. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither Neither the Company nor any of its Subsidiaries, nor and, to the Knowledge knowledge of the Company any Company, no other party to a Company Material ContractPerson, is in violation of material breach or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Q Power LLC), Merger Agreement (Stronghold Digital Mining, Inc.), Merger Agreement (Bitfarms LTD)
Material Contracts. (a) Except for this Agreement and the other Transaction Documents, the Contracts filed as exhibits to the Company Reports filed with the SEC prior to the date of this Agreement and as set forth on Section 4.21(a3.01(o) of the Company Disclosure Letter sets forthSchedule, as none of the date of this Agreement, Company or its Subsidiaries is a correct and complete list of each party to any of the following types of Contracts listed in clauses (i) through (xv) of this Section 3.01(o) which are currently in effect (such types of Contracts being the “Material Contracts”):
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) any Contract involving a loan (other than accounts receivable from trade debtors in the ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person where the amount of such loan, advance or investment is more than $1,000,000;
(iii) any Contract involving Indebtedness of the Company or any of its Subsidiaries of more than $1,000,000;
(iv) any Contract (including so called take-or-pay or keep-well agreements) under which any person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company or any of its Subsidiaries of more than $1,000,000;
(v) any Contract granting or evidencing a Lien on any properties or assets of the Company or any of its Subsidiaries with value of more than $1,000,000;
(vi) any Contract under which the Company or any of its Subsidiaries has any material obligations that have not been satisfied or performed (other than indemnification and confidentiality obligations) relating to the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of properties or assets of the Company or any of its Subsidiaries that have a fair market value or purchase price of more than $1,000,000 (by merger, purchase or sale of assets or stock or otherwise);
(vii) any Contracts which have not been fully performed involving any resolution or settlement of any Action with an amount in controversy greater than $1,000,000;
(viii) any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any of its Subsidiaries to compete in any geographic area, industry or line of business;
(ix) any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries is a party could be required to purchase or by which sell, as applicable, any equity interests of their respective properties any person or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with have a fair market value or purchase price of more than $1,000,000, excluding, in each case, ;
(x) acquisitions each Contract that involves the acquisition or dispositions disposition, directly or indirectly (by merger, license or otherwise), of suppliesany securities of any person (other than a company incentive awards) or any assets that (A) have a fair market value or purchase price of more than US$1,000,000, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (yB) of supplies, inventory, products, equipment, properties providing for any earn-out or similar payment payable to any person;
(xi) each share or stock redemption or purchase or other assets that are obsolete, worn out, surplus Contract affecting or no longer used or useful in relating to the conduct of business share capital of the Company or any of its Subsidiaries, including each Contract with any shareholder of the Company or any of its Subsidiaries which includes anti-dilution rights, voting arrangements or operating covenants;
(vixii) each Contract pursuant to under which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) granted any Contract governing a Related Party Transaction (as defined below);
(ix) Person any registration rights agreements rights, or any right of first refusal, first offer or first negotiation with respect to any shares of Common Stock or securities of any Subsidiaries of the Company;
(xxiii) any employment Contract giving the other party the right to terminate such Contract as a result of this Agreement or consulting Contract (in each case with respect to which the Company has continuing obligations as consummation of the date hereof) with any current transactions contemplated hereunder, where (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary such Contract requires any payment in excess of $250,000; and
1,000,000 per calendar year to be made by the Company or any of its Subsidiaries or (xiB) any other Contract or series the value of related Contracts under which it would reasonably be expected that the outstanding receivables due to the Company and its Subsidiaries would receive annual payments under such Contract as of the date of this Agreement is in excess of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more1,000,000, in each case, during case excluding purchase orders from customers in the ordinary course of business;
(xiv) any twelve Contract that contains any material restrictions with respect to (12A) month period payment of dividends or the remaining period of such Contract, if shorter. Each Contract any distribution with respect to equity interests of the type described in clauses Company or any of its Subsidiaries, (iB) through pledging of share capital of the Company or any of its Subsidiaries or (xiC) is referred to herein as a “issuance of guaranty by the Company Material Contract”.or any of its Subsidiaries; or
(bxv) Except for any Contract between any the Company Material Contract that has terminated or expired in accordance with its terms and except as has not hadSubsidiaries, on the one hand, and would not reasonably be expected to have, individually any directors or in officers of any the aggregate, a Company Material Adverse Effect, each or its Subsidiaries or their immediate family members or shareholders of the Company Material Contract is valid and binding and in full force and effect and, to holding more than 5% of the Knowledge voting securities of the Company, enforceable against on the other hand, under which there are material rights or obligations outstanding In each case, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party or parties thereto in accordance with its terms, subject and to the Enforceability Exceptions. Except for breachesCompany’s knowledge, violations or defaults which have not hadthe other parties thereto, and would not reasonably be expected to have, individually or in (ii) except as set forth on Section 3.01(o) of the aggregate, a Company Material Adverse EffectDisclosure Schedule, neither the Company nor any of its SubsidiariesSubsidiaries nor, nor to the Knowledge Company’s knowledge and as of the date hereof, any other party thereto, is in material breach or material violation of, or material default under, any Material Contract, (iii) except as set forth on Section 3.01(o) of the Company Disclosure Schedule, neither the execution of this Agreement nor the consummation of any other party Transaction shall constitute a material default under, give rise to a cancellation rights under, or otherwise adversely affect any of the material rights of the Company or any of its Subsidiaries under any Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies (iv) except as set forth on Section 3.01(o) of the Company Disclosure Schedule, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementContract.
Appears in 2 contracts
Sources: Share Purchase Agreement (Weichai America Corp.), Share Purchase Agreement (Power Solutions International, Inc.)
Material Contracts. (a) Subsections (i) through (xiii) of Section 4.21(a3.17(a) of the Company Disclosure Letter sets forth, Schedule contain lists of the following Contracts in effect as of the date of this Agreement, a correct hereof (together with all amendments and complete list of each of the following types of Contracts supplements) to which the Company or any of its Subsidiaries Company Subsidiary is a party party, or by which any of their respective properties property or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets asset of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value Company Subsidiary is bound or purchase price of more than $1,000,000, excluding, affected (such Contracts as are required to be set forth in each case, (xSection 3.17(a) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s Disclosure Schedule and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) collectively being, the “Company Material Contracts”):
(i) other than the Plans set forth on Section 3.10(a) of the Disclosure Schedule, (A) all employment Contracts of those employees and managers that receive from the Company or any Company Subsidiary annual compensation (including base salary, commissions, incentive payments, and annual or other periodic or project bonuses) in excess of $500,000, and (B) all individual consulting Contracts for those consultants that receive from the Company or any Company Subsidiary annual compensation in excess of $500,000 (provided that references to such Contracts have been made completely anonymous for those employees, managers or consultants based in jurisdictions where this is required under applicable data privacy/protection Laws); Table of Contents
(ii) all Company Intellectual Property Agreements;
(iii) all material Government Contracts, including material Current Government Contracts, and material Current Government Contract Bids;
(iv) all Contracts involving material joint ventures or material strategic alliances;
(v) those Contracts required to be set forth in Section 3.23 of the Securities Act)Company Disclosure Schedule;
(vi) other than the Plans set forth on Section 3.10(a) of the Disclosure Schedule, whether any Contract, including any stock option plan, stock appreciation right plan or not filed stock purchase plan, any of the benefits of which will be triggered or increased, or the vesting of benefits of which will be accelerated, by the Company with consummation of the SECTransactions or the value of any of the benefits of which will be calculated on the basis of any of the Transactions (either alone or upon a termination of employment or service in connection therewith);
(vii) all Contracts providing for indemnification, contribution or any guaranty in an amount that is material to the Company, not entered into in the ordinary course of business;
(viii) all Contracts since January 1, 2005 (A) relating to the disposition or acquisition by the Company or any Contract governing a Related Party Transaction Company Subsidiary of any business (as defined below)whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) for consideration in excess of $5,000,000 or (B) pursuant to which the Company or any Company Subsidiary will acquire any interest or make an investment in any other person, other than the Company Subsidiaries, in each case, that contain ongoing obligations that are material to the Company and the Company Subsidiaries;
(ix) any registration rights all mortgages, indentures, guarantees, loans, credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case, in excess of $10,000,000, other than (A) accounts receivables and payables, and (B) loans to or guarantees for direct or indirect wholly-owned Company Subsidiaries, in each case, in the ordinary course of business consistent with respect to securities of the Companypast practice;
(x) any employment or consulting Contract (in all material Contracts with each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the CompanyTop Suppliers, (B) member of the Company BoardTop Customers, or (C) Company Employee providing for an annual base salary in excess of $250,000; andTop Distributors and Top Resellers;
(xi) any Company Real Property Leases;
(xii) other Contract or series than the Plans set forth in Section 3.10(a) of related the Disclosure Schedule, all employment Contracts under which it that would reasonably be expected that obligate the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or any Company Subsidiary to make annual payments of $5,000,000 or more, any payment in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.connection with this Agreement; and
(bxiii) Except for any Company Material Contract that has terminated all other Contracts, whether or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or made in the aggregateordinary course of business, the absence or termination of which would have a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Material Contracts. (a) Except for this Agreement and as set forth in Section 4.21(a4.20(a) of the Company Disclosure Letter sets forthSchedule, as of the date of this Agreementhereof, a correct and complete list of each of the following types of Contracts to which neither the Company or nor any of its Subsidiaries is a party to or bound by which any contract of their respective properties or assets is bound:the type described in this Section 4.20(a) (herein as a “Company Material Contract”):
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC, other than Item 601(b)(10)(iii));
(ii) employment Contract or Contract with an individual for the provision of consulting services in lieu of employment that provides for annual cash base salary compensation as of the date hereof exceeding $150,000 per year;
(iii) any bonus or any other incentive compensation, deferred compensation, severance (excluding severance required to be paid under the Securities Actapplicable Law), whether salary continuation, pension, profit sharing or retirement plan, or any other employee benefit plan or arrangement in any case that is not filed by listed on Section 4.15(a) of the Company Disclosure Schedule;
(iv) any Contract between (x) the Company or any of its Subsidiaries, on the one hand, and (y) any Affiliate of the Company (other than the Company’s Subsidiaries), on the other hand under which the Company and its Subsidiaries are obligated to make annual payments following the date of this Agreement in excess of $500,000;
(v) any lease of personal property (or a series of related leases) having a value in excess of $250,000 per year;
(vi) any Contract containing covenants of the Company or any of its Subsidiaries (x) not to compete in any geographical area, or (y) which grants to any third party any exclusivity with respect to any geographic territory, any customer, or any product or service;
(vii) any Contract that creates a partnership or joint venture or similar agreement with respect to any material business of the SECCompany;
(viii) any material written Contract governing a Related Party Transaction (as defined below)other than purchase orders) with the top ten (measured by dollar sales volume during the fiscal year ended December 31, 2009) customers and suppliers of the Company and its Subsidiaries;
(ix) any registration rights agreements with respect Contract pursuant to securities which the Company or any of its Subsidiaries has advanced or loaned any amount in excess of $50,000 to any current director, officer or employee of the Company, other than business expense advances in the ordinary course of business consistent with past practice;
(x) any employment or consulting Contract (with annual payments in each case with respect excess of $500,000 pursuant to which the Company or any of its Subsidiaries has continuing obligations as of the date hereof) agreed to provide “most favored nation” pricing or other similar terms and conditions to any Person with any current (A) executive officer of respect to the Company’s or any of its Subsidiaries’ sale, (B) member distribution, license or support of the any Company Board, Products or (C) Company Employee providing for an annual base salary in excess of $250,000; andservices;
(xi) any Contract with any third party with respect to any services provided to the Company or any of its Subsidiaries which services are necessary for the Company’s or any of its Subsidiaries’ continuity of product development with respect to material Company products;
(xii) any indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage, Contract or other evidence of Indebtedness by the Company (including agreements related to interest rate or currency hedging activities) with any third party in excess of $500,000;
(xiii) any collective bargaining agreement or employee association agreement material to the Company and its Subsidiaries, taken as a whole;
(xiv) any Contract for the sale of assets since December 31, 2009 until the date of this Agreement (other than inventory in the ordinary course of business consistent with past practice) in excess of $500,000;
(xv) any written Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any Subsidiary would be required to purchase or sell any securities of any entity for an amount exceeding $500,000;
(xvi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or are obligated to make annual payments in excess of $5,000,000 500,000 (other than leases, subleases or more, real property license agreements or in each case, during the ordinary course of business consistent with past practice);
(xvii) any twelve acquisition agreement or other Contract (12other than with respect to inventory in the ordinary course consistent with past practice) month period pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” obligations; or
(xviii) any Contract with respect to the remaining period Company Intellectual Property or Intellectual Property of such Contract, if shorter. Each Contract another Person that is material to the conduct of the type described in clauses business of the Company and its Subsidiaries as currently conducted (i) through (xi) is referred to herein as a “Company Material Contract”other than contracts for generally available off-the-shelf software).
(b) Except for The Company has made available to the Parent copies of each Company Material Contract in effect, together with all material amendments and supplements thereto in effect. Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to havewould, individually or in the aggregate, reasonably be expected to result in a loss to (or claim upon) the Company Material Adverse Effectin excess of $500,000. To the Knowledge of the Company, each no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract that would, individually or in the aggregate, reasonably be expected to result in a loss to (or claim upon) the Company in excess of $500,000. Each Company Material Contract is a valid and binding and obligation in full force and effect all material respects of the Company or the Subsidiary of the Company which is party thereto and, to the Knowledge of the Company, enforceable against the of each other party or parties thereto thereto, and is in accordance with its termsfull force and effect, except that (i) such enforcement may be subject to the Enforceability Exceptions. Except for breachesapplicable bankruptcy, violations insolvency, reorganization, moratorium or defaults which have not hadother similar Laws, now or hereafter in effect, relating to creditors’ rights generally, and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. Neither the Company nor any Subsidiary of the Company has received any written notice or claim of material default under any Company Material Contract or any written notice of an intention to terminate, not renew or challenge the validity or enforceability of any Company Material Contract (including as a result of the execution and performance of this Agreement or the Transactions), and to the Company’s Knowledge, no event has occurred that, with or without notice or lapse of time or both, would not reasonably be expected to haveresult in a breach or a default under any Company Material Contract that would, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect, neither loss to (or claim upon) the Company nor any in excess of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement$500,000.
Appears in 2 contracts
Sources: Merger Agreement (Shamir Optica Holdings A.C.S. Ltd.), Merger Agreement (Essilor International /Fi)
Material Contracts. (a) Section 4.21(a) REIT III has made available to REIT II a true, correct and complete copy of the Company Disclosure Letter sets forth, each Contract in effect as of the date of this Agreement, a correct and complete list of each of the following types of Contracts hereof to which the Company REIT III or any of its Subsidiaries REIT III Subsidiary is a party or by which any of their respective its properties or assets is boundare bound that:
(i) each Contract that (A) limits is required to be filed with the SEC as an exhibit to REIT III’s Annual Report on Form 10-K for the year ending December 31, 2019 or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region subsequent current or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholeperiodic report;
(ii) each Contract that is a joint venture or partnership agreement that is material required to be described pursuant to Item 401 of Regulation S-K promulgated under the Company and its Subsidiaries, taken as a wholeSecurities Act;
(iii) each Contract that is a loan, guarantee of indebtedness obligates the REIT III Parties or credit agreement, note, bond, mortgage, indenture or any other binding commitment REIT III Subsidiary to make non-contingent aggregate annual expenditures (other than letters principal or interest payments or the deposit of credit other reserves with respect to debt obligations) in excess of $200,000 and those between is not cancelable within 90 days without material penalty to the Company REIT III Parties or any other REIT III Subsidiary;
(iv) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that materially restricts the business of the REIT III Parties or any other REIT III Subsidiary, including upon consummation of the transactions contemplated by this Agreement, or that otherwise restricts the lines of business conducted by the REIT III Parties or any other REIT III Subsidiary or the geographic area in which the REIT III Parties or any other REIT III Subsidiary may conduct business;
(v) is a Contract that obligates the REIT III Parties or any other REIT III Subsidiary to indemnify any past or present directors, officers, or employees of the REIT III Parties or any other REIT III Subsidiary pursuant to which the REIT III Parties or any other REIT III Subsidiary is the indemnitor;
(vi) constitutes (A) an Indebtedness obligation of the REIT III Parties or any other REIT III Subsidiary with a principal amount as of the date hereof greater than $200,000 or (B) a Contract under which (1) any Person including REIT III or a REIT III Subsidiary, has directly or indirectly guaranteed Indebtedness, liabilities or obligations of REIT III or REIT III Subsidiary or (2) REIT III or a REIT III Subsidiary has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person, including REIT III or another REIT III Subsidiary (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(vii) requires the REIT III Parties or any other REIT III Subsidiary to dispose of or acquire assets or properties that (together with all of the assets and its wholly owned Subsidiariesproperties subject to such requirement in such Contract) have a fair market value in excess of $200,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;
(viii) constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to indebtedness for borrowed money a swap or other hedging transaction of any type;
(ix) constitutes a loan to any Person (other than a Wholly Owned REIT III Subsidiary) by REIT III or any REIT III Subsidiary in an amount in excess of $1,000,000200,000;
(ivx) each Contract sets forth the operational terms of a joint venture, partnership, limited liability company or strategic alliance of the REIT III Parties or any other REIT III Subsidiary with respect a third party;
(xi) prohibits the pledging of the capital stock of REIT III or any REIT III Subsidiary or prohibits the issuance of guarantees by any REIT III Subsidiary;
(xii) contains covenants expressly limiting, in any material respect, the ability of REIT III or any REIT III Subsidiary to an interestsell, ratetransfer, currency pledge or otherwise dispose of any material assets or business of REIT III or any REIT III Subsidiary;
(xiii) contains restrictions on the ability of REIT III or any REIT III Subsidiary to pay dividends or other swap or derivative transaction distributions (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption organizational documents of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s REIT III and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its REIT III Subsidiaries;
(vixiv) each Contract pursuant to which the Company or any of its Subsidiaries is with a Governmental Authority;
(xv) has continuing “earn-out” or other similar obligations contingent purchase price payment obligations, in each case that could result in payments payments, individually or in the aggregate, in excess of $1,000,000 in the aggregate200,000;
(viixvi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether an employment Contract or not filed by the Company with the SECconsulting Contract;
(viiixvii) is a collective bargaining agreement or other Contract with any Contract governing a Related Party Transaction (as defined below)labor organization, union or association;
(ixxviii) is a Contract with any registration rights agreements with respect to securities of the Companyprofessional employer organization, staffing agency, temporary employee agency, or similar company or service provider;
(xxix) provides severance, retention, or transaction bonus payments, change of control payments, or similar compensation;
(xx) is a settlement agreement or release of claims with any employment current employee or consulting with any former employee within the past five years;
(xxi) is a lease, sublease, license or other rental agreement or occupancy agreement (written or verbal) which grants any possessory interest in and to any space situated on or in the REIT III Properties or otherwise gives rights with regard to use of the REIT III Properties; or
(xxii) is both (A) not made in the ordinary course of business and (B) material to REIT III and the REIT III Subsidiaries, taken as a whole.
(b) Each Contract (in each case with respect any of the categories set forth in Section 4.12(a) to which the Company has continuing obligations REIT III Parties or any other REIT III Subsidiary is a party or by which it is bound as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) hereof is referred to herein as a “Company REIT III Material Contract.”.
(bc) Except for any Company Each REIT III Material Contract is legal, valid, binding and enforceable on the REIT III Parties and each other REIT III Subsidiary that has terminated or expired is a party thereto and, to the Knowledge of REIT III, each other party thereto, and is in accordance with its terms full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). The REIT III Parties and each other REIT III Subsidiary has not hadperformed all obligations required to be performed by it prior to the date hereof under each REIT III Material Contract and, to the Knowledge of REIT III, each other party thereto has performed all obligations required to be performed by it under such REIT III Material Contract prior to the date hereof. None of the REIT III Parties or any other REIT III Subsidiary, nor, to the Knowledge of REIT III, any other party thereto, is in breach or violation of, or default under, any REIT III Material Contract, and no event has occurred that, with notice or lapse of time or both, would not reasonably be expected to haveconstitute a violation, breach or default under any REIT III Material Contract, except where in each case such breach, violation or default, individually or in the aggregate, would not reasonably be expected to have a Company REIT III Material Adverse Effect. None of the REIT III Parties or any other REIT III Subsidiary has received notice of any violation or default under, or currently owes any termination, cancellation or other similar fees or any liquidated damages with respect to, any REIT III Material Contract, except for violations, defaults, fees or damages that, individually or in the aggregate, would not reasonably be expected to have a REIT III Material Adverse Effect. Since December 31, 2019, neither REIT III nor any REIT III Subsidiary has received any written notice of the intention of any party to cancel, terminate, materially change the scope of rights under or fail to renew any REIT III Material Contract.
(d) Section 4.12(d) of the REIT III Disclosure Letter lists each Company Material Contract management agreement pursuant to which any third party manages or operates any of the REIT III Properties on behalf of REIT III or any REIT III Subsidiary, and describes the property that is valid subject to such management agreement, REIT III or the applicable REIT III Subsidiary that is a party, the date of such management agreement and each material amendment, guaranty or other agreement binding on REIT III or the applicable REIT III Subsidiary and relating thereto (collectively, the “REIT III Management Agreement Documents”). The true, correct and complete copies of all REIT III Management Agreement Documents have been made available to REIT II. Each REIT III Management Agreement Document is valid, binding and in full force and effect as against REIT III or the applicable REIT III Subsidiary and, to the Knowledge of the CompanyREIT III, enforceable as against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptionsthereto. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company Neither REIT III nor any of its SubsidiariesREIT III Subsidiary owes any termination, nor cancellation or other similar fees or any liquidated damages to the Knowledge of the Company any other third party to a Company Material Contract, is in violation of manager or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreementoperator.
Appears in 2 contracts
Sources: Merger Agreement (Resource Real Estate Opportunity REIT II, Inc.), Merger Agreement (Resource Apartment REIT III, Inc.)
Material Contracts. (a) Section 4.21(a4.09(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of Schedules lists each of the following types Contracts of the Companies (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 4.10(b) of the Disclosure Schedules and all Contracts relating to which Intellectual Property set forth in Section 4.12(d) of the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:Disclosure Schedules, being “Material Contracts”):
(i) each Contract of the Companies involving aggregate consideration in excess of €20,000 and which, in each case, cannot be cancelled by Scomedica without penalty or without more than 90 days’ notice;
(ii) all Contracts that require the Companies to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions in excess of €20,000;
(Aiii) limits all Contracts that provide for the indemnification by the Companies of any Person or restricts 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 stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which either of the Companies is a party in excess of €20,000;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Companies is a party and which are not cancellable without material penalty or without more than 90 days’ notice in excess of €20,000;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of Scomedica in excess of €20,000;
(viii) all Contracts with any material respect Governmental Authority to which either of the Company and its Subsidiaries from competing Companies is a party;
(ix) all Contracts that limit or purport to limit the ability of the Companies to compete in any line of business or with any Person or in any geographic region area or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee during any period of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Companytime;
(x) any employment or consulting Contract (in each case with respect Contracts to which the Company has continuing obligations as either of the date hereofCompanies is a party that provide for any joint venture, partnership or similar arrangement by the Companies;
(xi) all Contracts between or among either Scomedica on the one hand and Finesco or any Affiliate of Finesco (other than Scomedica) on the other hand;
(xii) all collective bargaining agreements or Contracts with any current (A) executive officer Union to which either of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000Companies is a party; and
(xixiii) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract is material to either of the type described in clauses (i) through (xi) is referred Companies and not previously disclosed pursuant to herein as a “Company Material Contract”this Section 4.09.
(b) Except for any Company Each Material Contract that has terminated or expired is, to the Warrantors’ Knowledge, valid and binding on either of the Companies in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect andeffect. None of the Companies or, to Warrantors’ Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default in any material respect by the Companies or, to the Knowledge of the CompanyWarrantors’ Knowledge, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contractthereto, is in violation of or in default under any provision Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of such Company Material Contractany right or obligation or the loss of any benefit thereunder. True Complete and complete correct copies of the Company each Material Contracts Contract (including all modifications, amendments and any material amendments supplements thereto and waivers thereunder) have been made available to Parent prior to the date of this AgreementBeneficiary.
Appears in 2 contracts
Sources: Stock Contribution Agreement, Stock Contribution Agreement (Apricus Biosciences, Inc.)
Material Contracts. (a) Section 4.21(a) 3.8 of the Company Disclosure Letter Schedules sets forth, as of the date of this Agreement, forth a correct and complete list of each the following Contracts, organized according to the relevant subsections of this Section 3.8 to which such Contracts are responsive (but any disclosure made in the Disclosure Schedules relating to any such subsection is considered as having been made with respect to such subsection and in response to the section under which it is disclosed), to which the Company is a party, by which the Company or any property of any thereof is subject, or by which the Company is otherwise bound (collectively, the “Material Contracts”) (other than the Employment Agreements set forth on Section 3.25(B) of the following types Disclosure Schedules, the Company Benefit Plans set forth on Section 3.26(A) of the Disclosure Schedules and the Insurance Policies set forth on Section 3.20 of the Disclosure Schedules) and under which the Company has any current, ongoing or future rights, liabilities or obligations:
(A) each Contract involving aggregate consideration in excess of $100,000 or requiring performance by any party more than one year from the date of this Agreement;
(B) all Contracts that relate to which the sale of any of the Company’s assets, other than purchase orders for the sale of inventory in the Ordinary Course, for consideration more than $50,000;
(C) all Contracts that relate to acquiring any business, Equity Securities of any other Person or any real property (whether by merger, sale of Equity Securities, sale of assets or otherwise);
(D) all agreements between or among the Company on the one hand and Sellers or any Affiliate of Sellers (other than the Company) on the other hand; and
(E) all bonds, debentures, notes, loans, credit or loan Contracts or loan commitments, mortgages, indentures, guarantees or other Contracts relating to Indebtedness, the borrowing of money or binding upon any properties or assets (real, personal or mixed, tangible or intangible) of the Company;
(F) all leases or licenses involving any properties or assets (whether real, personal or mixed, tangible or intangible);
(G) all Contracts that (1) limit or restrict the Company or any of its Subsidiaries is respective officers, managers or employees (in their capacity as such) from engaging in any business or other activity on behalf of the Company in any jurisdiction, (2) create or purport to create any exclusive or preferential relationship or arrangement, (3) otherwise restrict or limit the ability of the Company to operate or expand the Business, (4) limit the freedom of the Company to solicit, hire, or employ any Person, or (5) contain a party or by which any of their respective properties or assets is bound:“most favored nation” provision.
(iH) each Contract that all confidentiality Contracts (A) limits or restricts in any material respect other than those relating to the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, offer for sale solicitation under which the Company and its Subsidiaries, taken as a wholetransaction giving rise to this Agreement arose);
(iiI) each Contract that is a joint venture all Contracts providing for capital expenditures or partnership agreement that is material to the acquisition or construction of fixed assets requiring the payment by the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,00050,000;
(ivJ) each Contract with respect to all Contracts that provide for an interestincreased payment or benefit, rateor accelerated vesting, currency upon the execution hereof, or other swap the Closing, or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful transactions contemplated in the conduct of business of the Company or its Subsidiariesthis Agreement;
(viK) each Contract pursuant to which the Company all Contracts granting any Person an Encumbrance on all or any part of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 any asset, other than purchase money security interests incurred in the aggregateOrdinary Course;
(viiL) each “material contract” (as such term is defined all Contracts for the cleanup, abatement or other actions in Item 601(b)(10) connection with any Hazardous Materials, the remediation of Regulation S-K under any existing Environmental condition or relating to the Securities Act), whether performance of any Environmental audit or not filed by the Company with the SECstudy;
(viiiM) all Contracts granting to any Contract governing a Related Party Transaction (as defined below);
(ix) Person an Option or similar preferential right to purchase or acquire any registration rights agreements with respect to securities assets of the Company;
(xN) all Contracts with any employment agent, distributor or consulting Contract representative that is not terminable without penalty on thirty (in each case with respect 30) days’ or less notice;
(O) all 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;
(P) all Contracts and Licenses to which the Company has continuing obligations as of the date hereofis a party (i) with respect to Company Intellectual Property licensed or transferred to any current third party (Aother than non-exclusive end-user licenses for Software in object code format granted in the Ordinary Course), (ii) executive officer pursuant to which a third party has licensed or transferred any Company Intellectual Property to the Company, or (iii) pursuant to which use, commercial exploitation, assignability or enforcement of any Company Intellectual Property owned by the Company is limited, restricted or prohibited, including territorial restrictions, field of use limitations, covenants not to ▇▇▇ and non-competition restrictions;
(Q) all joint venture or partnership Contracts and all other Contracts providing for the sharing of any revenue or profits earned by the Business or the Company;
(R) all customer Contracts (excluding work orders and purchase orders individually, including purchase orders for the sale of inventory in the Ordinary Course) for the provision of goods or services by the Company;
(S) all supply Contracts (excluding work orders and purchase orders individually, including purchase orders for the sale of inventory in the Ordinary Course, requiring the Company to spend an amount less than $50,000) for the provision of goods or services for the Company;
(T) all outstanding powers of attorney empowering any Person to act on behalf of the Company, ;
(BU) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000any Government Contract; and
(xiV) any all existing Contracts (other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type than those described in clauses subsections (ia) through (xir) is referred to herein as a “Company Material Contract”.
(bof this Section 3.8) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, are material to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True Correct and complete copies of the Company all Material Contracts and any material amendments thereto have been made available to Parent prior Buyer. In the case of any oral Contracts, Section 3.8 of the Disclosure Schedules identifies the oral agreement and the material terms thereof. The Material Contracts are legal, valid, binding and enforceable in accordance with their respective terms with respect to the date Company, as applicable, and, to Sellers’ Knowledge, each other Person party to such Material Contracts, subject to applicable bankruptcy, insolvency and other similar Laws affecting the enforceability of creditors’ rights generally, general equitable principles and the discretion of courts in granting equitable remedies. There is no existing default, violation or breach of the Company under any Material Contract (or event or condition that, with notice or lapse of time or both could constitute a default or breach) and, to Sellers’ Knowledge, there is no such default (or event or condition that, with notice or lapse of time or both, could constitute a default or breach) with respect to any third party to any Material Contract. The Company is not participating in any discussions or negotiations regarding a material modification of or amendment to any Material Contract or entry in any new Contract applicable to the Company or the real or personal property of the Company that would be a Material Contract. Each respective subsection of Section 3.8 of the Disclosure Schedules identifies with an asterisk each Material Contract set forth therein that requires the consent of or notice to the other Person party thereto to avoid any breach, default or violation of such Contract in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (McBc Holdings, Inc.), Membership Interest Purchase Agreement
Material Contracts. (a) Section 4.21(a) of Except for this Agreement and the Contracts filed as exhibits to the Company Disclosure Letter sets forth, SEC Documents that are available as of the date of this Agreement, Section 4.21(a) of the Company Disclosure Schedule contains a complete and correct and complete list of each of the following types of Material Contracts to which the Company or any of its Subsidiaries is a party or by which any of bind their respective properties or assets is boundassets:
(i) each Contract that (A) limits Contracts between the Company or restricts in any material respect of its Subsidiaries and any of the twenty largest customers of the Company and its Subsidiaries (determined on the basis of aggregate revenues recognized by the Company and its Subsidiaries over the four consecutive fiscal quarter periods ended June 30, 2014);
(ii) except for the Contracts disclosed in clause (i) above, each Contract that involves performance of services or delivery of goods, products or developmental, consulting or other service commitments by the Company or any of its Subsidiaries, providing for either (i) recurring annual payments to the Company after the date hereof of $400,000 or more or (ii) aggregate payments or potential aggregate payments to the Company after the date hereof of $2,000,000 or more;
(iii) Contracts between the Company or any of its Subsidiaries and any of (A) the ten (10) largest licensors of Intellectual Property to the Company or any of its Subsidiaries (determined on the basis of aggregate payments made or owed by the Company and its Subsidiaries over the four consecutive fiscal quarter period ended June 30, 2014), (B) the ten (10) largest suppliers (other than licensors), including any supplier of manufacturing, outsourcing or development services (determined on the basis of aggregate payments made or owed by the Company and its Subsidiaries over the four consecutive fiscal quarter period ended June 30, 2014), and (C) the ten largest distributors or resellers (including as an OEM or value-added reseller) of any of the Company Products or services provided by the Company or its Subsidiaries (determined on the basis of aggregate sales of Company Products made through such distributors or resellers over the four (4) consecutive fiscal quarter period ended June 30, 2014);
(iv) except for the Contracts disclosed in clause (iii) above, each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other service commitments to the Company or any of its Subsidiaries, or the payment therefor by the Company or any of its Subsidiaries, providing for either (i) recurring annual payments by the Company after the date hereof of $500,000 or more or (ii) aggregate payments or potential aggregate payments by the Company after the date hereof of $500,000 or more;
(v) Contracts that contain any provisions restricting the Company or any of its Affiliates or their successors from (i) competing or engaging in any activity or line of business or with any Person or in any geographic region area or pursuant to which any benefit or right is required to be given or lost as a result of so competing or engaging, or which would have any such effect after the Closing or (ii) hiring or soliciting for hire the employees or contractors of any Third Party;
(vi) Contracts that (i) grant any exclusive rights to any Third Party, including any exclusive license or supply or distribution agreement or other exclusive rights, (ii) grants any rights of first refusal, rights of first negotiation or similar rights with respect to any product, service or Company Owned IP, (iii) contains any provision that requires the purchase of all or any portion of the Company’s or any of its Subsidiaries’ requirements from any Third Party, or any other similar provision, (iv) grants “most favored nation” or similar rights, (v) contains pricing commitments with respect to future purchases by any Third Party of Company Products or services that extend for more than six months from the effective date of such Contract, or (vi) obligates the Company or its Subsidiaries to provide maintenance and/or support with respect to any discontinued product or any prior version of any Company Product for more than six months following the release of a replacement product or new version of a Company Product, as applicable;
(vii) Contracts pursuant to which the Company or any of its Subsidiaries has agreed or is required to provide any Third Party with rights in or access to source code (including on a contingent basis), or to provide for source code to be put in escrow, indicating for each Contract providing for source code escrow whether such Contract includes use rights upon release that would permit any Third Party to utilize any source code of the Company or any of its Subsidiaries other than for the limited purpose of maintaining and supporting such Third Party’s internal use of one or more Company Products pursuant to an end user license agreement;
(viii) Contracts pursuant to which the Company or any of its Subsidiaries has or has been granted any license to Intellectual Property, other than nonexclusive licenses granted in the ordinary course of business of the Company and its Subsidiaries consistent with past practice and commercially available off-the-shelf computer software licensed pursuant to shrink-wrap or click-wrap licenses that is not material to the business;
(ix) Contracts relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $500,000 and which may be prepaid on not more than 30 days’ notice without the payment of any penalty;
(x) Contracts pursuant to which the Company or any of its Subsidiaries is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices);
(xi) Contracts under which the Company or any of its Subsidiaries has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries) and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business;
(xii) Contracts under which the Company or any of its Subsidiaries has any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of all or any portion of any business (whether by merger, sale of stock, sale of assets or otherwise) for consideration in excess of $1,000,000;
(xiii) any Contract (i) (A) between the Company or any of its Subsidiaries and any Governmental Authority, or (B) contains exclusivity obligations between the Company or restrictions binding onany of its Subsidiaries, as a subcontractor, and any prime contractor to any Governmental Authority, or (ii) financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurement;
(xiv) partnership, joint venture or other similar Contracts or arrangements material to, to the Company and its Subsidiaries, taken as a whole;
(iixv) each Contract that is a joint venture Contracts for the development, for the benefit of the Company or partnership agreement any of its Subsidiaries, by any party other than the Company or its Subsidiaries, of Third Party Software or Intellectual Property that is material to the Company and its Subsidiaries, taken as a whole;
(iiixvi) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture employee collective bargaining agreements or other binding commitment Contracts with any labor union and each employment Contract (other than letters of credit and those between for employment at-will or similar arrangements) that are not terminable by the Company without notice and its wholly owned Subsidiaries) relating without cost to indebtedness for borrowed money in an amount in excess of $1,000,000the Company;
(ivxvii) each Contract Contracts entered into in the last three (3) years in connection with the settlement or other resolution of any action or proceeding that has any continuing material obligations, liabilities or restrictions or involved payment of more than $250,000;
(xviii) Contracts providing for indemnification of any Person (i) with respect to an interestmaterial liabilities relating to any current or former business of the Company, rate, currency any of its Subsidiaries or other swap or derivative transaction (any predecessor Person other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets indemnification obligations of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the provisions of a Contract entered into by the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregateordinary course of business consistent with past practice, or (ii) with respect to claims involving infringement or misappropriation of any Intellectual Property rights of any Third Party, which Contract does not provide the Company or its Subsidiaries with the right to (A) assume control of the defense and settlement of any such claim, (B) require the indemnified Person to implement a non-infringing substitute provided by the Company or its Subsidiaries for any Company Product that is the subject of any such claim and (C) terminate the indemnified Person’s right to use any Company Product that is the subject of any such claim if the Company or its Subsidiaries is unable to provide a non-infringing substitute or otherwise a▇▇▇▇ the infringement or alleged infringement;
(viixix) Contracts containing (i) any provisions having the effect of providing that the consummation of the Merger or the other transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement will conflict with, result in any violation or breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract (if such Contract is material to the Company and its Subsidiaries, taken as a whole), or give rise under such Contract to any right of, or result in, a termination, right of first refusal, amendment, revocation, cancellation or acceleration, or a loss of a benefit or the creation of any Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to any increased, guaranteed, accelerated or additional rights or entitlements of any person, except to the extent that such termination, amendment, revocation, cancellation, acceleration, loss, Lien or entitlements are not material to the Company and its Subsidiaries, taken as a whole, or are required by Applicable Law, (ii) any restriction on the ability of any of the Company and its Subsidiaries to assign all or any portion of its rights, interests or obligations thereunder (if such Contract is material to the Company and its Subsidiaries, taken as a whole), unless such restriction expressly excludes any assignment to Parent and any of its Subsidiaries that holds assets substantially equivalent to the assigning entity in connection with or following the consummation of the Merger and the other transactions contemplated by this Agreement or (iii) any standstill or similar provision purporting to limit the authority of any party to such agreement to acquire any equity interest in the Company or any other Person; or
(xx) except for the Contracts disclosed above, each “material contract” (as such term is defined in Contract required to be filed by the Company pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that is otherwise material to the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (eachSubsidiaries, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein taken as a “Company Material Contract”whole.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectEffect on the Company, each Company Material Contract disclosed in Section 4.21(a) of the Company Disclosure Schedule, required to be disclosed pursuant to this Section 4.21 or which would have been required to be so disclosed if it had existed on the date of this Agreement (each, a “Material Contract”) (unless it has terminated or expired (in each case according to its terms)) is valid and binding and in full force and effect and is a legal, valid and binding agreement of the Company or its Subsidiary, as the case may be, and, to the Knowledge knowledge of the Company, of each other party thereto, enforceable against the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, against the other party or parties thereto thereto, in each case, in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity. Neither the Company nor any of its Subsidiaries has received any notice to terminate, in whole or part, materially amend or not renew any executory obligation of a counterparty to a Material Contract that has not terminated or expired (in each case according to its terms, subject ) prior to the Enforceability Exceptionsdate of this Agreement (nor has there been anything that a reasonable person would consider an indication that any such notice of termination will be served on or after the date of this Agreement on the Company by any counterparty to a Material Contract). Except for breaches, violations or defaults which have not had, and as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectEffect on the Company, neither none of the Company nor Company, any of its SubsidiariesSubsidiaries or, nor to the Knowledge knowledge of the Company Company, any other party to a Company thereto is in default or breach in any material respect under the terms of any Material Contract, is in violation and, to the knowledge of the Company, no event or in circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default under any provision thereunder.
(c) Complete, correct and unredacted copies of such Company each Material Contract. True , as amended and complete copies of supplemented, have been delivered by the Company Material Contracts and any material amendments thereto have been to Parent, or otherwise made available to Parent prior as an exhibit to the date of this AgreementCompany SEC Documents, by the Company to Parent.
Appears in 2 contracts
Sources: Merger Agreement (ChyronHego Corp), Merger Agreement (ChyronHego Corp)
Material Contracts. (a) Section 4.21(a5.11(a) of the Company CGI Disclosure Letter Schedule sets forth, as of the date of this Agreement, forth a correct and complete list of each of currently effective Contract to the following types of Contracts extent relating to the Purchased Assets or the BioPharma Business and to which the Company or any of its Subsidiaries CGI is a party or by which any of their respective properties it or its assets is bound:are bound (each, a “BP Material Contract”):
(i) each Contract that the top ten (A10) limits Contracts as measured in terms of aggregate annual obligations of CGI in the last year, for the purchase of materials, supplies, goods, services, equipment or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or other assets (B) contains exclusivity obligations or restrictions binding on, and material tocollectively, the Company and its Subsidiaries, taken as a whole“Top Suppliers”);
(ii) each Contract that is a joint venture the top ten (10) Contracts as measured in terms of aggregate annual revenue earned by CGI in the last year for the sale of materials, supplies, goods, services, equipment or partnership agreement that is material to other assets (collectively, the Company and its Subsidiaries, taken as a whole“Top Customers”);
(iii) each Contract (i) any pledge, security agreement, deed of trust or other Contracts that is a loanimpose an Encumbrance on any of the Purchased Assets, guarantee of indebtedness (ii) loan or credit agreement, noteindenture, bonddebenture, mortgage, indenture note or other binding commitment (other than letters of credit and Contracts that create, incur or guarantee any Indebtedness secured by the Purchased Assets, except for those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess less than $100,000, or (iii) Contracts under which CGI assumes, or otherwise becomes liable for, the obligations of $1,000,000any other Person;
(iv) each Contract with respect that relates to an interestany partnership, ratejoint venture, currency strategic alliance or other swap or derivative transaction (other than those between similar Contract affecting the Company and its Subsidiaries) with a fair value in excess of $1,000,000BioPharma Business;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which by its terms limits in any material respect (Ai) the Company reasonably expects localities, market or business in which all or any significant portion of the BioPharma Business, following the consummation of the transactions contemplated hereby is or would be conducted, (ii) the Persons CGI, may hire (other than Contracts with contract research organizations or other contractors or vendors that it is required provide services to pay total consideration CGI in the ordinary course of CGI’s business and that contain provisions that prevent CGI from soliciting or hiring any personnel of such contract research organizations or such other contractors or vendors), (including assumption of debtiii) after the date of this Agreement Persons to be in excess of $1,000,000 whom CGI may sell products or deliver services, or (Biv) any other Person has the right to acquire any assets scope of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its SubsidiariesBioPharma Business;
(vi) each Contract providing for the grant by or to CGI of any license to or under any Intellectual Property used in the BioPharma Business, other than (i) Contracts where the grant by or to CGI of any such license pursuant to which such Contract is not material to CGI or the Company BioPharma Business, (ii) Contracts where the Intellectual Property licensed thereunder are licensed on a non-exclusive basis by or any to a contractor, service provider or collaborator of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 CGI in the aggregatecontext of such contractor, service provider or collaborator rendering research and development services to CGI or for the benefit of CGI, and (iii) Contracts where the Intellectual Property material to the BioPharma Business licensed thereunder are licensed on a non-exclusive basis for research and the scope of the license to such Intellectual Property does not include the right to practice or use such Intellectual Property to sell or commercialize any product;
(vii) each “containing any grant by CGI to any Person of any express license to market or commercialize any product material contract” to the BioPharma Business, including under any Patents (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Actincluding any covenants not to s▇▇), whether or not filed by the Company with the SEC;
(viii) containing any Contract governing royalty, dividend or similar arrangement with respect to a Related Party Transaction (as defined below)product material to the BioPharma Business based on the revenues or profits of CGI;
(ix) with any registration rights agreements Governmental Authority or a subcontractor to any Governmental Authority in connection with respect to securities of the Companysuch BP Material Contract;
(x) any employment agreement that gives rise to any material payment or consulting Contract (in each case with respect to which the Company has continuing obligations benefit as a result of the date hereof) with performance of this Agreement or any current (A) executive officer of the Company, other transaction contemplated hereby;
(Bxi) member relating to the acquisition or disposition of the Company Boardany material interest in, or any material amount of, property or assets of CGI or any other Person, or for the grant to any Person of any preferential rights to purchase any such property or assets;
(Cxii) Company Employee providing for an annual base salary any other agreement (or group of related agreements) the performance of which requires aggregate payments to or from CGI in excess of $250,000100,000;
(xiii) establishing powers of attorney or agency agreements;
(xiv) all real property Leases used by the BioPharma Business;
(xv) any agreement for the leasing of equipment used in the BioPharma Business; and
(xixvi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”than as set forth elsewhere in Section 5.11(a) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described CGI Disclosure Schedule, and excluding confidentiality and non-disclosure agreements entered into in clauses (i) through (xi) is referred connection with a sale process, all other Contracts that are material to herein as a “Company Material Contract”the BioPharma Business of CGI and commitments or agreements to enter into any of the foregoing.
(b) Except for CGI has delivered or made available accurate and complete copies of all BP Material Contracts, including all amendments thereto. There are no BP Material Contracts that are not in written form. Other than payment defaults with respect to the Old Accounts Payable, CGI has not, nor to CGI’s Knowledge, has any Company other party to a BP Material Contract materially breached, violated or defaulted under, or received notice that it has terminated materially breached, violated or expired in accordance with its defaulted under, any of the terms and except as has not had, and would not reasonably be expected or conditions of any BP Material Contract. As to have, individually or in the aggregate, a Company Material Adverse EffectCGI, each Company BP Material Contract is valid and binding valid, binding, enforceable and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its termseffect, subject to the Enforceability Bankruptcy Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge The consummation of the Company transactions contemplated hereby will not (either alone or upon the occurrence of additional acts or events) result in any other party material payment or payments becoming due from CGI or the Seller to a Company Material Contract, is in violation of or in default any Person under any provision BP Material Contract or give any Person the right to terminate or alter the provisions of such Company any BP Material Contract. True No Person is renegotiating any material amount paid or payable to CGI under any BP Material Contract or any other material term or provision of any BP Material Contract. No Person is renegotiating any material amount paid or payable to CGI under any BP Material Contract or any other material term or provision of any BP Material Contract. For purposes of this Section 5.11(b) (other than the first sentence), “BP Material Contract” shall be deemed to include the Assumed BP Material Contracts, the Equipment Leases and complete copies the Undisclosed BP Material Contracts.
(c) The Top Customers collectively represent approximately fifty percent (50%) of the Company Material revenues the BioPharma Business received in the twelve (12) months ending December 31, 2018.
(d) The Top Suppliers collectively represent approximately sixty-nine percent (69%) of the spend the BioPharma Business incurred in the twelve (12) months ending December 31, 2018.
(e) Other than the Equipment Leases, there are no Contracts or equipment which are used, or held for use, by or service both the BioPharma Business and any material amendments thereto have been made available to Parent prior to the date of this Agreementone or more Other Business Unit.
Appears in 2 contracts
Sources: Secured Creditor Asset Purchase Agreement (Interpace Diagnostics Group, Inc.), Secured Creditor Asset Purchase Agreement (Cancer Genetics, Inc)
Material Contracts. (a) Subsections (i) through (xii) of Section 4.21(a5.17(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, Schedule contain a correct and complete list of the following contracts and agreements, whether written or oral, to which the Company or any Subsidiary is a party (such contracts and agreements, together with the Plans, the Leases and the Company Permits, being "Material Contracts"):
(i) each contract, agreement or account involving aggregate annual consideration payable to the Company for services of more than $1,000,000, or aggregate annual payments by the Company of more than $1,000,000;
(ii) all contracts and agreements under which the Company or any Subsidiary provides services other than routine or reference testing services, such as laboratory management, laboratory directorship, consulting or information technology;
(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 Subsidiary is a party;
(iv) all contracts and agreements relating to indebtedness with a principal amount in excess of $500,000 or any pledge of any asset of the Company or any Subsidiary (other than capitalized leases involving less than $500,000 in principal amount and other than the Company's senior credit facility);
(v) all management contracts (excluding contracts for employment) and contracts with other consultants, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Subsidiary or income or revenues related to any product of the Company or any Subsidiary to which the Company or any Subsidiary is a party;
(vi) all contracts and agreements with any Governmental Authority other than agreements related to the provision of clinical laboratory services to a Governmental Authority, provider agreements and agreements related to licensing of any facility entered into in the ordinary course of business;
(vii) all contracts and agreements that (A) limit or purport to limit the ability of the Company or any Subsidiary or, to the Company's knowledge, any key executives of the Company or any Subsidiary, to compete in any line of business or with any person or in any geographic area or during any period of time, (B) require the Company or any Subsidiary to use any supplier or third party for all or substantially all of the Company's or the Subsidiaries' requirements or needs, (C) limit or purport to limit in any material respect the ability of the Company or any Subsidiary to solicit any customers or clients of the other parties thereto, (D) require the Company or any Subsidiary to provide to the other parties thereto "most favored nations" pricing, or (E) require the Company or any Subsidiary to market or co-market any clinical laboratory services or anatomic pathology services or other products or services of a third party (each of (A) through (E), a "Restrictive Agreement");
(viii) all contracts, agreements and arrangements between the following types Company or any of Contracts to which its Subsidiaries, on the one hand, and LP, LLC or any of their respective officers, directors or principals, on the other hand (each such contract, a "Related Party Agreement");
(ix) all joint venture contracts, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any Subsidiary with any third party;
(x) all licenses under CLIA or issued by any other Governmental Authority including, without limitation, the identity of the respective licensees thereunder;
(xi) all contracts, agreements and arrangements entered into since November 1993 between the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has party providing for the right to acquire any assets of acquisition by the Company or such Subsidiary (including, without limitation, by merger, consolidation, acquisition of stock or assets or any other business combination) of its Subsidiaries after the date any corporation, partnership, other business organization or division thereof or any material amount of this Agreement with a fair market value or purchase price of more than $1,000,000, excludingassets, in each case, for an aggregate purchase price in excess of $100,000 (xprovided that Section 5.17(a)(xi) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company Disclosure Schedule shall also identify the amounts, if any, that are payable or its Subsidiaries;potentially payable to any other party under such contracts, agreements and arrangements pursuant to any post-closing adjustment to the purchase price (including without limitation under any "earn-out" or other similar provision)); and
(vixii) each Contract pursuant all other contracts and agreements, whether or not made in the ordinary course of business, which are material to which the Company or any Subsidiary, the conduct of its Subsidiaries has continuing “earn-out” their respective businesses, or similar obligations that could result in payments in excess the absence of $1,000,000 in which would prevent or materially delay consummation of the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether Merger or not filed by otherwise prevent or materially delay the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing from performing its obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it this Agreement and would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Unilab Corp /De/)
Material Contracts. (a) Section 4.21(aSubsections (i) through (xi) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete Section 3.19(a) list of each of the following types of Contracts contracts and agreements to which the Company or any of its Subsidiaries Subsidiary is a party or by which any (the “Company Material Contracts,” it being agreed that such contracts and agreements are not required to be set forth in Section 3.19(a) of their respective properties or assets is bound:the Company Disclosure Schedule unless expressly so indicated in the applicable subsection below):
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Act), whether SEC) with respect to the Company and its Subsidiaries;
(ii) each contract and agreement which is likely to involve payment or not filed receipt to or by the Company or any of its Subsidiaries of consideration of more than $100 million, in the aggregate, over the remaining term of such contract or agreement;
(iii) all material joint venture contracts or material partnership arrangements (and all of such contracts and agreements are set forth in Section 3.19(a)(iii) of the Disclosure Schedule and have been provided to Parent prior to the date hereof);
(iv) other than contracts and agreements referred to in clause (a)(i), all contracts and agreements evidencing indebtedness involving principal amount in excess of $100 million;
(v) all contracts and agreements that limit, or purport to limit, the ability of the Company or any Subsidiary of the Company to compete in any line of business or with any person or entity or in any geographic area or during any period of time (and all of such contracts and agreements are set forth in Section 3.19(a)(v) of the SECDisclosure Schedule and have been provided to Parent prior to the date hereof);
(vi) all material contracts and agreements concerning Intellectual Property or IT Assets to which the Company or any of its Subsidiaries is a party or beneficiary or by which the Company or any of its Subsidiaries, or any of its properties or assets, may be bound, including all (A) licenses of Intellectual Property by the Company or any of its Subsidiaries to any person, (B) licenses of Intellectual Property by any person to the Company or any of its Subsidiaries, and (C) contracts and agreements between any person and the Company or any of its Subsidiaries relating to the transfer, development, maintenance or use of Intellectual Property or IT Assets other than, in each case, licenses of Off-the-Shelf Software licensed pursuant to shrink-wrap or click-wrap agreements (all of the foregoing, collectively, the “Company IP Agreements”). For purposes hereof, “Off-the-Shelf Software” shall mean all software used or held for use by the Company or any of its Subsidiaries that is commercially available off-the-shelf software that (x) is not material to the Company or any of its Subsidiaries, (y) has not been modified or customized for the Company or any of its Subsidiaries, and (z) is licensed to the Company or any of its Subsidiaries for a one-time or annual fee of $250,000 or less;
(vii) all contracts and agreements or interest rate, currency or commodities hedging agreements, in each case in connection with which the aggregate actual or contingent obligations of the Company and its Subsidiaries under such contract are greater than $20 million;
(viii) any Contract governing a Related Party Transaction all contracts and agreements entered into after December 31, 2005 or not yet consummated, in each case for the acquisition or disposition, directly or indirectly (as defined belowby merger, consolidation, combination or amalgamation), of assets (other than assets purchased pursuant to capital expenditures) or capital stock or other equity interests of another person for aggregate consideration under such contract in excess of $50 million;
(ix) all contracts and agreements between or among the Company or any registration rights of its Subsidiaries, on the one hand, and any of their respective affiliates (other than the Company or any of its Subsidiaries or non-controlled joint ventures), on the other hand, that involve payments of more than $2.5 million in any one year, other than any contracts and agreements with respect required to securities be listed in Section 3.9 of the CompanyDisclosure Schedule or otherwise relating to compensation or employee benefits;
(x) any employment or consulting Contract (in each case with respect all contracts and agreements relating to which the Company has continuing obligations as leases of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary railcars and other rolling stock involving consideration in excess of $250,00010 million on an annual basis; and
(xi) any all other Contract contracts and agreements, whether or series not made in the ordinary course of related Contracts under business, which it would reasonably be expected that are material to the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (eachSubsidiaries, taken as a “Revenue Contract”) or make annual payments of $5,000,000 or morewhole, in each case, during any twelve (12) month period or the remaining period conduct of such Contracttheir respective businesses, if shorter. Each Contract or the absence of which would, individually or in the type described in clauses (i) through (xi) is referred to herein as aggregate, have a “Company Material Contract”Adverse Effect.
(b) Except for Neither the Company nor any Subsidiary of the Company has received written notice of any claim of default under or cancellation of any Company Material Contract that and neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such claim of default, cancellation, breach or default has terminated or expired in accordance with its terms and except as has not had, and or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the knowledge of the Company, each as of the date hereof, no other party to any Company Material Contract is valid and binding and in full force and effect and, to breach of or default under the Knowledge terms of the Company, enforceable against the other party any Company Material Contract where such breach or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not default has had, and or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the . Each Company nor any of its Subsidiaries, nor to the Knowledge Material Contract is a valid and binding obligation of the Company any or the Subsidiary of the Company which is party thereto and, to the knowledge of the Company, of each other party to a Company Material Contractthereto, and is in violation full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of or in default under specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any provision of such proceeding therefor may be brought. The Company Material Contract. True shall make available to Parent true and complete copies of the all Company Material Contracts and (other than any material of the contracts described in subclause (xi) of this Section 3.19), including any amendments thereto have been made available to Parent prior to thereto, as promptly as practicable following the date of this Agreementhereof, and in any event within 30 days after the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Dow Chemical Co /De/), Merger Agreement (Rohm & Haas Co)
Material Contracts. (a) Section 4.21(a3.16(a) of the Company Disclosure Letter Schedule sets forthforth a complete and correct list, as of the date of this Agreementhereof, a correct and complete list of each of the following types Contracts (other than any Company Benefit Plans and excluding purchase orders, statements of Contracts work and similar commercial documents issued in the ordinary course of business under and not amending the applicable Contract) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties assets or assets is bound:businesses are bound (and any material amendments, supplements and modifications thereto):
(i) each Contract Contracts that (or, together with additional related Contracts with the same Person or its affiliates) (A) limits or restricts in any material respect are expected to involve the payment of amounts by the Company and or any of its Subsidiaries from competing in any line North America of business with any Person more than $10,000,000 in any geographic region or the aggregate for fiscal year 2024 and (B) contains exclusivity obligations or restrictions binding on, and material to, are expected to involve the receipt of amounts by the Company and or any of its Subsidiaries, taken as a wholeSubsidiaries of more than $10,000,000 in the aggregate for fiscal year 2024;
(ii) each Contract that is Contracts concerning the establishment or operation of a partnership, joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a wholelimited liability company;
(iii) each Contract that is Contracts pursuant to which the Company or any of its Subsidiaries licenses (A) from a loanthird party material Intellectual Property, guarantee of indebtedness other than licenses (1) for shrink-wrap, click-wrap or credit agreement, note, bond, mortgage, indenture off-the shelf software or other binding commitment generally commercially available software, (2) pursuant to stock, boilerplate, or other generally non-negotiable terms, such as, for example, website and mobile application terms and conditions or terms of use, stock photography licenses, and similar Contracts, or (3) that are implied by or incidental to the sale or purchase of products or services in the ordinary course of business, or (B) to a third party Company Owned Intellectual Property, other than letters non-exclusive licenses (1) granted in the ordinary course of credit business or (2) that are implied by or incidental to the sale or purchase of products or services in the ordinary course of business, in the case of each of clause (A) and those between clause (B), to the Company and its wholly owned Subsidiariesextent any such Contract exceeds $1,000,000 of expense per year (in the case of clause (A)) relating to indebtedness for borrowed money or revenue per year (in an amount in excess the case of $1,000,000clause (B));
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets lease agreements of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, that pertain to (x1) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business incinerator sites or (y2) any parcel of supplies, inventory, products, equipment, properties Company Leased Real Property for which the annual rent exceeds $1,000,000 individually (other than incinerator sites) or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business (B) master vehicle lease agreements of the Company or any of its SubsidiariesSubsidiaries for which annual leasing costs exceed $5,000,000 (each, a “Company Lease Agreement”);
(v) Contracts containing a covenant materially restricting the ability of the Company or any of its Subsidiaries to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers;
(vi) each Contract indentures, credit agreements, loan agreements and similar instruments pursuant to which the Company or any of its Subsidiaries has or will incur or assume any indebtedness for borrowed money or has or will guarantee or otherwise become liable for any indebtedness of any other Person for borrowed money in excess of $500,000;
(vii) Contracts that (A) prohibit or restrict the payment of dividends or other distribution of assets by any of the Company or its Subsidiaries, (B) prohibit or restrict the issuance of guarantees by the Company or any of its Subsidiaries, or (C) limit the ability of the Company or any of its Subsidiaries or affiliates to sell, transfer, pledge or otherwise dispose of any assets or businesses;
(viii) Contracts under which there has been imposed a Lien (other than a Permitted Lien) on any of the material assets, tangible or intangible, of the Company;
(ix) Contracts that provide for the acquisition or disposition, directly or indirectly (by merger or otherwise) of assets (including properties) or capital stock (other than acquisitions or dispositions of inventory and raw materials and supplies in the ordinary course of business) (A) for aggregate consideration under such Contract in excess of $5,000,000 or (B) pursuant to which the Company or its Subsidiaries has continuing material “earn-out” or other similar contingent payment obligations or any material indemnification obligations (other than with respect to customary representations and warranties with customary survival periods) that could result in the receipt or making by the Company or any of its Subsidiaries of future payments in excess of $1,000,000;
(x) is a Franchise Agreement;
(xi) Contracts that contain or include (A) any “most favored nation” or most favored customer provision or rights of first or last offer, negotiation or refusal, (B) “take or pay” requirements, volume requirements or commitments, exclusive purchasing arrangements obligating a Person to obtain a minimum quantity of goods or services from another Person, or (C) a put or call right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any assets or any equity interests of any Person;
(xii) Contracts that are (A) license or royalty Contracts (other than Contracts relating to Intellectual Property or licenses that are implied by or incidental to the sale or purchase of products or services in the ordinary course of business) or (B) merchandising, sales representative, franchisee or distribution Contracts, involving the payment or receipt over the life of such Contract in excess of $1,000,000 by the Company or any of its Subsidiaries;
(xiii) Any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, that (A) could result in the receipt or making by the Company or any of its Subsidiaries of future payments in excess of $1,000,000 in or (B) has a remaining duration of three years or more from the aggregatedate hereof;
(viixiv) other than employment or service Contracts entered into in the ordinary course of business, (A) any Indemnification Agreement with any current director or executive officer of the Company or (B) any Contracts with (1) any beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of 5% or more of any class of securities of the Company or any of its Subsidiaries, (2) any affiliate (other than a wholly-owned Retained Subsidiary of the Company) or “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the foregoing, including any stockholders agreement, investors’ rights agreement, registration rights agreement, voting agreement, tax receivable agreement or similar or related Contracts or (3) any director or officer of the Company or any of its Subsidiaries, in each case, that is required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act;
(xv) material Contracts that contain standstill or similar agreements that are reasonably expected to be in effect as of the Closing, pursuant to which the Company or any of its Subsidiaries has agreed to not acquire assets or securities of another Person (excluding, for purposes hereof, any confidentiality agreements contemplating a potential acquisition (by merger, consolidation, acquisition or otherwise) of another Person or business which contains a standstill or similar agreement);
(xvi) Contracts under which the Company or any of its Subsidiaries has, directly or indirectly, any obligations to make a capital contribution to, or other investment in, any Person outside the ordinary course of business in excess of $2,000,000 (other than the Company or any of its wholly-owned Retained Subsidiaries);
(xvii) Contracts with any Governmental Entity in excess of $2,000,000 of revenue per year;
(xviii) Contracts that reflect the settlement of any Proceeding individually in excess of $1,500,000 and under which there are material outstanding compliance obligations of the Company or any of its Subsidiaries; or
(xix) any Contract not otherwise described in any other subsection of this Section 3.16(a) that would be required to be filed by the Company as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities ActSEC), whether .
(b) A complete and correct copy of each Contract listed or not filed by required to be listed in Section 3.16(a) of the Company Disclosure Schedule or required to be filed as exhibits to the Company SEC Documents (such Contracts, together with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations or any of its Subsidiaries becomes a party or by which it becomes bound after the date hereof that would be required to be listed in Section 3.16(a) of the Company Disclosure Schedule if in effect as of the date hereof) with any current (A) executive officer of , the Company, (B) member of the “Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company Material Contracts” and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) has been made available, to the extent in the possession of the Company’s knowledge parties after due inquiry of their direct reports, to Parent or publicly filed with the SEC prior to the date hereof. Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each (i) all Company Material Contract is valid and Contracts are valid, binding and in full force and effect and are enforceable by the Company or the applicable Subsidiary in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) the Company or the applicable Subsidiary has performed all obligations required to be performed by it under the Company Material Contracts, and it is not (with or without notice or lapse of time, or both) in breach or default thereunder and, to the Knowledge of the Company, enforceable against the no other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a any Company Material Adverse EffectContract is (with or without notice or lapse of time, or both) in breach or default thereunder and (iii) since the Applicable Date, neither the Company nor any of its SubsidiariesSubsidiaries has received written notice of any actual, nor alleged, possible or potential violation of, or failure to the Knowledge comply with, any term or requirement of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Waste Management Inc), Agreement and Plan of Merger (Stericycle Inc)
Material Contracts. (ai) Section 4.21(a5.1(m) of the Company Disclosure Letter sets forthSchedule lists, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts contracts and agreements to which the Company or any of its Subsidiaries Company Subsidiary is a party or by which any of their respective properties or assets is bound:bound (such contracts and agreements as are required to be set forth on Section 5.1(m) of the Company Disclosure Schedule, but excluding any Plans, the “Material Contracts”):
(i) each Contract that (A) limits or restricts in any material respect each contract that would be required to be (A) filed by the Company and its Subsidiaries from competing in any line as a “material contract” pursuant to Item 601(b)(10) of business with any Person in any geographic region or Regulation S-K, (B) contains exclusivity obligations disclosed under Item 404 of Regulation S-K, or restrictions binding on, and material to, (C) disclosed by the Company and its Subsidiaries, taken as on a wholeCurrent Report on Form 8-K;
(iiB) each Contract that is a joint venture contract with Material Company Customers and Material Company Suppliers, excluding non-disclosure agreements, purchase orders, sales acknowledgment documents and similar documents entered into in the ordinary course of business;
(C) each contract with consideration paid or partnership agreement that is material payable by or to the Company or any of the Company Subsidiaries of more than $500,000, in the aggregate, over the 12-month period ending December 31, 2023 (other than the Material Contracts set forth in Section 5.1(m)(i)(C) of the Company Disclosure Schedule), excluding non-disclosure agreements, purchase orders, sales acknowledgement documents and its Subsidiaries, taken as a wholesimilar documents entered into in the ordinary course of business;
(iiiD) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment all (A) contracts with Company executive officers other than letters of credit the Plans and those between the Company and its wholly owned Subsidiaries(B) relating to Collective Bargaining Agreements;
(E) all contracts evidencing indebtedness for borrowed money in an amount in excess of greater than $1,000,000;
(iv) each Contract with respect to an interest500,000, rateand any pledge agreements, currency security agreements or other swap collateral agreements in which the Company or derivative transaction any Company Subsidiary granted to any person a security interest in or lien (other than those between a Permitted Lien) on any of the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement property or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any Company Subsidiary, and all agreements or instruments guarantying the debts or other obligations of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, any person (in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the than a Company or its SubsidiariesSubsidiary);
(viF) each Contract pursuant all partnership, joint venture or similar agreements;
(G) all contracts with any Governmental Authority to which the Company or any Company Subsidiary is a party, other than any Company Permits;
(H) all contracts that materially limit the ability of its Subsidiaries the Company or any Company Subsidiary to compete in any line of business or with any person or entity or in any geographic area or during any period of time, excluding customary third party license restrictions, confidentiality agreements and agreements that contain customary confidentiality clauses;
(I) all contracts that relate to a closed acquisition or disposition of any Person, business, assets (other than client lists) or real property (whether by merger, sale of stock, sale of assets or otherwise) and includes a deferred payment obligation of the Company or any Company Subsidiary that has continuing “earn-out” or similar obligations that could result not been satisfied in payments full in excess of $1,000,000 in the aggregate500,000;
(viiJ) each “material contract” all contracts that relate to a pending acquisition or disposition of any Person, business, assets or real property (as such term is defined whether by merger, sale of stock, sale of assets or otherwise) with an executed letter of intent or acquisition or disposition agreement and having an upfront purchase price in Item 601(b)(10) excess of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC$5,000,000;
(viiiK) any Contract governing all contracts involving the license, sale, or assignment of, or grant of a Related Party Transaction covenant not to sue under, material Company-Owned IP to a third party, other than (as defined below)w) non-exclusive licenses of Intellectual Property to customers, resellers and distributors entered into in the ordinary course of business, (x) non-disclosure agreements entered into the ordinary course of business, (y) non-exclusive licenses granted to vendors for the sole purpose of providing services to the Company, and (z) incidental non-exclusive trademark licenses granted solely for marketing or promotional purposes or rights to feedback, in each case, in the ordinary course of business consistent with past practice;
(ixL) any registration rights agreements with respect to securities of the Company;all Inbound License Agreements; and
(xM) any employment or consulting Contract (in each case with respect to all material contracts under which the Company has continuing obligations agreed to purchase goods or services from a vendor, Supplier or other person on a preferred supplier or “most favored supplier” basis.
(ii) (A) Each Material Contract is a legal, valid and binding obligation of the Company or the Company Subsidiaries and, to the Knowledge of the Company, the other parties thereto, and neither the Company nor any Company Subsidiary is in breach or violation of, or default under, any Material Contract; (B) to the Company’s Knowledge, as of the date hereof, no other party is in breach or violation of, or default under, or has received notice of termination of, any Material Contract; and (C) with as of the date hereof, the Company and the Company Subsidiaries have not received any current (A) executive officer written, or to the Knowledge of the Company, oral claim of default under any such Material Contract, except, in each of clauses (BA) member of the Company Board, or through (C) Company Employee providing ), for an annual base salary in excess of $250,000; and
(xi) any such conflicts, violations, breaches, defaults or other Contract or series of related Contracts under occurrences which it have not had, and would not reasonably be expected that to have, individually or in the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (eachaggregate, a “Revenue Contract”Material Adverse Effect. No party to a Material Contract has, as of the date hereof, given written notice of or, to the Knowledge of the Company, threatened (x) any potential exercise of termination rights with respect to any Material Contract or make annual payments (y) any non-renewal or modification of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Material Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each . The Company Material Contract is valid and binding and has furnished or made available in full force and effect and, all material respects to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True Parent true and complete copies of the Company all Material Contracts and Contracts, including any material amendments thereto have been made available to Parent prior to that are material in nature.
(iii) From the Applicable Date through the date of this Agreement, no Default or Event of Default has occurred and is continuing under the Company Credit Agreement or the Convertible Notes.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Vacasa, Inc.), Agreement and Plan of Merger (Vacasa, Inc.)
Material Contracts. (a) Section 4.21(a3.09(a) of the Disclosure Schedules lists each of the following contracts and other agreements, whether written or oral, to which the Company Disclosure Letter sets forthis a party (collectively, including any Leases, the “Material Contracts”):
(i) each agreement involving aggregate consideration in excess of $10,000 and either (x) requiring performance by any party more than one year from the date hereof or (y) which cannot be cancelled by Seller or the Company, as applicable, without more than 30 days’ notice;
(ii) all agreements that relate to the acquisition or disposition of any stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving consideration in excess of $10,000;
(a) except for agreements relating to unsecured trade payables incurred in the ordinary course of business, all agreements relating to Indebtedness (including, without limitation, guarantees) or the placing of an Encumbrance on any asset of the Company, in each case having an outstanding principal amount in excess of $10,000 and (b) any intercompany loans or similar Indebtedness between the Company and the Seller;
(iv) all agreements between or among the Company on the one hand and Seller or any Affiliate of Seller (other than the Company) on the other hand, in each case involving consideration in excess of $10,000;
(v) all collective bargaining agreements or agreements with any labor organization, union or association;
(vi) all Company IP Agreements (excluding any agreements for commercially available off-the-shelf Software that is not the subject of a negotiated agreement or customized for the Company, and in each case for which the aggregate amounts paid or payable to or by the Company are less than $10,000);
(vii) all contracts and agreements that (A) limit in any respect the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time or (B) contain exclusivity, minimum purchase or supply commitments involving purchases of more than $10,000 per year, most-favored-nation, non-solicitation or similar obligations or restrictions binding on the Company or that would be binding on Buyer or any of its Affiliates after the Closing; and
(viii) all settlement, conciliation or similar agreements with any Governmental Authority or pursuant to which the Company is obligated to satisfy any obligation after the date of this Agreement, a correct and complete list of each of the following types of Contracts to ;
(ix) all agreements under which the Company has advanced or any of its Subsidiaries is a party loaned, or by which any of their respective properties agreed to advance or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with loan, any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned SubsidiariesCompany) relating to indebtedness for borrowed money in an any amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;10,000; and
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Companyall distribution, (B) member of the Company Boardsupply, manufacturing, joint venture, partnership, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract similar agreements or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”arrangements.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in set forth on Section 3.09(b) of the aggregate, a Company Material Adverse EffectDisclosure Schedules, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge and is a valid and binding agreement of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadas applicable, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company Company, Seller nor any of its Subsidiaries, nor to the Knowledge of the Company any other party thereto is in breach of, or default under the terms of, or has provided or received any notice of any intention to a Company terminate, any such Material Contract.
(c) Seller has provided to Buyer a fully executed, is in violation of or in default under any provision of such Company Material Contract. True true, correct and complete copies copy of each of the Company Material Contracts and Contracts, including any material amendments thereto have been made available to Parent prior to the date of this Agreementthereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sanomedics, Inc.), Stock Purchase Agreement (POSITIVEID Corp)
Material Contracts. (a) Section 4.21(aSchedule 3.12(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, forth a correct and complete list of each of the following types of Purchased Contracts to which a Seller Entity, in connection with and primarily related to the Company or any of its Subsidiaries Business, is a party or by which it is bound or by which any of their respective properties the Purchased Assets or assets Assumed Liabilities is boundbound or affected:
(i) any Purchased Contract (A) with any supplier of goods, components, packaging, or other materials, or (B) relating to co-manufacturing, contract manufacturing, toll manufacturing, or similar arrangements pursuant to which any third party manufactures, assembles, packages, or produces any product on behalf of the Business, in each case that (1) has resulted in or is reasonably expected to result in expenditures by the Business of more than Fifty Thousand Dollars ($50,000) in any of 2025 or 2026, (2) requires the Business to purchase all or any portion of its requirements from such supplier or manufacturer, (3) contains any minimum purchase, volume commitment, or “take or pay” requirements, (4) grants such party any right to increase prices without the consent of the Business, or (5) contains any penalty or adverse consequence for failure to meet forecasted volumes;
(ii) any Purchased Contract with any e-commerce platform, online marketplace, retailer, wholesaler, distributor, fulfillment provider, third-party logistics provider, or other sales channel partner that (A) has resulted in or is reasonably expected to result in sales or expenditures by the Business of more than Fifty Thousand Dollars ($50,000) in any of 2025 or 2026, (B) grants such party exclusive or preferred rights with respect to any product, geographical area, or sales channel, (C) obligates the Business to provide equal or preferred pricing terms (including any “most favored nation” or “most favored customer” provision), (D) provides for any rebates, chargebacks, returns allowances, promotional allowances, or similar payments, (E) restricts the ability of the Business to sell products directly to consumers or through other channels, or (F) is with any of the ten (10) largest customers of the Business by revenue in any of 2025 or 2026;
(iii) any Purchased Contract with any advertising agency, marketing agency, digital marketing provider, influencer, affiliate marketer, or other Person engaged in marketing or promotional activities for the Business that (A) has resulted in or is reasonably expected to result in expenditures by the Business of more than Fifty Thousand Dollars ($50,000) in any of 2025 or 2026, or (B) grants such Person any exclusive rights;
(iv) any IP Contract;
(v) any material Purchased Contract relating to (A) quality assurance, product testing, product certification, product safety compliance, or product recalls, or (B) product warranty or recall obligations materially more extensive than the Business’s standard terms;
(vi) any Purchased Contract under which any Seller Entity is a lessee of or holds any equipment, warehouse, distribution center, or other property that has resulted in or is reasonably expected to result in expenditures by the Business of more than Fifty Thousand Dollars ($50,000) in any of 2025 or 2026;
(vii) any Purchased Contract relating to (A) the acquisition of any business, Equity Interests, or material assets of any other Person, or (B) the sale or disposition of any business, Equity Interests, or material assets (other than finished goods Inventory in the ordinary course consistent with past practice), in each case including any continuing indemnification, earnout, or non-compete obligations;
(viii) any Purchased Contract relating to the incurrence of Indebtedness by any Seller Entity with respect to the Business or the placing of any Encumbrance (other than a Permitted Encumbrance) on any of the Purchased Assets unless (A) any such Indebtedness will by its terms be satisfied in full as of the Closing and (B) any such Encumbrance will by its terms be released as of the Closing;
(ix) any Purchased Contract relating to any joint venture, partnership, strategic alliance, co-branding arrangement, or similar relationship;
(x) any Purchased Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line freedom of business the Business to compete with any Person or in any geographic region geographical area, product category, or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Companysales channel, (B) member restricts the development, manufacture, marketing, distribution, or sale of the Company Boardproducts, or (C) Company Employee providing for an annual base salary in excess includes any right of $250,000; andfirst offer or right of first refusal favoring any other Person;
(xi) any other Purchased Contract with any Governmental Authority; and
(xii) any Purchased Contract not otherwise set forth or series of related Contracts under which it would reasonably required to be expected that set forth on Schedule 3.12(a) pursuant to the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in foregoing clauses (i) through (xi) that is referred (A) not made in the ordinary course of business consistent with past practice, or (B) otherwise material to herein as a “Company Material Contract”the Business or the Purchased Assets.
(b) Except for Each Purchased Contract (i) set forth or required to be set forth on Schedule 3.12(a), and (ii) by which any Company Material Contract of the Purchased Assets are bound or affected or to which a Seller Entity is a party or by which it is bound in connection with the Business or the Purchased Assets, that is (A) related to material revenue generated by the Business, or (B) with a supplier of goods or services that has terminated resulted in, or expired in accordance with its terms and except as has not had, and would not that is reasonably be expected to haveresult in, individually expenditures by the Business of more than Twenty-Five Thousand Dollars ($25,000) in 2025 or in 2026 (collectively, the aggregate, a Company “Material Adverse Effect, each Company Material Contract Contracts”) is valid and binding and in full force and effect and constitutes a valid obligation of such Seller Entity and, to the Knowledge of the CompanySeller’s Knowledge, enforceable against the other party or parties thereto thereto, enforceable against such Seller Entity and, to Seller’s Knowledge, such other party or parties in accordance with its terms, subject to the Enforceability ExceptionsLimitations. Except for breaches, violations Each Seller Entity has performed or defaults which have not had, and would not reasonably be expected to have, individually or complied in the aggregate, a Company Material Adverse Effect, neither the Company nor any all material respects with all of its Subsidiariescovenants and obligations required to be performed by such Seller Entity under each Material Contract. No Seller Entity has provided written notice to, nor or received written notice from, any counterparty to the Knowledge of the Company a Material Contract that such Seller Entity or such counterparty is unable to perform, will not perform or is excused from performing, under any Material Contract. Neither a Seller Entity, nor, to Seller’s Knowledge, any other party to a Company Material Contract is in, or is alleged in writing to be in, material breach of or default under such Material Contract. No event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default in any material respect on the part of any Seller Entity or, to Seller’s Knowledge, any other party under any such Material Contract. No Seller Entity has received any written or, to Seller’s Knowledge, oral notice from any counterparty to a Material Contract that such counterparty intends to terminate, not renew, or materially amend the terms of such Material Contract, is in violation of and no Seller Entity has given any such written or in default under oral notice to any provision of such Company counterparty to a Material Contract. True Seller has provided to Purchaser a correct copy (including all amendments, exhibits, and complete copies schedules thereto) of each Material Contract (or, with respect to any oral Material Contract, a written summary of the Company terms and conditions of such oral Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementContract).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Aterian, Inc.), Asset Purchase Agreement (Aterian, Inc.)
Material Contracts. (a) Section 4.21(a5.17(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of each of Schedule lists the following types of Contracts contracts and agreements to which the Company or any of its Subsidiaries Subsidiary is a party or by which any (such contracts and agreements as are required to be set forth in Section 5.17(a) of their respective properties or assets is bound:the Disclosure Schedule being the “Material Contracts”):
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10610(b)(10) of Regulation S-K of the SEC) with respect to the Company and its Subsidiaries;
(ii) each material Hydrocarbon Contract;
(iii) each material license and permit required under applicable Law in connection with the Securities Act)conduct of oil and gas exploration and production by the Company and the Subsidiaries;
(iv) each material Software license relating to primary geological and financial processes to which the Company or any Subsidiary is subject;
(v) each contract and agreement, whether or not filed by made in the Company ordinary course of business, that contemplates an exchange of consideration with a value of more than US$200,000, in the SECaggregate, over the term of such contract or agreement;
(vi) all contracts and agreements evidencing indebtedness in excess of US$200,000;
(vii) all joint venture, partnership, strategic alliance and business acquisition or divestiture agreements (and all letters of intent, term sheets and draft agreements relating to any such pending transactions);
(viii) all agreements relating to issuances of securities of the Company or any Contract governing a Related Party Transaction Subsidiary (as defined belowand all letters of intent, term sheets and draft agreements relating to any such pending transactions);
(ix) all framework agreements to which the Company or any registration rights agreements with respect Subsidiary is a party relating to securities purchases of goods or services from the CompanyCompany or any Subsidiary;
(x) any employment or consulting Contract (in each case with respect all exclusive distribution contracts to which the Company has continuing obligations as of the date hereof) with or any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; andSubsidiary is a party;
(xi) any other Contract all leases of real property leased for the use or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge benefit of the Company or any other party to a Company Material Contract, is Subsidiary requiring rental payments in violation excess of US$200,000 over the period of the lease;
(xii) all contracts relating in whole or in default under part to Intellectual Property pursuant to which the Company or any provision of such Company Material Contract. True and complete copies Subsidiary obtains from any third party any material Intellectual Property rights or the right to manufacture, distribute or sell any product of the Company Material Contracts and or such third party;
(xiii) all contracts relating in whole or in part to Intellectual Property pursuant to which the Company or any Subsidiary grants to any third party any material amendments thereto have been made available Intellectual Property rights or the right to Parent prior manufacture, distribute or sell any product of the Company or such third party;
(xiv) all management contracts (excluding contracts for employment) and contracts with other consultants, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Subsidiary or income or revenues related to any product of the date Company or any Subsidiary to which the Company or any Subsidiary is a party;
(xv) all contracts and agreements with any Governmental Authority to which the Company or any Subsidiary is a party;
(xvi) all contracts and agreements that limit, or purport to limit, the ability of this Agreement.the Company or any Subsidiary to compete in any line of business or with any Person or entity or in any geographic area or during any period of time;
Appears in 2 contracts
Sources: Investment Agreement (Transmeridian Exploration Inc), Investment Agreement (Transmeridian Exploration Inc)
Material Contracts. (a) Section 4.21(aSchedule 3.11(a) of the Company Seller Disclosure Letter sets forth, forth as of the date of this Agreement, hereof a correct and complete list of each of the following types Contracts (other than purchase orders entered into in the ordinary course of Contracts business) to which a Conveyed Company or, in the Company case of any Shared Contract, Seller or any of its Subsidiaries Affiliates (other than a Conveyed Company), is a party (collectively, with the Real Property Leases, CBAs, Affiliate Contracts, Government Contracts and Landlord Leases, the “Material Contracts”), true and complete copies of which Seller has made available to Purchaser prior to the date hereof (except, in the case of any Contracts with any Governmental Authority, where prohibited by Law; provided, that such exception to the obligation to list any such Contract in this Section 3.11(a) shall not be deemed to exclude such Contract from the definition of “Material Contract” for purposes of Sections 3.5, 3.11(a)(iv), 3.11(b) or by which any 3.22) or, in the case of their respective properties or assets is boundan oral Contract, a written summary of all material terms thereof:
(i) each Contract that between Seller and/or any of its Affiliates (Aother than the Conveyed Companies) limits or restricts in any material respect of the Company and officers or directors of Seller and/or any of its Subsidiaries from competing in any line of business with any Person in any geographic region or Affiliates (B) contains exclusivity obligations or restrictions binding onother than the Conveyed Companies), on the one hand, and material toany Conveyed Company, on the Company and its Subsidiaries, taken as a wholeother hand;
(ii) each Contract that is a joint venture in respect of Indebtedness contemplated by clauses (i), (ii), (iii) (whether drawn or partnership agreement that is material to undrawn), (iv), (v) or (viii) of the Company and its Subsidiaries, taken as a wholedefinition of Indebtedness;
(iii) each Contract with each customer of the Business (A) having generated aggregate revenues for the Business of $10,000,000 or more during fiscal year 2017 or the portion of fiscal year 2018 ending on June 30, 2018 or (B) that is party to a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between Contract with any Conveyed Company which Contract is reasonably expected to generate aggregate revenues for the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess Business of $1,000,00010,000,000 or more in any of fiscal years 2018 through 2020 (each such customer, a “Material Customer”) (including, for the avoidance of doubt, any Contracts that have been executed, but are not yet considered contracts in force by the Conveyed Companies);
(iv) each Contract regarding the purchase of goods or services with respect to an interest, rate, currency or other swap or derivative transaction any Material Suppliers (other than those between purchase orders entered into in the Company and its Subsidiaries) with a fair value in excess ordinary course of $1,000,000business);
(v) any (A) material license, royalty, indemnification, covenant not to ▇▇▇, Technology escrow, co-existence, concurrent use agreement, or consent to use Contract relating to any Intellectual Property (including any Contracts relating to the licensing of Intellectual Property by any of the Conveyed Companies to a third party or by a third party to any of the Conveyed Companies), (B) Contract relating to the development, or transfer of ownership, of any material Intellectual Property or Technology by or for, or to or from, any of the Conveyed Companies (except, in each case, licenses for unmodified open source software and other commercially available “off the shelf” computer software or online services that is generally commercially available with an aggregate license fee of less than $100,000, non-exclusive licenses to use products or services of the Conveyed Companies granted to third parties in the ordinary course of business, non-disclosure agreements entered into in the ordinary course of business, and agreements with Conveyed Companies’ employees and consultants entered into in the ordinary course of business);
(vi) any employment, severance or consulting agreement with any officer, current Conveyed Company Employee or Additional Business Employee that (i) provides for annual compensation exceeding $150,000 and (ii) cannot be terminated without any liability to any Conveyed Company on notice of ninety (90) days or less;
(vii) any Contract pursuant to which a Lien other than a Permitted Lien is currently placed on any material asset of any Conveyed Company;
(viii) any lease under which any Conveyed Company is the lessor of, or permits any third party to hold or operate, any personal property for which, the annual rental exceeds $100,000;
(ix) any Contract, the primary purpose of which is to obligate any Conveyed Company to indemnify any Person;
(x) any Contract that is a settlement, conciliation or similar agreement of an acquisition agreement or a divestiture agreement pursuant Action with any Person that contains any ongoing obligations related to which any material aspect of the Business;
(xi) each Contract (A) limiting the freedom of any Conveyed Company reasonably expects that it is required to pay total consideration (including assumption compete with any Person in connection with such entity’s conduct of debt) after the date of this Agreement to be in excess of $1,000,000 or Business, (B) containing any exclusivity or “most favored nations” clauses that, in the case of any such clauses, relate to any material aspect of the Business or (C) imposing any geographic or other restriction upon the ability of any Conveyed Company to freely engage in any material aspect of the Business anywhere in the world;
(xii) each Shared Contract;
(xiii) each Contract regarding the formation or participation in a joint venture or partnership with a third party;
(xiv) any Contract that is a TE Support Instrument; and
(xv) any Contract that provides for any Retention Bonus.
(b) Each Contract required to be set forth on Schedule 3.11(a) of the Seller Disclosure Letter is in full force and effect and there exists no default or event of default, and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default (taking into account any applicable cure period under such Contract), by the applicable Conveyed Company or, to the Knowledge of Seller, any other Person has party to any such Contract, with respect to any term or provision of any such Contract, except, in each case, as would not reasonably be expected to be material to the right to acquire any assets Conveyed Companies, taken as a whole. Each Material Contract is a valid and binding agreement of the applicable Conveyed Company or any enforceable against such Conveyed Company in accordance with its terms, and, to the Knowledge of its Subsidiaries after Seller, each Material Contract is a valid and binding agreement of the date of this Agreement with a fair market value or purchase price of more than $1,000,000other parties thereto, excludingexcept, in each case, (xi) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed enforcement may be limited by the Company with the SEC;
Enforceability Exceptions and (viiiii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to havebe material to the Conveyed Companies, individually taken as a whole.
(c) With regard to any Contract for the sale of supplies or services under which final payment has not been received that is between any Conveyed Company and a Governmental Authority or entered into by any Conveyed Company as a subcontractor at any tier in connection with a Contract between another Person in its capacity as a higher-tier contractor, on the one hand, and a Governmental Authority, on the other hand (each, a “Government Contract”), during the three (3) years prior to the date hereof, the Conveyed Companies have not:
(i) materially breached or materially violated any Law, certification, representation, clause, provision or requirement pertaining to any Government Contract;
(ii) failed to submit materially accurate invoices nor failed to provide customers with the material benefit of all applicable rebates, discounts and credits to the extent required by a Government Contract;
(iii) received written notice of material breach, cure, show cause, default, audit (other than audits in the aggregateordinary course), government investigation or subpoena relating to a Company Material Adverse EffectConveyed Company’s performance of a Government Contract;
(iv) conducted any internal investigation or made any disclosure to a Governmental Authority, in each Company Material case, with respect to any material alleged or potential overcharge, misstatement or omission relating to a Government Contract;
(v) been a party to a Government Contract is valid and binding and that provides for a Governmental Authority to obtain Intellectual Property rights in full force and effect andor to the results of work performed under or derived from a Government Contract, other than the rights provided for under 48 C.F.R. § 252.227-7015; or
(vi) been suspended or debarred or proposed for suspension or debarment from bidding on government contracts by a Governmental Authority, nor, to the Knowledge of the CompanySeller, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiariestheir respective officers, nor to the Knowledge of the Company directors, principals, owners, managers or agents been suspended or debarred or made any other party to bribe, kickback or unlawful payment, lobbying or political contribution in connection with a Company Material Government Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (TE Connectivity Ltd.), Stock Purchase Agreement
Material Contracts. (a) Except for Contracts with Providers, which are addressed exclusively in Section 4.21(a3.01(s)(x), Section 3.01(n) of the Company Seller Disclosure Letter sets forth, forth a list as of the date of this Agreement, a correct and complete list Agreement of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundContract:
(i) each Contract that pursuant to which any Non-MCC Entity (Asolely with respect to the MCC Business) limits or restricts Transferred Entity generated aggregate revenue through billing of third parties, revenue guarantees, subsidy payments or other payments in any material respect excess of One Hundred Million Dollars ($100,000,000) during the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or twelve (B) contains exclusivity obligations or restrictions binding on12)-month period ended December 31, and material to2019 (each, the Company and its Subsidiaries, taken as a whole“Material Customer”);
(ii) each Contract with a vendor or supplier (excluding any Contracts with Providers) of any Non-MCC Entity (solely with respect to the MCC Business) or Transferred Entity that provided for aggregate payments from any Non-MCC Entity (solely with respect to the MCC Business) or Transferred Entity of more than One Million Dollars ($1,000,000) during the twelve (12)-month period ending December 31, 2019 (each, a “Material Vendor”);
(iii) that is a Government Program Contract;
(iv) that governs the formation, creation, operation, management or control of any partnership or joint venture primarily related to the ownership or partnership agreement operation of the MCC Business;
(v) for a Transferred Lease;
(vi) that grants “most favored nation” protections to the counterparty to such Contract that is material to the Company and its Subsidiaries, taken as a wholeMCC Business;
(iiivii) each Contract that is a loansettlement, guarantee of indebtedness conciliation or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each similar Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required Transferred Entities are expected to pay total consideration (including assumption have any material or monetary impact on the operation of debt) the MCC Business after the date of this Agreement Agreement;
(viii) that obligates any Transferred Entity to be provide indemnification to any current or former director, officer or employee;
(ix) that contains any future capital expenditure obligations of any Transferred Entity in excess of Two Million Dollars ($1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, 2,000,000);
(x) acquisitions that is primarily related to the ownership or dispositions of supplies, inventory or products in connection with the conduct operation of the Company’s MCC Business and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in is required be filed by the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each Seller as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) that is primarily related to the ownership or operation of the MCC Business and contains a put, call or similar right pursuant to which any other Contract or series of related Contracts under which it would reasonably be expected that Non-MCC Entity (solely with respect to the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”MCC Business) or make annual payments Transferred Entity would be required to purchase or sell, as applicable, any equity interests of $5,000,000 any Person;
(xii) that is a Seller Guarantee; or
(xiii) that is an Affiliate Contract other than a Seller Plan or more, in each case, during any twelve that was entered into other than on arms’-length terms (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in Contracts required to be listed pursuant to clauses (i) - (xiii) of this Section 3.01(n), the “Material Contracts”). A true, correct and complete copy of each Material Contract, as amended through the date of this Agreement, including all attachments, schedules and exhibits thereto, has been made available to the Purchaser prior to the date of this Agreement. Each of the Material Contracts, and each Contract entered into after the date hereof that would have been a Material Contract if entered into prior to the date hereof (xieach, an “Additional Contract”) is referred (or if entered into after the date hereof, will be) valid and binding on the applicable Non-MCC Entity (solely with respect to herein the MCC Business) or Transferred Entity, as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not hadthe case may be and, to the Knowledge of the Seller, each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and. No Non-MCC Entity (solely with respect to the MCC Business) or Transferred Entity or, to the Knowledge of the CompanySeller, enforceable against the any other party party, is in breach of or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations default under any Material Contract or defaults which have not hadAdditional Contract, and no event has occurred that, with the lapse of time or the giving of notice or both, would not reasonably be expected to haveconstitute a default thereunder by the Seller or any of its Subsidiaries, in each case, except for such breaches and defaults as would not, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor be material to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementMCC Business.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Magellan Health Inc), Stock and Asset Purchase Agreement (Molina Healthcare, Inc.)
Material Contracts. (a) Section 4.21(a) of Except for Contracts evidencing Company Loans made by the Company Disclosure Letter sets forthBank in the Ordinary Course of Business, Schedule 3.16 lists or describes the following with respect to the Company and each of its Subsidiaries (each such agreement or document, a "Company Material Contract") as of the date of this Agreement, a true, complete and correct and complete list copies of each of which have been made available to Acquiror:
(a) all loan and credit agreements, conditional sales Contracts or other title retention agreements or security agreements relating to money borrowed by it in excess of One Million Dollars ($1,000,000), exclusive of deposit agreements with customers of the following types Company Bank entered into in the Ordinary Course of Business, agreements for the purchase of federal funds and repurchase agreements and Federal Home Loan Bank advances;
(b) each Contract that involves performance of services or delivery of goods or materials by it of an amount or value in excess of Two Hundred Fifty Thousand Dollars ($250,000) (other than Contracts for the sale of loans);
(c) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts by it in excess of Two Hundred Fifty Thousand Dollars ($250,000);
(d) each Contract not referred to elsewhere in this Section 3.16 that: (i) relates to the future purchase of goods or services that materially exceeds the requirements of its business at current levels or for normal operating purposes; or (ii) has a Material Adverse Effect on the Company or its Subsidiaries;
(e) each lease, rental, license, installment and conditional sale agreement and other Contract affecting the ownership of, leasing of, title to or use of, any personal property (except personal property leases and installment and conditional sales agreements having aggregate remaining payments of less than Two Hundred Fifty Thousand Dollars ($250,000));
(f) each material licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property (other than shrink-wrap license agreements or other similar license agreements), including material agreements with current or former employees, consultants or contractors regarding the appropriation or the nondisclosure of any of its intellectual property;
(g) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(h) each joint venture, partnership and other Contract (however named) involving a sharing of profits, losses, costs or liabilities by it with any other Person;
(i) each Contract containing covenants that in any way purport to restrict, in any material respect, the business activity of the Company or its Subsidiaries or limit, in any material respect, the ability of the Company or its subsidiaries to engage in any line of business or to compete with any Person;
(j) each Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods having an average annual amounts in excess of Two Hundred Fifty Thousand Dollars ($250,000);
(k) each current employment, consulting or non-competition agreement to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:party;
(il) each Contract that (A) limits and Company Benefit Plan pursuant to which any Person is or restricts in would be entitled to receive any material respect payment from the Company and or its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholeresult of the consummation of the Contemplated Transactions (including any payment that is or would be due as a result of any actual or constructive termination of a Person's employment or position following such consummation) and the maximum amount of such payment;
(iim) each Contract that is for capital expenditures for a joint venture single property, individually, or partnership agreement that is material to the Company and its Subsidiariescollectively with any other Contract for capital expenditures on such property, taken as a wholein excess of One Hundred Thousand Dollars ($100,000);
(iiin) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000Benefit Plan;
(ivo) each Contract with respect to an intereststockholder, ratestock purchase, currency voting trust or other swap similar Contract or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess arrangement, including any such Contract or arrangement granting voting, dividend, ownership, director appointment or designation, or indemnification rights to any holder of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets securities of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more Subsidiaries, other than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
Certificate of Incorporation and Company Bylaws (vi) each Contract pursuant to which collectively, the "Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities ActStockholder Agreements"), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xip) each amendment, supplement and modification in respect of any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”foregoing.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Midland States Bancorp, Inc.), Merger Agreement (Centrue Financial Corp)
Material Contracts. (a) Section 4.21(a) of Baytex has disclosed in writing to Raging River on or prior to the Company Disclosure Letter sets forthAgreement Date, as of under the date of this Agreementheading "Material Contracts" in Baytex's annual information form dated March 9, 2018 and in the Baytex Public Record after March 9, 2018 and on or prior to the Agreement Date, a correct and complete list of each all of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company Contracts, correct, current and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment complete copies (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction the Contracts referred to in clause (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (yiv)) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior Raging River (the "Material Contracts"): (i) all Contracts containing any rights on the part of any Person, including joint venture partners or entities, to acquire oil and gas or other property rights from any member of the date Baytex Group; (ii) all Contracts containing any rights on the part of any member of the Baytex Group to acquire oil and gas or other property rights from any Person; (iii) any Contract in respect of which the applicable transaction has not yet been consummated for the acquisition or disposition of assets or securities or other equity interests of another Person; (iv) any standstill or similar Contract currently restricting the ability of Baytex to offer to purchase or purchase the assets or equity securities of another Person; (v) all Contracts which entitle a party to rights of termination, the terms or conditions of which may or will be altered, or which entitle a party to any fee, payment, penalty or increased consideration, in each case as a result of the execution of this Agreement, the consummation of the transactions contemplated hereby or a "change in control" of Baytex including without limitation any seismic license or similar agreements; and (vi) all Contracts pursuant to which Baytex will, or may reasonably be expected to, result in a requirement of Baytex to expend more than an aggregate of $5,000,000 or receive or be entitled to receive revenue of more than an aggregate of $5,000,000 in either case in the next 12 months, or is out of the ordinary course of business of Baytex. Each of such Material Contracts constitutes a legally valid and binding agreement of Baytex or its subsidiaries, enforceable in accordance with their respective terms and, to the knowledge of Baytex, no party thereto is in default in the observance or performance of any term or obligation to be performed by it under any such Contract or agreement which is material to the business of Baytex (taken as a whole) and no event has occurred which with notice or lapse of time or both would directly or indirectly constitute such a default, in any such case which default or event would reasonably be expected to have a material adverse effect on the Baytex Group (taken as a whole).
Appears in 2 contracts
Sources: Arrangement Agreement (Baytex Energy Corp.), Arrangement Agreement (Baytex Energy Corp.)
Material Contracts. (a) Section 4.21(a3.9(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of Schedules lists each of the following types Contracts of Contracts to which the Company or any Major Subsidiary (such Contracts, together with all Contracts concerning the occupancy, management or operation of its Subsidiaries is a party any Real Property (including without limitation, brokerage contracts) listed or by which any otherwise disclosed in Section 3.10(b) of their respective properties or assets is bound:the Disclosure Schedules and all Contracts relating to Company Intellectual Property, being “Material Contracts”):
(i) each Contract that (A) limits or restricts involving aggregate consideration in any material respect excess of $25,000 and which, in each case, cannot be cancelled by the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations a Major Subsidiary, as applicable, without penalty or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholewithout more than 30 days’ notice;
(ii) each Contract all Contracts that is require a joint venture Company or partnership agreement Major Subsidiary to purchase its total requirements of any product or service from a third party or that is material to the Company and its Subsidiaries, taken as a wholecontain “take or pay” provisions;
(iii) each Contract all Contracts that is provide for the indemnification by a loanCompany or Major Subsidiary of any Person or the assumption of any Tax, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture environmental or other binding commitment (other than letters Liability of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000any Person;
(iv) each Contract with respect all Contracts that relate to an interestthe acquisition or disposition of any business, ratea material amount of equity or assets of any other Person or any real property (whether by merger, currency sale of stock or other swap equity interests, sale of assets or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000otherwise);
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the a Company or any of its Subsidiaries after the date of this Agreement with Major Subsidiary is a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiariesparty;
(vi) each Contract pursuant all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the a Company or any of its Subsidiaries has continuing “earn-out” Major Subsidiary is a party and which are not cancellable without material penalty or similar obligations that could result in payments in excess of $1,000,000 in the aggregatewithout more than 30 days’ notice;
(vii) each “material contract” except for Contracts relating to trade receivables, all Contracts relating to indebtedness (as such term is defined in Item 601(b)(10including, without limitation, guarantees, loan agreements, indentures, pledges, mortgages, security agreements, letters of credit, or equipment leases) of Regulation S-K under the Securities Act), whether a Company or not filed by the Company with the SECMajor Subsidiary;
(viii) any Contract governing all management agreements for ASCs to which a Related Party Transaction (as defined below)Company or Major Subsidiary is a party;
(ix) any registration rights all management agreements with respect for Hospitals to securities of the Companywhich a Company or Major Subsidiary is a party;
(x) all Contracts with any employment or consulting Contract (in each case with respect Governmental Authority to which a Company or Major Subsidiary is a party;
(xi) all Contracts between or among a Company or Major Subsidiary and a third party payor, including Medicaid provider agreements, management agreements, managed care agreements or other agreements with customers (including, without limitation, any insurance company or health maintenance organization) to the extent that such agreements have involved payments to a Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary and/or Major Subsidiaries in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that 500,000 during the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement, provided that with respect to this clause (xi), payments required under multiple Contracts with the same third party payor or with affiliates of such third party payor will be aggregated in order to determine if the $500,000 threshold is reached;
(xii) all Contracts that limit or purport to limit the ability of a Company or Major Subsidiary to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xiii) any Contracts to which a Company or Major Subsidiary is a party that provide for any joint venture, partnership or similar arrangement by a Company or Major Subsidiary;
(xiv) all Contracts between or among a Company or Major Subsidiary on the one hand and Seller or any Affiliate of Seller (other than a Company or Major Subsidiary) on the other hand;
(xv) all collective bargaining agreements or Contracts with any Union to which a Company or Major Subsidiary is a party; and
(xvi) any other Contract that is material to a Company or Major Subsidiary and not previously disclosed pursuant to this Section 3.9.
(b) Each Material Contract is valid and binding on the Company or Major Subsidiary, as applicable, in accordance with its terms and is in full force and effect. None of the Companies, the Major Subsidiaries or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. 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 changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer or Parent.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Graymark Healthcare, Inc.), Membership Interest Purchase Agreement (Graymark Healthcare, Inc.)
Material Contracts. (a) Section 4.21(a4.16(a) of the Company Disclosure Letter sets forthSchedule lists, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries Company Subsidiary is a party or party, excluding for this purpose, any purchase orders submitted by which customers (such Contracts as are required to be set forth in Section 4.16(a) of the Company Disclosure Schedule, along with any Plan listed on Section 4.10(a) of their respective properties or assets is bound:the Company Disclosure Schedule, being the “Material Contracts”):
(i) each Contract that (A) limits or restricts in any material respect all Contracts with consideration payable to the Company and its Subsidiaries from competing in or any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its SubsidiariesSubsidiaries of more than $150,000, taken as a wholein the aggregate, over any 12-month period;
(ii) each Contract that is a joint venture requiring payment by or partnership agreement that is material to the Company and after the date of this Agreement in excess of $150,000 pursuant to its Subsidiariesexpress terms relating to (A) any agreement involving provision of services or products with respect to any pre-clinical development activities of the Company or (B) any alliance, taken as a wholejoint venture, cooperation, development or other agreement currently in force under which the Company has continuing obligations to develop any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property rights that will not be owned, in whole or in part, by the Company;
(iii) each Contract that all Contracts pursuant to which the Company or any Company Subsidiary has engaged any third party to manage the business of the Company or any Company Subsidiary (excluding contracts for employment), to the extent material to the business of the Company or any Company Subsidiary;
(iv) all Contracts with any Governmental Authority to which the Company or any Company Subsidiary is a loanparty or which otherwise govern the use of any Company Owned IP, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the any Company and its wholly owned SubsidiariesPermits;
(v) relating to all Contracts evidencing indebtedness for borrowed money in an amount in excess of greater than $1,000,000;
(iv) each Contract with respect to an interest150,000, rateand any pledge agreements, currency security agreements or other swap or derivative transaction (other than those between collateral agreements in which the Company and its Subsidiaries) with or any Company Subsidiary granted to any Person a fair value in excess Lien on any of $1,000,000;
(v) each Contract that is an acquisition agreement the property or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after Company Subsidiary, and all agreements or instruments guaranteeing the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties debts or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct obligations of business of the Company or its Subsidiariesany Person;
(vi) each Contract all Contracts pursuant to which the Company or a Company Subsidiary has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones which would result in a payment in excess of $150,000 or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company, in each case that cannot be terminated by the Company without penalty, or without more than sixty (60) days’ notice without material payment or penalty;
(vii) all Contracts establishing any partnership, joint venture, strategic alliance or other collaboration or similar arrangement between the Company or any Company Subsidiary, on the one hand, and any third party, on the other hand (including with respect to the Products);
(viii) any Contract relating to the acquisition or disposition of any business or asset (whether by merger, sale of stock, sale of assets or otherwise) under which the Company or any of its Subsidiaries Affiliates has continuing or will have obligations with respect to an “earn-earn out,” contingent purchase price or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below)contingent payment obligation;
(ix) all Contracts that limit, or purport to limit, the ability of the Company or any registration rights agreements Company Subsidiary to compete in any line of business or with any Person or entity or in any geographic area or during any period of time excluding customary confidentiality clauses;
(x) all Contracts that result in any Person or entity holding a power of attorney from the Company or any Company Subsidiary that materially relates to the Company, any Company Subsidiary or materially impacts their respective business;
(xi) all Leases, and all leases or master leases of personal property, reasonably likely to result in annual payments of $150,000 or more in a 12-month period;
(xii) all Contracts involving use of or granting licenses to the Company or any of the Company Subsidiaries with respect to securities any Company Licensed IP that are material to the business of the Company;
(xxiii) any employment all Contracts which involve the license or consulting Contract grant of rights to Company Owned IP by the Company or the Company Subsidiaries, other than (A) collaboration agreements entered into on the form of such agreement made available in each case the Virtual Data Room or (B) and license agreements granted in the ordinary course of business to customers in connection with respect Products or to suppliers or service providers in the ordinary course of business solely for the purpose of enabling such suppliers or service providers to provide services for the benefit of the Company or the Company Subsidiaries;
(xiv) all Contracts under which the Company has continuing obligations as agreed to purchase goods or services from a vendor, Supplier or other Person on a preferred supplier or “most favored supplier” basis or which otherwise establishes any exclusive sale or distribution obligation with respect to any Product or geographic area;
(xv) all Contracts for the development of Company Owned IP for the benefit of the date hereof) with any current (A) executive officer of Company that are material to the Company, other than employment, consulting and collaboration agreements entered into on the form of such agreement made available in the Virtual Data Room, without material modification;
(Bxvi) member all Contracts under which any broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Transactions, or which has a fee tail still in effect, based upon arrangements made by or on behalf of the Company Board, or any Company Subsidiary;
(Cxvii) all Contracts that provide for the settlement of any material Action that contains any ongoing material obligation on the Company Employee providing for an annual base salary in excess of $250,000or the Company Subsidiaries; and
(xixviii) any other Contract or series of related all Contracts under which it would reasonably be expected that between the Company and its Subsidiaries would receive annual payments any holders of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract than 2% of the type described in clauses Company’s Capital Stock (iassuming the full conversion or exercise of all Company Securities held by such Person) through (xi) is referred that relate to herein as a “such stockholder’s ownership of Company Material Contract”Securities.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not hadbeen, and would not reasonably be expected to havebe, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a Company Material Adverse Effectwhole, as of the date of this Agreement (i) each Company Material Contract is a legal, valid and binding and in full force and effect obligation of the Company or the Company Subsidiaries and, to the Knowledge knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadthereto, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its SubsidiariesCompany Subsidiary is in material breach or violation of, or material default under, any Material Contract nor has any Material Contract been canceled by the other party; (ii) to the Knowledge Company’s knowledge, no other party is in material breach or violation of, or material default under, any Material Contract; and (iii) the Company and the Company Subsidiaries have not received any written, or to the knowledge of the Company Company, oral claim of any other party to a Company Material Contract, is in violation of or in material default under any provision of such Company Material Contract. True and complete copies As of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement, the Company has furnished or made available to Parent in the Virtual Data Room true and complete copies, in all respects, of all Material Contracts, including amendments thereto that are material in nature.
Appears in 2 contracts
Sources: Merger Agreement (Breeze Holdings Acquisition Corp.), Merger Agreement (Breeze Holdings Acquisition Corp.)
Material Contracts. (a) Section 4.21(aSections 6.10(a)(i) through (ix) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list Schedule contains lists of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:(such Contracts, "Material Contracts"):
(i) each Contract that (A) limits involved aggregate payments by or restricts in any material respect to the Company and or one of its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding onmore than $100,000 during the year ended September 30, 2006 and material to, that is not cancelable by the Company and its Subsidiaries, taken as a wholewithout liability on thirty (30) or less days' notice to the other party thereto;
(ii) each Contract for the lease of personal property by or from the Company or one of its Subsidiaries that involved payments in excess of $100,000 during the year ended September 30, 2006 and that is a joint venture not cancelable by the Company or partnership agreement that is material one of its Subsidiaries without liability on thirty (30) or less days' notice to the Company and its Subsidiaries, taken as a wholeother party thereto;
(iii) each Contract that is a loan, guarantee by its express terms limits the ability of indebtedness Company or credit agreement, note, bond, mortgage, indenture one of its Subsidiaries to engage in any line of business or other binding commitment (other than letters compete with any Person or otherwise conduct its business in any geographic area or during any period of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000time;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between all Contracts of the Company and or one of its Subsidiaries) with a fair value in excess of $1,000,000Subsidiaries evidencing Indebtedness;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to all Contracts under which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has directly or indirectly guaranteed the right to acquire any assets Indebtedness, liabilities or obligations of the Company or any one of its Subsidiaries, or the Company or one of its Subsidiaries after has directly or indirectly guaranteed the date Indebtedness, liabilities or obligations of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiariesany Person;
(vi) each Contract pursuant to which all Contracts of the Company or any one of its Subsidiaries has continuing “earn-out” which are joint venture or similar obligations that could result in payments in excess of $1,000,000 in the aggregatepartnership agreements;
(vii) each “all Contracts granting or obtaining Intellectual Property rights that are material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by to the Company with or one of its Subsidiaries, other than Contracts relating to computer software, systems or equipment that involved payments by or to the SECCompany or one of its Subsidiaries of less than $100,000 during the year ended September 30, 2006;
(viii) any Contract governing a Related Party Transaction (as defined below);all Contracts between the Company or one of its Subsidiaries and the officers or directors of the Company; and
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member all Contracts of the Company Board, or (C) Company Employee providing for an annual base salary in excess one of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during with any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Governmental Entity.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Each such Contract is a legal, valid and binding and in full force and effect and, to the Knowledge obligation of the Company, enforceable against the other party or parties thereto Company and/or such Subsidiary, as the case may be, in accordance with its terms, subject to the Enforceability Exceptions. Except for breachesLaws of general application relating to bankruptcy, violations or defaults which have not hadinsolvency, and the relief of debtors and other Laws of general application affecting enforcement of creditors' rights generally, rules of Law governing specific performance, injunctive relief and other equitable remedies. There has not occurred any breach, violation or default or any event that, with the lapse of time, the giving of notice or the election of any Person, or any combination thereof, would not reasonably be expected constitute a material breach, violation or default by the Company or a Subsidiary, as the case may be, under any such Contract or, to havethe knowledge of the Company, individually or in the aggregate, a Company Material Adverse Effect, neither by any other Person to any such Contract. Neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company Subsidiaries has been notified that any other party to a Company any Material Contract intends to cancel, terminate, not renew or exercise an option under any Material Contract, is whether in violation of connection with the transactions contemplated hereby or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreementotherwise.
Appears in 2 contracts
Sources: Investment Agreement (Emcore Corp), Investment Agreement (Worldwater & Power Corp)
Material Contracts. (a) Except for this Agreement, for Contracts filed as an exhibit to the SEC Documents or as disclosed in Section 4.21(a4.11(a) of the Company Disclosure Letter sets forthSchedule, as of the date of this AgreementAgreement (a) neither the Company nor any of its Subsidiaries is a party to, a correct and complete list of each (b) none of the following types Company, any of Contracts its Subsidiaries, or any of their respective properties, assets or rights is bound by any:
(i) Contract that is or would be required to which be filed by the Company as a “material contract” with the SEC pursuant to Item 601 of Regulation S-K under the Securities Act;
(ii) Contract of employment, consulting, management, separation, severance, indemnification, or similar agreement with any (A) Person holding more than 5% of the fully diluted shares of the Company’s Common Stock at ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) director or corporate officer of the Company or any of its Subsidiaries or (C) any Management-Level Employee;
(iii) Contract of employment, consulting, management, separation, severance, indemnification, or similar agreement with any employee, consultant or independent contractor providing for total annual compensation (exclusive of benefits costs) from the Company or any Subsidiary in excess of $250,000 and which is not terminable by the Company or any Subsidiary upon less than 90 days’ notice without severance, penalty or other obligations other than under any applicable Law;
(iv) loan, credit agreement, note, mortgage, indenture, bond, letter of credit or other obligation or agreement or other instrument entered into by the Company or any Subsidiary for or relating to Indebtedness (including capitalized lease obligations, but for purposes of clarity, excluding any operating lease obligations), in each case involving obligations in excess of $1,000,000, or any guarantee by the Company or any Subsidiary of third-party obligations or any guarantee by a third party of such obligations of the Company or any Subsidiary, in each case other than accounts receivable and payable and loans made by or to the Company to or by which any of their respective properties its Subsidiaries or assets is bound:among Subsidiaries;
(iv) each Collective Bargaining Agreement;
(vi) Contract that for the lease or sublease of personal property with an annual base rental obligation of more than $500,000 or a total remaining rental obligation of more than $1,000,000;
(vii) joint venture, strategic alliance, partnership, limited liability company agreement or similar agreement or arrangement with any other Person;
(viii) Contract (A) limits limiting the type of business activity of the Company, any Subsidiary or restricts in any material respect other Affiliate (including Parent and its Affiliates after the Merger) or limiting the freedom of the Company or any of its Subsidiaries or other Affiliate (including Parent and its Subsidiaries from competing Affiliates after the Merger) to engage in any line of business in any geographic area, to compete with any Person (other than the Company or any Subsidiary) or to solicit customers, in any geographic region each case to the extent such limitation is material to the business of the Company and its Subsidiaries, taken as a whole or (B) that contains exclusivity obligations pricing or restrictions binding onmargin provisions that provide “most favored nation” or similar provisions with respect to pricing to a Significant Customer of the Company;
(ix) Contract (other than any Contracts of the type described in clauses (i)—(viii) above, irrespective of the dollar threshold, and other than real or personal property leases) requiring payments by the Company or any Subsidiary in excess of $1.0 million per year and which are not terminable by the Company or such Subsidiary upon less than 180 days’ notice;
(x) Contract relating to an acquisition, divestiture, merger or similar transaction that contains representations, covenants, indemnities or other obligations (including payment, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) of the Company or any of its Subsidiaries that are still in effect and would reasonably be expected to result in payments in excess of $100,000 for any such Contract individually or $1,000,000 in the aggregate for all such Contracts;
(xi) other than an acquisition subject to clause (x) above, Contract that obligates the Company to make any capital commitment or expenditure (including pursuant to any joint venture) in excess of $500,000;
(xii) Contract that limits the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries, limits the pledging of the capital stock of the Company or any of its Subsidiaries or limits the issuance of guarantees by any Subsidiary of the Company;
(xiii) Contract permitting or restricting the use by the Company or any Subsidiary of Intellectual Property that is material toto the conduct of the business of the Company and its Subsidiaries, taken as a whole (other than licenses or access rights to off-the-shelf software or cloud-based software solutions requiring payments by the Company or any Subsidiary of less than $500,000 over the life of the license or subscription);
(xiv) Contract relating to any interest rate, derivatives, hedging or similar transaction that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iixv) each Government Contract that or an Order of a Governmental Entity to which the Company or any of its Subsidiaries is a joint venture subject involving future performance by the Company or partnership agreement any of its Subsidiaries that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iiixvi) each (A) material Contract that is a loan, guarantee of indebtedness with any Significant Customer or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between B) Contract with any Significant Supplier requiring payments by the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount or any Subsidiary in excess of $1,000,0001.0 million per year, in each case with respect to clauses (A) and (B), other than purchase orders or similar agreements issued under long-term or other master agreements;
(ivxvii) each Contract that grants any rights of first refusal, rights of first negotiation or other similar rights to any Person with respect to an interestthe sale, ratetransfer, currency pledge or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess disposition of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 any business or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after that is material to the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or and its Subsidiaries, taken as a whole, or (B) any Subsidiary of the Company;
(vixviii) each Contract pursuant that would reasonably be expected to which prohibit or materially delay the Transactions; and
(xix) any other Contract that would reasonably be expected to involve payments by or to the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S1.0 million during any 12-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of month period after the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xixix) above is referred to herein as a “Company Material Contract.”.
(b) Except for any as set forth in Section 4.11(b) of the Company Material Contract that has terminated or expired in accordance with its terms Disclosure Schedule, and except as has not had, and would not reasonably be expected to haveas, individually or in the aggregate, have not had and would not have a Company Material Adverse Effect, : (i) each Company Material Contract is valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and is in full force and effect and enforceable against the Company or its Subsidiary in accordance with its terms subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights and to general equitable principles (whether considered in a proceeding in equity or at law); (ii) to the Knowledge of the Company, each Material Contract is valid and binding on the other parties thereto, is in full force and effect and enforceable against such other party in accordance with its terms subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights and to general equitable principles (whether considered in a proceeding in equity or at law); (iii) the Company and each of its Subsidiaries and, to the Knowledge of the Company, enforceable against the each other party thereto has performed in all material respects all obligations required to be performed by it to date under each Material Contract and is not in breach or parties thereto in accordance with its terms, subject default under such Material Contract; (iv) to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in Knowledge of the aggregate, a Company Material Adverse EffectCompany, neither the Company nor any of its SubsidiariesSubsidiaries has received written notice of default or breach under any Material Contract or of the existence of any event or condition which constitutes, nor or, after notice or with or without the lapse of time or both, will constitute, a default or breach or alleged default or breach on the part of the Company, or any of its Subsidiaries and, to the Knowledge of the Company, no such condition exists; and (v) to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received written notice from any other party to a Company Material Contract with respect to the termination, non-renewal or renegotiation in any material respect of the terms of, and, to the Knowledge of the Company, no such other party intends to terminate, not renew, or renegotiate in any material respect the terms of, any Material Contract, is in violation of or in default under any provision of such .
(c) The Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been has made available to Parent prior to Parent, as of the date of this Agreement, true and complete copies of (including all material amendments or modifications to), all Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Lmi Aerospace Inc)
Material Contracts. (a) Section 4.21(a) of the The Company Disclosure Letter sets forthhas heretofore made available to Parent true, as of the date of this Agreement, a correct and complete list copies of each all of the following types of Contracts written or oral contracts and agreements (and all amendments, modifications and supplements thereto and all side letters to which the Company or any of its Subsidiaries subsidiaries is a party affecting the obligations of any party thereunder) to which the Company or any of its subsidiaries is a party or by which any of their respective its properties or assets is bound:
are bound as of the date hereof: (i) each Contract that (A) limits material partnership or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
joint venture agreements; (ii) each Contract agreements that is a joint venture purport to materially limit, curtail or partnership agreement that is material to restrict the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets ability of the Company or any of its Subsidiaries after affiliates to compete in any geographic area or line of business; (iii) contracts or agreements that would be required to be filed as an exhibit to a Form 10-K filed by the Company with the SEC on the date hereof; (iv) except for intercompany and Ordinary Course Finance Agreements, all loan agreements, indentures, mortgages, pledges, conditional sale or title retention agreements, security agreements, guaranties, standby letters of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, credit (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” subsidiary is the responsible party), equipment leases or similar obligations that could result lease purchase agreements, each in payments in excess an amount of $1,000,000 in the aggregate;
25 million or more; (viiv) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act)other contracts, whether agreements, commitments or not filed other understandings or arrangements, except for Ordinary Course Finance Agreements and except for contracts, agreements, commitments or other understandings or arrangements involving individual payments or receipts by the Company with or any of its subsidiaries not exceeding $25 million over the SEC;
term of such contract, commitment, agreement or other understanding or arrangement; and (viiivi) commitments and agreements to enter into any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
foregoing (x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) collectively, together with any current (A) executive officer of such contracts entered into in accordance with Section 5.01 hereof, the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”"MATERIAL CONTRACTS").
(b) Except for any Each of the Material Contracts constitutes the valid and legally binding obligation of the Company Material Contract that has terminated or expired its subsidiaries, enforceable in accordance with its terms and (except as has not hadenforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors' rights or by general equity principles), and is in full force and effect. There is no default under any Material Contract either by the Company or, to the Company's knowledge, by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would not constitute a default thereunder by the Company or, to the Company's knowledge, any other party, in any such case in which such default or event does or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Effect on the Company.
(c) No party to any such Material Contract is valid and binding and in full force and effect and, has given notice to the Knowledge Company of the Company, enforceable or made a claim against the other party Company with respect to any breach or parties thereto default thereunder, in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations any such case in which such breach or defaults which have not had, and default does or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither Effect on the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementCompany.
Appears in 2 contracts
Sources: Merger Agreement (General Electric Capital Corp), Merger Agreement (Heller Financial Inc)
Material Contracts. (a) Except (i) for this Agreement, (ii) for the Contracts filed as exhibits to the Company SEC Reports prior to the date hereof, or (iii) as set forth in Section 4.21(a3.12(a) of the Company Disclosure Letter sets forthSchedule, as of the date hereof neither the Company nor any Company Subsidiary is party to or bound by any Contract:
(i) that contains covenants binding upon the Company or any of its Affiliates that materially restrict the ability of the Company or any of its Affiliates to compete in any business or in any geographic area that, in each case, are material to the Company and the Company Subsidiaries taken as a whole as of the date of this Agreement, a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholeexcept for leases;
(ii) each Contract that is a material partnership, joint venture or partnership agreement that similar Contract that, in each case, is material to the Company and its Subsidiaries, the Company Subsidiaries taken as a wholewhole as of the date of this Agreement;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between under which the Company and its wholly owned Subsidiaries) relating to or any Company Subsidiary is liable for indebtedness for borrowed money in an amount in excess of $1,000,000100,000;
(iv) each Contract with respect relating to an interest, rate, currency the provision by a third party of cellular or other swap or derivative transaction (other than those between satellite connectivity services to the Company and its Subsidiaries) with a fair value in excess of $1,000,000or any Company Subsidiary (whether provided directly to the Company or any Company Subsidiary, or provided for resale to their respective customers);
(v) each Contract that is an acquisition agreement relating to the supply or a divestiture agreement pursuant sale to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any Company Subsidiary of its Subsidiaries after the date any hardware product that sold in excess of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful 4,000 units in the conduct first six months of business of the Company or its Subsidiaries2017;
(vi) each Contract pursuant to under which the Company or any of its and the Company Subsidiaries has continuing “earn-out” or similar obligations that could result in the aggregate made payments in excess of $1,000,000 in 2016, or in excess of $500,000 in the aggregatefirst six months of 2017;
(vii) that by its terms calls for aggregate payments by the Company and the Company Subsidiaries under such Contract of more than $1,000,000 over the remaining term of such Contract (other than this Agreement, Contracts subject to clause (iii) above, purchase orders for the purchase of inventory and/or equipment in the ordinary course of business and leases);
(viii) that relates to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(ix) under which the Company and the Company Subsidiaries in aggregate received payments in excess of $500,000 in 2016, or in excess of $250,000 in the first six months of 2017;
(x) that by its terms calls for aggregate payments to the Company and the Company Subsidiaries under such Contract of more than $1,000,000 over the remaining term of such Contract (other than this Agreement or purchase orders for the purchase of inventory and/or equipment in the ordinary course of business); or
(xi) that is a lease, sublease or license in respect of any Leased Real Property (including any subleases of any Leased Real Property by the Company or any Company Subsidiary to any other Person), in each case providing for payments in excess of $50,000 per year. Each Contract (i) set forth (or required to be set forth) in Section 3.12(a) of the Company Disclosure Schedule and (ii) any Contract that is a “material contractMaterial Contract” (as such term is defined in Item 601(b)(106.01(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with of the SEC;
(viii) other than any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (eachPlan, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Each of the Company Material Contract that Contracts has terminated or expired in accordance with its terms and except as has not hadbeen duly executed, and would not reasonably be expected to haveis a legal, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding obligation of, and enforceable against, the Company or the Company Subsidiary that is a party thereto, and is in full force and effect and(other than any such failures to be in full force and effect on account of a party other than the Company or a Company Subsidiary). The Company or the Company Subsidiary that is a party to a Company Material Contract is in compliance, in all material respects, with all the terms and conditions of each Company Material Contract and no default or event of default or event, occurrence, condition or act, with respect to the Company or any Company Subsidiary exists that, with or without the giving of notice, the lapse of time or the happening of any other event or condition, would reasonably be expected give any third party the right to declare a material breach or an event of default or exercise any remedy under any Company Material Contract or cancel, terminate or materially modify any Company Material Contract, and (iii) neither the Company nor any Company Subsidiary has received any written or, to the Knowledge of the Company, enforceable against the other party oral, notice regarding any actual material violation or parties thereto in accordance with its termsbreach of, subject material default under, or intention to the Enforceability Exceptions. Except for breachescancel, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True True, correct and complete copies of the all Company Material Contracts Contracts, and any material all amendments thereto thereof, have been made available to Parent prior Parent.
(c) To the Knowledge of the Company, with respect to any Contracts between the Company and any Governmental Entity (each, a “Company Government Contract”), there is, as of the date hereof, neither an existing nor a reasonable basis for a: (i) civil fraud or criminal investigation by any Governmental Entity, (ii) qui tam action brought against the Company or any Company Subsidiary under the Civil False Claims Act, (iii) suspension or debarment proceeding (or equivalent proceeding) against the Company or any Company Subsidiary, (iv) claim or request by a Governmental Entity for a material contract price adjustment based on asserted defective pricing, disallowance of this Agreementcost or non-compliance with statute, regulation or contract, (v) material dispute involving the Company or any Company Subsidiary relating to such Company Government Contract, (vi) material claim or equitable adjustment by the Company or any Company Subsidiary relating to such Company Government Contract or (vii) termination of any Company Government Contract by any Governmental Entity for default or failure to perform.
Appears in 2 contracts
Sources: Merger Agreement (Numerex Corp /Pa/), Merger Agreement (Sierra Wireless Inc)
Material Contracts. (a) Section 4.21(a4.11(a) of the Company Sellers Disclosure Letter sets forthcontains a complete and accurate list, as of the date of this Agreementhereof, a correct and complete list of each of the following types Contracts (each Contract required to be set forth in Section 4.11(a) of Contracts the Sellers Disclosure Letter, a “Material Contract”) to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets the Purchased Companies is bounda party:
(i) each Contract that (A) limits or restricts License Agreement providing for guaranteed payments by the licensee in excess of [***] in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholecalendar years 2015 through 2017;
(ii) each Contract that is agent or similar agreement under which a joint venture Third Party has been granted the right to solicit License Agreements or partnership agreement that is material to syndication agreements for the Company and its Subsidiaries, taken as a wholeBusinesses;
(iii) each Contract that license agreement, including any software license agreements, under which any Purchased Company is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment licensee (other than letters “off-the-shelf” or other non-customized software or subscriptions generally commercially available for a license fee of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000no more than [***] per year);
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between License Agreements) providing for the Company and its Subsidiaries) sale, lease or other disposition at any time after the date hereof of tangible assets of the Businesses with a fair value in excess of $1,000,000[***];
(v) each Contract relating to the Businesses that is an acquisition agreement or a divestiture agreement pursuant to which (A) requires the expenditure of more than [***] by any Purchased Company reasonably expects that it is required to pay total consideration (including assumption of debt) in the aggregate after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiarieshereof;
(vi) each Contract pursuant written guaranty or other similar undertaking with respect to which the contractual performance granted by any Purchased Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in otherwise binding on the aggregateBusinesses;
(vii) each “material contract” (as such term is defined Contract granting a Third Party an exclusive license to rights in Item 601(b)(10) of Regulation S-K under the Securities Act)Peanuts IP Assets, whether or not filed by the Company with the SEC;other than immaterial licenses; and
(viii) each amendment, supplement or modification in respect of any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”foregoing.
(b) Except as set forth in Section 4.11(b) of the Sellers Disclosure Letter and except for any Company Material Contract those Contracts that has terminated or expired will, after the date hereof but prior to Closing, expire in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effecttheir terms, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, and is valid and enforceable against the other party or parties thereto in accordance with its terms, subject except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws relating to creditors’ rights generally or by equitable principles or by any other laws of general application.
(c) Except as set forth in Section 4.11(c) of the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor Sellers Disclosure Letter:
(i) to the Knowledge of the Sellers, each Seller and Purchased Company is in compliance, in all material respects, with the terms and requirements of each Material Contract;
(ii) to the Knowledge of the Sellers, no event has occurred or circumstance exists that (with or without notice or lapse of time) does or would reasonably be expected to contravene, conflict with, or result in a violation or breach of, or gives or would give any other Person the right to declare a default under, or to accelerate the maturity or performance of, any Material Contract; *** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.
(iii) neither any Seller nor any Purchased Company has received from any Person, at any time since January 1, 2015, any written notice or other communication regarding any actual, alleged, possible or potential violation or breach of, or default under, any Material Contract that would be reasonably expected to result in material costs or liabilities to any Purchased Company;
(iv) to the Knowledge of the Sellers, no party to a any Material Contract in effect on the date hereof has given to any Purchased Company, and no Purchased Company has given, written notice of its intention to cancel, terminate or fail to renew any Material Contract; and
(v) there are no renegotiations of, is or attempts to renegotiate or outstanding rights to renegotiate, any material amounts paid or payable to any Purchased Company under any current or completed Material Contract in violation effect on the date hereof with any Person having the contractual or statutory right to demand or require such renegotiation, and no such Person has made any written demand for such renegotiation.
(d) No Purchased Company has entered into any Material Contract with respect to which the performance thereunder by any of them, acting alone or in default under connection with any provision other Person, or the payment or promise of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreementconsideration thereunder, would violate any Law or Order.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Iconix Brand Group, Inc.), Membership Interest Purchase Agreement (Iconix Brand Group, Inc.)
Material Contracts. (a) Section 4.21(a4.10(a) of the Company Disclosure Letter Schedules sets forth, as of the date of this Agreement, a correct and complete list of forth each of the following types Contracts (x) by which any of Contracts the Purchased Assets are bound or affected or (y) to which the Company or any of its Subsidiaries 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 Leased Real Property (including, brokerage contracts) listed or otherwise disclosed in Section 4.13(a) of their respective properties or assets is bound:the Disclosure Schedules and all Intellectual Property Agreements listed in Section 2.01(d) of the Disclosure Schedules, being “Material Contracts”):
(i) all Contracts involving aggregate consideration in excess of $10,000 and which, in each Contract that case, cannot be cancelled without penalty or without more than ten (A10) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholedays’ notice;
(ii) each Contract all Contracts that is require Seller to purchase or sell a joint venture stated portion of the requirements or partnership agreement outputs of the Business or that is material to the Company and its Subsidiaries, taken as a wholecontain “take or pay” provisions;
(iii) each Contract all Contracts that is a loanprovide for the indemnification of any Person or the assumption of any Tax, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture environmental or other binding commitment (other than letters Liability of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000any Person;
(iv) each Contract with respect all Contracts that relate to an interestthe acquisition or disposition of any business, ratea material amount of stock or assets of any other Person or any real property (whether by merger, currency sale of stock, sale of assets or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000otherwise);
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market value or purchase price of more than $1,000,000research, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s marketing consulting and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiariesadvertising Contracts;
(vi) each Contract pursuant to which the Company all employment agreements and Contracts with independent contractors or any of its Subsidiaries has continuing “earn-out” consultants (or similar obligations arrangements) which are not cancellable without material penalty or without more than ten (10) days’ notice and all non-competition, non-solicitation and confidentiality agreements from current and former independent contractors, consultants and employees of Seller that could result are currently in payments in excess of $1,000,000 in the aggregateeffect;
(vii) each “material contract” except for Contracts relating to trade receivables, all Contracts relating to indebtedness (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Actincluding guarantees), whether or not filed by the Company with the SEC;
(viii) all Contracts with any Contract governing a Related Party Transaction Governmental Authority (as defined below“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of Seller to compete in any registration rights agreements line of business or with respect to securities any Person or in any geographic area or during any period of the Companytime;
(x) all joint venture, partnership or similar Contracts;
(xi) all Contracts for the sale of any employment of the Purchased Assets or consulting Contract 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;
(in each case xii) all powers of attorney with respect to which the Company has continuing obligations as of the date hereofBusiness or any Purchased Asset;
(xiii) all collective bargaining agreements or Contracts with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000Union; and
(xixiv) any all other Contract or series of related Contracts under which it would reasonably be expected that are material to the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period Purchased Assets or the remaining period of such Contract, if shorter. Each Contract operation of the type described in clauses (i) through (xi) is referred Business and not previously disclosed pursuant to herein as a “Company Material Contract”this Section 4.10.
(b) Except for any Company Each Material Contract that has terminated or expired is valid and binding on Seller in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge effect. None of the Company, enforceable against the other party Seller or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party thereto is in breach of or default under (or is alleged to a Company be in breach of or default under) in any material respect, or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, is in violation with notice or lapse of time or in both, would constitute an event of default under any provision Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of such Company Material Contractany right or obligation or the loss of any benefit thereunder. True Complete and complete correct copies of the Company each Material Contracts Contract (including all modifications, amendments and any material amendments supplements thereto and waivers thereunder) have been made available to Parent prior to Buyer. There are no material disputes pending or threatened under any Contract included in the date of this AgreementPurchased Assets.
Appears in 2 contracts
Sources: Asset Purchase Agreement (P&f Industries Inc), Asset Purchase Agreement (P&f Industries Inc)
Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter sets forth, as of the date For purposes of this Agreement, a correct and complete list of “Material Contract” means each of the following types Contracts (excluding in each case any purchase order entered into by the Company or any of Contracts its Subsidiaries in the ordinary course of business consistent with past practice) which is currently in effect and to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is are bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities ActSEC, other than those agreements and arrangements described in Item 601(b)(10)(iii), whether or not filed by ) with respect to the Company with the SECand its Subsidiaries;
(viiiii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of other than at-will offer letters on the Company;
’s standard form containing no severance provisions or consulting Contracts which may be cancelled on less than ninety (x90) days’ notice without penalty to the Company, any employment or consulting independent contractor Contract (in each case with respect to case, under which the Company has continuing obligations as of the date hereof) with any current or former executive officer, consultant or employee of the Company or its Subsidiaries or member of the Company Board providing for an annual base compensation in excess of $100,000;
(iii) any Contract or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the consummation of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement (including the Merger);
(iv) any Collective Bargaining Agreement or other similar Contract with a Labor Organization;
(v) any Contract (excluding, for the avoidance of doubt, any purchase order) with any Significant Customer or any Significant Supplier providing for indemnification or any guaranty (in each case, under which the Company has continuing obligations as of the date hereof), other than (A) executive officer any guaranty by the Company of any of its Subsidiaries’ obligations or (B) any Contract providing for indemnification entered into in connection with the distribution, sale or license of services or hardware or software products in the ordinary course of business consistent with past practice, which indemnification does not materially differ from the provisions embedded in Company’s standard terms of sale as provided or made available to Parent;
(vi) any Contract containing any covenant, commitment or other obligation (A) limiting the right of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person in any line of business, (B) granting any exclusive rights to any third party, (C) containing a “most favored nation” or similar provision that would affect more than 1% of the Company’s aggregate annual revenues (based solely on the fiscal year ended December 31, 2014) or the provisions of which would be applicable to Parent after the Effective Time, (D) including any “take or pay” or “requirements” obligation, (E) prohibiting the Company or any of its Subsidiaries (or, after the Effective Time, Parent) from engaging in business with any Person or levying a fine, charge or other payment for doing so (other than any prohibition pertaining to the non-solicitation of employees) or (F) otherwise prohibiting or limiting the right of the Company or its Subsidiaries to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or subassemblies, in the case of each of clauses (A) through (F) other than any such Contracts that may be cancelled without liability to the Company or its Subsidiaries of more than $200,000 and upon notice of ninety (90) days or less;
(vii) any Contract (A) relating to the license, disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a material amount of assets other than in the ordinary course of business, (B) pursuant to which the Company or any of its Subsidiaries will acquire any material ownership interest in any other Person or other business enterprise other than the Company’s Subsidiaries or (C) relating to the formation, control or operation of any joint venture;
(viii) any Contract for the acquisition or disposition of any business containing any continuing (A) profit sharing arrangements or “earn-out” arrangements or (B) indemnification or similar contingent payment obligations;
(ix) any joint marketing or development agreements under which the Company or any of its Subsidiaries have continuing obligations or costs in excess of $200,000 per year, to jointly market any product, technology or service, and which may not be canceled without penalty upon notice of ninety (90) days or less;
(x) any material outsourcing Contracts (including material Contracts to assemble, manufacture and package any Company Product) other than Contracts between the Company and a Significant Supplier;
(xi) Based upon amounts paid or received thereunder during the most recent completed fiscal year of the Company, (A) any Contract between the Company and any Significant Customer, (B) member the top five (5) distributor contracts, (C) any Contract between the Company and any Significant Supplier, (D) the top three (3) development contracts, and (E) the top five (5) sales representative contracts;
(xii) The top five (5) Contracts (based upon amounts paid thereunder during the most recent completed fiscal year of the Company, and excluding, for the avoidance of doubt, any purchase order) containing any service obligation on the part of the Company Boardor any of its Subsidiaries (as measured by continuing costs to be incurred by the Company or any of its Subsidiaries in connection with those services);
(xiii) any Contract that is required to be listed in Section 3.22(c) of the Company Disclosure Letter;
(xiv) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money by, or extension of credit to, the Company or any of its Subsidiaries, other than (CA) accounts receivables and payables in the ordinary course of business consistent with past practice and (B) loans to direct or indirect wholly-owned Subsidiaries;
(xv) any mortgage, lease, loan or other material Contract relating to any sale leaseback transaction of any real property previously owned by the Company Employee providing for an annual base salary or any of its Subsidiaries;
(xvi) any Leases;
(xvii) any Contract entered into since January 1, 2013 to settle a Legal Proceeding other than (A) releases entered into with former employees or independent contractors of the Company which do not contain cash settlements in excess of $250,000300,000 or (B) settlement agreements for cash only (which has been paid) and does not exceed $300,000 as to such settlement; and
(xixviii) any other material Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during with any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Governmental Entity.
(b) Except for any Section 3.11(b) of the Company Disclosure Letter contains a list that is complete and accurate in all material respects as of the date hereof of all Material Contract that has terminated or expired in accordance with its terms and except as has not hadContracts, and would not reasonably be expected identifies each subsection of Section 3.11(a) that describes such Material Contract. The Company has delivered or made available to have, individually or in the aggregate, a Company Parent complete and correct copies of each such Material Adverse Effect, each Company Contract.
(c) Each Material Contract is valid and binding on the Company (and/or each such Subsidiary of the Company, as the case may be) and is in full force and effect andeffect, and neither the Company nor any of its Subsidiaries party thereto, nor, to the Knowledge of the Company, enforceable against the any other party thereto, is in breach of, or parties thereto in accordance default under any such Material Contract, and no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder by the Company or any of its termsSubsidiaries, subject or, to the Enforceability Exceptions. Except for breachesKnowledge of the Company, violations or defaults which have any other party thereto, except in each of the foregoing cases as is not had, and would not reasonably be expected to havebe, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole. As of the date hereof, neither the Company nor any of its SubsidiariesSubsidiaries has received any written notice or other written communication regarding any actual or possible violation or breach of or default under, nor or intention to the Knowledge of the Company cancel or modify, any other party to a Company Material Contract, except as is in violation of not and would not reasonably be expected to be, individually or in default under any provision of such Company Material Contract. True and complete copies of the aggregate, material to the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreementits Subsidiaries, taken as a whole.
Appears in 2 contracts
Sources: Merger Agreement (Microchip Technology Inc), Merger Agreement (Micrel Inc)
Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter sets forthAll Contracts, including amendments thereto, required to be filed as of the date of this Agreementexhibits to any Dodgers SEC Documents filed after January 1, a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on2025, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not Exchange Act have been so filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof, and no such Contract has been amended or modified (or further amended or modified, as applicable) that would require a filing pursuant to Item 601(b)(10) of Regulation S-K since the date such Contract or amendment was filed. To the extent any such Contracts were filed in redacted form (including any omission of exhibits, schedules or other attachments), Dodgers has made available to Cubs correct and complete copies thereof (including all material amendments, modifications, extensions or renewals with any current respect thereto and all exhibits, schedules and other attachments).
(Ab) executive officer Other than the Contracts set forth in clause (a) above, Section 3.10(b) of the CompanyDodgers Disclosure Letter sets forth a correct and complete list, and Dodgers has made available to Cubs correct and complete copies (B) member including all material amendments, modifications, extensions or renewals with respect thereto), of each of the Company Boardfollowing Contracts (other than any Dodgers Benefit Plans) to which Dodgers or any of the Dodgers Subsidiaries is a party or bound as of the date hereof:
(i) any Contract which is between Dodgers or any of the Dodgers Subsidiaries, on the one hand, and any of their respective officers, directors or principals (Cor any such Person’s Affiliates) Company Employee providing for an or any Person that holds or owns five percent (5%) or more of the shares of Dodgers’ capital stock (or any Affiliates of any such Person), on the other hand, involving aggregate annual base salary payments in excess of $250,000; and120,000, other than compensation arrangements with the directors on the Dodgers Board in their capacity as such;
(xiii) any other each Contract or series Dodgers Organizational Document that would, on or after the Closing Date, prohibit or restrict the ability of related Contracts under which it would reasonably be expected that the Company and Dodgers or any of its Subsidiaries would receive annual payments (including the Surviving Corporation or any of its Subsidiaries) to declare and pay dividends or distributions with respect to their capital stock, pay any Indebtedness for borrowed money, obligations or liabilities from time to time owed to Dodgers or any of its Subsidiaries (including the Surviving Corporation or any of its Subsidiaries), make loans or advances or transfer any of its properties or assets;
(iii) each Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that (A) materially restricts the ability of Dodgers or any of the Dodgers Subsidiaries to (x) compete in any material line of business or material geographic area or with any Person during any period of time after the Effective Time or (y) make, sell or distribute any material products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets or properties or (B) could require the disposition of any material assets or line of business of Dodgers or any of the Dodgers Subsidiaries;
(iv) each Contract that creates, evidences, provides commitments in respect of, secures or guarantees (A) Indebtedness for borrowed money in any amount in excess of $7,000,000 50,000,000 or more (eachB) other Indebtedness (other than obligations under a Derivative Product or any guarantee or other credit support thereof) of Dodgers or any of the Dodgers Subsidiaries (whether incurred, a “Revenue Contract”assumed, guaranteed or secured by any asset) or make annual payments in excess of $5,000,000 or more50,000,000, other than, in each case, during agreements solely between or among Dodgers and the Dodgers Subsidiaries;
(v) any twelve Labor Agreement; or
(12vi) month period any Contract relating to any pending acquisition or divestiture pursuant to which the remaining period of such Contract, if shorter. Each Contract of the type aggregate consideration (whether in cash or otherwise) is equal to or greater than $150,000,000.
(c) The Contracts described in the foregoing clauses (ia) and (b), together with all exhibits and schedules to such Contracts, as amended through (xi) is the date hereof or as hereafter amended in accordance with Section 4.2 hereof, are referred to herein as a “Company Dodgers Material ContractContracts.”.
(bd) Except for any Company Each Dodgers Material Contract that has terminated is valid and binding on Dodgers or expired the Dodgers Subsidiary party thereto, as the case may be, and, to the Knowledge of Dodgers, each other party thereto, and is in full force and effect in accordance with its terms terms, except for (i) terminations or expirations at the end of the stated term or (ii) such failures to be valid and except binding or to be in full force and effect as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Dodgers Material Adverse Effect, in each Company Material Contract case subject to Enforceability Exceptions.
(e) Neither Dodgers nor any of the Dodgers Subsidiaries is valid and binding and in full force and effect breach of, or default under the terms of, and, to the Knowledge of the CompanyDodgers, enforceable against the no other party to any Dodgers Material Contract is in breach of, or parties thereto default under the terms of, any Dodgers Material Contract, nor is any event of default (or similar term) continuing under any Dodgers Material Contract, in accordance with its termseach case where such breach, subject to the Enforceability Exceptions. Except for breaches, violations default or defaults which have not had, and event of default (or similar term) would not reasonably be expected to have, individually or in the aggregate, a Company Dodgers Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Coterra Energy Inc.), Merger Agreement (Coterra Energy Inc.)
Material Contracts. (a) Section 4.21(a5.17(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of each of Schedule lists the following types of Contracts contracts and agreements to which the Company or any of its Subsidiaries Subsidiary is a party or by which any (such contracts and agreements as are required to be set forth in Section 5.17(a) of their respective properties or assets is bound:the Disclosure Schedule being the “Material Contracts”):
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10610(b)(10) of Regulation S-K of the SEC) with respect to the Company and its Subsidiaries;
(ii) each material Hydrocarbon Contract;
(iii) each material license and permit required under applicable Law in connection with the Securities Act)conduct of oil and gas exploration and production by the Company and the Subsidiaries;
(iv) each material Software license relating to primary geological and financial processes to which the Company or any Subsidiary is subject;
(v) each contract and agreement, whether or not filed by made in the Company ordinary course of business, that contemplates an exchange of consideration with a value of more than US$200,000, in the SECaggregate, over the term of such contract or agreement;
(vi) all contracts and agreements evidencing indebtedness in excess of US$200,000;
(vii) all joint venture, partnership, strategic alliance and business acquisition or divestiture agreements (and all letters of intent, term sheets and draft agreements relating to any such pending transactions);
(viii) all agreements relating to issuances of securities of the Company or any Contract governing a Related Party Transaction Subsidiary (as defined belowand all letters of intent, term sheets and draft agreements relating to any such pending transactions);
(ix) all framework agreements to which the Company or any registration rights agreements with respect Subsidiary is a party relating to securities purchases of goods or services from the CompanyCompany or any Subsidiary;
(x) any employment or consulting Contract (in each case with respect all exclusive distribution contracts to which the Company has continuing obligations as or any Subsidiary is a party;
(xi) all leases of real property leased for the use or benefit of the date hereofCompany or any Subsidiary requiring rental payments in excess of US$200,000 over the period of the lease;
(xii) all contracts relating in whole or in part to Intellectual Property pursuant to which the Company or any Subsidiary obtains from any third party any material Intellectual Property rights or the right to manufacture, distribute or sell any product of the Company or such third party;
(xiii) all contracts relating in whole or in part to Intellectual Property pursuant to which the Company or any Subsidiary grants to any third party any material Intellectual Property rights or the right to manufacture, distribute or sell any product of the Company or such third party;
(xiv) all management contracts (excluding contracts for employment) and contracts with other consultants, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Subsidiary or income or revenues related to any product of the Company or any Subsidiary to which the Company or any Subsidiary is a party;
(xv) all contracts and agreements with any current Governmental Authority to which the Company or any Subsidiary is a party;
(Axvi) executive officer all contracts and agreements that limit, or purport to limit, the ability of the Company or any Subsidiary to compete in any line of business or with any Person or entity or in any geographic area or during any period of time;
(xvii) all contracts and agreements providing for benefits under any Plan;
(xviii) all material contracts or arrangements that result in any Person or entity holding a power of attorney from the Company or any Subsidiary that relates to the Company, any Subsidiary or their respective businesses;
(Bxix) member all agreements related to professional services rendered to the Company or any Subsidiary in connection with the Transactions;
(xx) all contracts for employment required to be listed in Section 5.10 of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000Disclosure Schedule; and
(xixxi) any all other Contract contracts and agreements, whether or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or made in the aggregateordinary course of business, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, which are material to the Knowledge of the Company, enforceable against any Subsidiary or the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any conduct of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreementtheir businesses.
Appears in 2 contracts
Sources: Investment Agreement (United Energy Group LTD), Investment Agreement (United Energy Group LTD)
Material Contracts. Except as provided in this Section 6.5, Schedule 6.5 lists all of the following Contracts to which any of the Companies has any rights or benefits or undertakes any obligations or liabilities (collectively, the “Material Contracts”):
(a) Section 4.21(a) of Contracts, the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list performance of each of the following types of Contracts which is expected to which the Company involve consideration payable or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material receivable subsequent to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 50,000, including Contracts for the payment of commissions and other similar compensation to brokers, agents, producers and similar sales representatives;
(b) Contracts which restrict in any material respect or contain or purport to contain material limitations on the ability of any of the Companies to freely conduct business in the United States;
(Bc) Contracts under which any of the Companies have borrowed money or guaranteed borrowings of money;
(d) third party administration agreements;
(e) Contracts with Sellers or any of their Affiliates (other than the Companies);
(f) Contracts pursuant to which any Lien, other than Permitted Liens, is placed or imposed on any asset of any of the Companies;
(g) employment Contracts and employee severance or retention Contracts, to the extent not listed on Schedule 5.9;
(h) partnership or joint venture Contracts;
(i) leases and subleases of real property;
(j) any indemnification Contract or guarantee;
(k) independent contractor and consulting agreements;
(l) Contracts that provide for supplemental capitation payments to dentists and other providers of dental services;
(m) Contracts that provide for any of the Companies to cede or reinsure any insurance obligations; or
(n) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under promulgated pursuant to the Securities Act), whether or ) not filed by terminable upon 90 days written notice. Schedule 6.5 excludes the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities Insurance Policies of the Company;
(x) any employment Companies issued or consulting Contract (administered in each case with respect the ordinary course of business, licenses and other agreements related to which the Company has continuing obligations use of Computer Programs, and the Related Agreements. Except as set forth in Schedule 6.5, all of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Material Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and are in full force and effect and valid, binding and enforceable upon and against the Companies (to the extent a party thereto) and, to the Knowledge knowledge of Sellers, upon each of the Company, enforceable against the other party or parties thereto in accordance with its termsand, to the knowledge of Sellers and subject to obtaining any required consents of the Enforceability Exceptionscounterparties thereto will continue to be following the Closing. Except for breachesNone of the Companies or, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge knowledge of the Company Sellers, any other party to a Company Material Contractparty, is in violation breach of or in default under any provision of such Company Material Contract. True , and complete copies no event has occurred which, with the passage of time or giving of notice or both, would result in any of the Company Companies or, to the knowledge of Sellers, any of the other parties to the Material Contracts and being in material default under any material amendments of the Material Contracts, except as identified on Schedule 6.5. Except as set forth on Schedule 6.5, none of the Material Contracts requires the consent of any other party thereto in connection with the transactions contemplated hereby. Sellers have been made available to Parent prior to Purchaser a true and correct copy of each contract and instrument listed in Schedule 6.5. Each of the date of this AgreementCommission Agreements, the Customer Agreements and the Provider Agreements (as such agreements are identified and defined in Schedule 6.5) is in form and substance customary and reasonable for the dental, life and disability insurance industries, as applicable.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Protective Life Insurance Co), Stock and Asset Purchase Agreement (Protective Life Corp)
Material Contracts. (a) Except for (i) this Agreement, (ii) contracts filed as exhibits to the Company SEC Documents filed prior to the date hereof, and (iii) contracts that are by and among only the Company and any wholly owned Company Subsidiary or among wholly owned Company Subsidiaries, Section 4.21(a4.16(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, forth a correct and complete list of each of the following types of Contracts contract, oral or written, to which the Company, any Company Subsidiary or any of its Subsidiaries Company JV is a party or by which any of them or any of their respective properties or assets is boundare bound (other than Company Landlord Leases, Company Tenant Leases and other Company Permitted Liens) which, as of the date hereof:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration be filed with the SEC pursuant to Item 601(b)(2), (including assumption of debt4), (9) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(1010) of Regulation S-K under the Securities Act;
(ii) is required to be described pursuant to Item 404 of Regulation S-K under the Securities Act;
(iii) obligates the Company or any Company Subsidiary to make any non-contingent expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations), whether except for (A) any contract which provides for routine property-level maintenance or service and is terminable upon not filed more than sixty (60) days’ notice without a material penalty or premium, and (B) any contracts which obligate the Company or any Company Subsidiary to make aggregate annual expenditures of not more than $3,000,000; provided that the unexpired term of such contract is not more than five (5) years;
(iv) contains any material non-compete or material exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any Company JV, or, upon consummation of the Merger and the other transactions contemplated hereby, Parent or Parent Subsidiaries, or which materially restricts the conduct of any business conducted by the Company. any Company Subsidiary, any Company JV or any geographic area in which the Company, any Company Subsidiary or any Company JV may conduct business;
(v) evidences Indebtedness of the Company, any Company Subsidiary or any Company JV to any Person, or any guaranty thereof, in excess of $10,000,000;
(vi) is a settlement, conciliation, or similar contract that imposes any material monetary or non-monetary obligations upon the Company, any Company Subsidiary or any Company JV after the date of this Agreement;
(vii) (A) requires the Company, any Company Subsidiary or any Company JV to dispose of or acquire assets or properties (other than in connection with the SECexpiration of a Company Landlord Lease or Company Tenant Lease pursuant to the terms thereof), (B) gives any Company Third Party the right to buy any Company Property or obligates the Company or any Company Subsidiary or any Company JV to acquire, sell or enter into any lease for any real property, or (C) involves any material pending or contemplated merger, consolidation or similar business combination transaction;
(viii) relates to a joint venture, partnership, strategic alliance or similar arrangement that is material to the Company or relates to or involves a sharing of a material amount of revenues, profits, losses, costs or liabilities by the Company, any Contract governing a Related Party Transaction (as defined below)Company Subsidiary or any Company JV with any Person;
(ix) any registration rights agreements with respect to securities contains restrictions on the ability of the CompanyCompany or any Company Subsidiary or any Company JV to pay dividends or other distributions (other than pursuant to any Company Governing Documents or any Company Subsidiary Governing Documents or any organizational documents of any Company JV);
(x) is material to the Company and is with a Governmental Authority; or
(xi) constitutes a loan to any employment Person (other than a wholly owned Company Subsidiary) by the Company or consulting Contract any Company Subsidiary (other than advances or rent relief made under the Company Landlord Leases or grants of relief as to the timing for the payment of rent in each case the ordinary course of business in connection with or pursuant to the Company Landlord Leases or pursuant to any disbursement agreement, development agreement or development addendum entered into in connection with a Company Landlord Lease with respect to the development, construction or equipping of the Company Properties or the funding of improvements to the Company Properties).
(b) Each contract in any of the categories set forth in Section 4.16(a)(i) through (xii) to which the Company has continuing obligations or any Company Subsidiary is a party or by which it is bound as of the date hereof) with , including any current (A) executive officer of the Company, (B) member of contracts filed as exhibits to the Company BoardSEC Documents prior to the date hereof, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.” For the avoidance of doubt, the term “Company Material Contract” does not include any Company Landlord Leases or Company Tenant Leases.
(bc) Except for any Company Material Contract that has terminated as, individually or expired in accordance with its terms and except as the aggregate, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, : (i) each Company Material Contract is valid and legal, valid, binding and in full force enforceable on the Company and effect each Company Subsidiary that is a party thereto and, to the Knowledge of the Company, enforceable against the each other party thereto, and is in full force and effect, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or parties thereto other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in accordance with its terms, subject a proceeding in equity or at Law); (ii) the Company and each Company Subsidiary has performed all obligations required to be performed by it prior to the Enforceability Exceptionsdate hereof under each Company Material Contract and, to the Knowledge of the Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof; and (iii) neither the Company nor any Company Subsidiary, nor, to the Knowledge of the Company, any other party thereto, is in material breach or violation of, or default under, any Company Material Contract, and no event has occurred that, with notice or lapse of time or both, would constitute a violation, breach or default under any Company Material Contract. Except Neither the Company nor any Company Subsidiary has received written notice of any violation or default under any Company Material Contract, except for breaches, violations or defaults which that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has received written notice of termination under any Company Material Contract, and, to the Knowledge of the Company, no party to any Company Material Contract has threatened to cancel any Company Material Contract, except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Diversified Healthcare Trust), Merger Agreement (Office Properties Income Trust)
Material Contracts. (a) Section 4.21(a4.20(a) of the Company Disclosure Letter Schedule sets forthforth a list of all Contracts, as including all amendments and supplements thereto, to which any of the date of this AgreementPurchased Assets are, a correct or the Business is, bound or affected and complete list of each to which any of the following types of Contracts to which the Company or any of its Subsidiaries AUC Entities is a party or by which any of their respective properties or assets the AUC Entities is bound:, in each case, in connection with, relating to, or arising out of the Business or the Purchased Assets, meeting any of the descriptions set forth below (collectively referred to herein as the “Material Contracts”):
(i) each Contract that all Contracts or group of related Contracts with the same party for the purchase of products or services, under which any of the AUC Entities reasonably may be expected to purchase $75,000 or more of products or services during the twelve (A12) limits or restricts in any material respect months from the Company Closing Date and its Subsidiaries from competing in any line of business with any Person in any geographic region or which cannot be terminated on less than sixty (B60) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholedays notice without penalty;
(ii) each Contract that all employment Contracts (excluding Contracts with faculty) pursuant to which the annual base salary for an employee is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a wholegreater than $100,000;
(iii) each Contract that is a loanany Contracts (excluding Contracts with faculty) with employees, guarantee of indebtedness consultants, directors or credit agreementindependent contractors containing severance, notenoncompetition, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000proprietary rights provisions;
(iv) each Contract all Contracts with respect to an interest, rate, currency or other swap or derivative transaction (other than those between faculty of the Company and its Subsidiaries) with a fair value in excess of $1,000,000Institution;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) all personal property leases involving payment obligations over the Company reasonably expects that it is required to pay total consideration (including assumption remaining term of debt) after the date of this Agreement to be lease in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries50,000;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregateall capitalized leases;
(vii) each all Contracts pursuant to which any of the AUC Entities has been granted a license or otherwise uses any other Person’s Intellectual Property (other than off-the-shelf software subject solely to “material contractshrink-wrap” or non-negotiable licenses) (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act“Licenses”), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below)all Contracts with Governmental Authorities;
(ix) any registration rights agreements Contract that creates a partnership or joint venture, or a similar agreement involving a sharing of profits, losses, costs or liabilities with respect to securities of the Companyany other Person;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as that restricts any of the date hereof) AUC Entities from engaging, or competing with any current (A) executive officer Person, in any line of business in any geographic area or restricts any of the Company, AUC Entities from soliciting certain employees;
(Bxi) member all Contracts (or group of related Contracts) under which any of the Company BoardAUC Entities has created, incurred, assumed, or guaranteed any Indebtedness;
(Cxii) Company Employee providing any Contract, whether or not fully performed, relating to any acquisition or disposition of any shares of capital of any AUC Entity or any predecessor in interest of any AUC Entity, or any acquisition or disposition of any subsidiary, division or line of business;
(xiii) any Contract with or relating to any clinical site;
(xiv) except as contemplated in connection with this Agreement, any Contract relating to the acquisition by any AUC Entity of any operating business, assets or capital stock of another Person;
(xv) all Contracts for an annual base salary capital expenditures in excess of $250,000; and25,000;
(xixvi) all Contracts with a contractor for services, sales representative, distributor, dealer, broker, sales agency, advertising agency or other Person engaged in sales, distributing or promotional activities, or any other Contract or series to act as one of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments foregoing on behalf of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or moreany Person, in each case, during any twelve (12) month period or involving payment obligations over the remaining period of such Contract, if shorter. Each Contract term of the type described Contract in clauses excess of $50,000;
(ixvii) through except as referenced in Section 4.23, any Contract that requires the payment of royalties, commissions, finders’ fees or similar payments involving payment obligations over the remaining term of the Contract in excess of $50,000; and
(xixviii) any settlement or similar Contract under which any of the AUC Entities has remaining obligations;
(xix) all powers of attorney or agency agreements with any Person given by any of the Sellers that are currently effective and outstanding pursuant to which such Person is referred granted the authority to herein as a “Company Material Contract”act for or on behalf of any AUC Entity or any AUC Entity is granted the authority to act for or on behalf of any Person, other than Tax powers of attorney, granted in the Ordinary Course of Business; and
(xx) any other Contract material to the Business, the Purchased Assets or any of the AUC Entities.
(b) Except for any Company The Sellers have made available to the Buyers in the Dataroom (i) a true, complete and correct copy of each written Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, (ii) a Company Material Adverse Effect, summary of each Company oral Material Contract is valid and binding and in full force and effect andprior to the Closing Date. None of the AUC Entities nor, to the Knowledge of the CompanySellers, enforceable against the any other party to any Material Contract, is in breach of, or parties thereto in default under, any Material Contract. To the Knowledge of the Sellers, there is no event or condition that with notice or lapse of time, or both, would constitute such a breach or default; and none of the AUC Entities has received any written notice of any breach or default or event that with notice or lapse of time, or both, would constitute such a breach or default by any of the AUC Entities. To the Knowledge of the Sellers, there have been no threatened cancellations of, or any dispute under, any Material Contract nor, to the Knowledge of the Sellers, does there exist the basis for any such cancellation or dispute. Each Material Contract is in full force and effect, and is valid and enforceable in accordance with its respective terms, subject to the Enforceability Exceptions. effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a Legal Proceeding in equity or at Law).
(c) Except for breachesas set forth on Section 4.20(c) of the Disclosure Schedule, violations the applicable AUC Entity has the right to assign to the Buyers each Purchased Contract without notice, modification, cancellation or defaults which consent, or if such notice or consent is required, the AUC Entities have not hadgiven notices to the third parties and used commercially reasonable efforts to obtain the third party consents set forth on Section 4.20(c) of the Disclosure Schedule, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor such transfer will provide to the Knowledge Buyers all of the Company any other party to a Company rights of the applicable AUC Entity under such Material Contract, is in violation free and clear of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementLiens, other than Permitted Liens.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Devry Inc), Asset Purchase Agreement (Devry Inc)
Material Contracts. (a) Except for this Agreement and the Contracts disclosed in the Filed Parent SEC Documents, Section 4.21(a5.15(a) of the Company Parent Disclosure Letter sets forthforth a true and complete list, as of the date of this Agreement, a correct and Parent has made available to the Company true and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundcopies, of:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken would be required to be filed by Parent as a whole“material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Contract that to which Parent or any Parent Subsidiary is a joint venture party that (A) restricts the ability of Parent or partnership agreement any Parent Subsidiary to compete in any business or with any Person in any geographical area, (B) requires Parent or any Parent Subsidiary to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of any third party, except in the case of each of clauses (A), (B) and (C) for such restrictions, requirements and provisions that is are not material to Parent and the Company and its Parent Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness under which Parent or credit agreement, note, bond, mortgage, indenture any Parent Subsidiary licenses Intellectual Property from or other binding commitment to any third party (other than letters (A) generally commercially available, off-the-shelf software programs and (B) non-exclusive licenses in the ordinary course of credit business), except for such licenses and those between sublicenses that are not material to Parent and the Company and its wholly owned Parent Subsidiaries, taken as a whole;
(iv) any Contract pursuant to which Parent or any Parent Subsidiary will acquire any material ownership interest in any other Person or other business enterprise other than any Parent Subsidiary, in each case, with a value greater than $1,000,000 after the date of this Agreement;
(v) each Contract that constitutes a commitment relating to indebtedness for borrowed money or the deferred purchase price of property by Parent or any Parent Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in an amount excess of $1,000,000, other than agreements solely between or among Parent and any Parent Subsidiaries;
(vi) each Contract for a Derivative Transaction;
(vii) each Contract to which Parent or any Parent Subsidiary is a party that provides for annual payments, receipts or expenditures in excess of $1,000,000;
(ivviii) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each any Contract that is an acquisition a settlement, conciliation or similar agreement with any Governmental Authority or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) Parent or any Parent Subsidiary will have any material obligations after the date of this Agreement to be in excess Agreement;
(ix) each collective bargaining agreement and other Contract with any labor union, works council, or other labor organization respecting employees of $1,000,000 Parent or any Parent Subsidiary;
(Bx) each Contract with or binding upon Parent or any other Person has the right to acquire any assets of the Company Parent Subsidiary or any of its Subsidiaries after the date of this Agreement with a fair market value their respective properties or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct assets that is of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets type that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant would be required to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in be disclosed under Item 601(b)(10) 404 of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract to which Parent or series any Parent Subsidiary is a party that is for the employment or engagement of related Contracts under which it would reasonably be expected that the Company any person on a full-time or part-time basis, including directors, employees and its Subsidiaries would receive independent contractors and employees at annual payments compensation in excess of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter1,000,000. Each such Contract of the type described in clauses (i) through (xi) above is referred to herein as a “Company Material Parent Specified Contract.”.
(b) Except for any Company Material Contract that has terminated As of the date of this Agreement, each of the Parent Specified Contracts is valid, binding and enforceable on Parent or expired in accordance with its terms and except a Parent Subsidiary, as has not hadthe case may be, and, to the Knowledge of Parent, each other party thereto, and is in full force and effect except (i) for such failures to be valid, binding or enforceable or to be in full force and effect as would not reasonably be expected to haveexpected, individually or in the aggregate, to have a Company Parent Material Adverse EffectEffect and (ii) insofar as such enforceability may be limited by bankruptcy, each Company Material Contract is valid and binding and insolvency, reorganization, moratorium or other Laws of general applicability relating to or affecting creditors’ rights, or by principles governing the availability of equitable remedies, whether considered in full force and effect anda Proceeding at law or in equity. As of the date of this Agreement, to the Knowledge of the CompanyParent, enforceable against the there is no default under any Parent Specified Contract by Parent or any Parent Subsidiary or any other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadthereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by Parent or any Parent Subsidiary or any other party thereto, in each case except as would not reasonably be expected to haveexpected, individually or in the aggregate, to have a Company Parent Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Midstates Petroleum Company, Inc.), Merger Agreement (Amplify Energy Corp)
Material Contracts. The agreements, leases, instruments and commitments set forth on Schedules 4.10(a)–(l) are collectively referred to as the “Material Contracts”:
(a) Section 4.21(aSchedule 4.10(a) sets forth the agreements relating to the ten most significant customers of the Company Disclosure Letter and the Subsidiaries, taken as a whole, in terms of revenues for the period of January 1, 2002 through July 31, 2002;
(b) Schedule 4.10(b) sets forthforth the agreements relating to the ten most significant suppliers of raw materials, supplies, merchandise or other goods to the Company and the Subsidiaries, taken as a whole, in terms of purchases for the date period of this January 1, 2002 through July 31, 2002;
(c) Schedule 4.10(c) sets forth each personal property lease under which the Company or any Subsidiary is either a lessor or lessee that involves annual payments or receipts of more than $100,000 (collectively, the “Personal Property Leases”);
(d) Schedule 4.10(d) sets forth the mortgages, indentures and other agreements and instruments relating to Indebtedness to which the Company or any Subsidiary is a party or by which it or its properties are bound, other than the plans, arrangements and agreements discussed in and contemplated by the Human Resources Agreement, a correct and complete list of ;
(e) Schedule 4.10(e) sets forth each of the following types of Contracts agreement (excluding employee benefit plans) to which the Company or any of its Subsidiaries is a party concerning a partnership, joint venture or by which any sharing of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholeprofits;
(iif) Schedule 4.10(f) sets forth each Contract that is a joint venture or partnership non-competition, non-solicitation, confidentiality agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiariesas set forth on Schedule 4.10(k) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
below), no-hire or stand-still agreement (iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiariessimilar obligation) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earnis a party which materially impair the Unisource Business;
(g) Schedule 4.10(g) sets forth each collective bargaining agreement to which the Company or any of its Subsidiaries is a party;
(h) In addition to the employee benefit plans identified on Schedule 4.24, Schedule 4.10(h) sets forth each other written agreement to which the Company or any of its Subsidiaries is a party concerning the employment (including the payment of severance in the event of termination or payment of any amount in connection with a change-out” in-control) of any employee of the Company or any of its Subsidiaries;
(i) Schedule 4.10(i) sets forth each agreement to which the Company or any of its Subsidiaries is a party under which the consequences of a default or termination or the inability of the Company to obtain the benefit of such agreement following the consummation of the transactions contemplated by this Agreement would reasonably be expected to have a Material Adverse Effect;
(j) Schedule 4.10(j) sets forth each settlement or conciliation agreement or similar obligations that could result in payments agreement (except for employee benefit plans and individual employee agreements) or order or consent of a Governmental Entity to which the Company or any of its Subsidiaries is a party (x) involving performance other than the payment of money damages or (y) involving only payment of money damages in excess of $1,000,000 in the aggregate200,000;
(viik) Schedule 4.10(k) sets forth each “material contract” written agreement (as such term is defined in Item 601(b)(10except for accepted requests for proposals and accepted requests for quotes) (i) between each of Regulation S-K under the Securities Act), whether or not filed by the Company with or any of its Subsidiaries on the SEC;one hand and each of its customers on the other hand and (ii) any agreement concerning the distribution of the products of any third party.
(viiil) any Contract governing a Related Party Transaction (as defined below);
(ixSchedule 4.10(l) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in sets forth each case with respect other agreement to which the Company has continuing obligations as or any of its Subsidiaries is a party, the date hereof) with any current (A) executive officer performance of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary which could involve consideration in excess of $250,000200,000; and
(xim) any other Contract or series of related Contracts under which it would reasonably be expected that Except as noted on Schedules 4.10(a) - (l), (A) neither the Company and its nor the Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, is in each case, during material default under any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the no other party to a Material Contract is in material default under any such Material Contract nor has any event occurred which with notice or parties thereto lapse of time would constitute a material breach or default or permit termination or acceleration of a Material Contract (except for the lapse or termination of any Material Contract in accordance with its terms), subject to (B) each of the Enforceability Exceptions. Except for breachesMaterial Contracts is in full force and effect, violations or defaults which have not hadexcept as set forth on Schedule 4.4 and (C) each of the Material Contracts is a valid, binding and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither enforceable obligation of the Company nor any of its Subsidiariesand the Subsidiaries and, nor to the Knowledge of the Company, of the other parties thereto. Except as set forth on Schedule 4.10(m), the Company any other party to a Company Material Contracthas delivered true, is in violation of or in default under any provision of such Company Material Contract. True correct and complete copies of each of the Company Material Contracts and any material amendments thereto have been made available to Parent prior Contracts, to the date of this AgreementBuyer including any amendments thereto.
Appears in 2 contracts
Sources: Contribution and Stock Purchase Agreement, Contribution and Stock Purchase Agreement (Georgia Pacific Corp)
Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter sets forth, as As of the date of this Agreement, a correct and complete list Schedule 4.9(a) of Seller’s Disclosure Schedules lists each of the following types Contracts of the Company and the Transferred Subsidiaries (collectively, “Material Contracts”):
(i) Any Contract relating to any Indebtedness for borrowed money;
(ii) Any Contract entered into within the last three (3) years (or any older Contract with meaningful ongoing obligations) relating to the acquisition or disposition of any business or assets (whether by merger, sale of stock, sale of assets or otherwise) contemplating an exchange of value in excess of $1,500,000;
(iii) Any Contract (other than Contracts with customers, which are addressed in clause (iv) below) for the purchase or sale of materials, supplies, goods, services, equipment or other assets providing for (A) either annual or aggregate payments by the Company and the Transferred Subsidiaries of $500,000 or more or (B) annual payments to which the Company and the Transferred Subsidiaries of $500,000 or more;
(iv) Any Contract with a customer accounting for five percent (5%) or more of the Company and the Transferred Subsidiaries’ revenues in the twelve (12) months prior to the date of this Agreement;
(v) Any lease (including all amendments, extensions and renewals with respect thereto) of real or personal property providing for annual rentals of $250,000 or more that cannot be terminated on not more than sixty (60) days’ notice without payment by the Company or any Transferred Subsidiary of its Subsidiaries is a party or by which any of their respective properties or assets is bound:material penalty;
(ivi) each Any partnership, joint venture or other similar Contract;
(vii) Any Contract that (A) limits or restricts containing covenants limiting in any material respect the freedom of the Company and its or the Transferred Subsidiaries from competing to compete in any line of business with any Person in any or geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholearea;
(iiviii) each Any Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company or the Transferred Subsidiaries grant a license to material Intellectual Property owned by the Company or their respective Subsidiaries to a third party or (B) the Company or the Transferred Subsidiaries license Intellectual Property from a third party that are material to the operations of the Company or the Transferred Subsidiaries, taken as a whole (other than licenses for non-bespoke Software that is generally commercially available, including “off-the-shelf” and “shrink-wrap” Software);
(ix) Any Contract relating to the settlement of any Action within the past three (3) years with any Governmental Authority (regardless of amount);
(x) Any Contract with Seller or any of its Affiliates (other than the Company and the Transferred Subsidiaries); and
(xi) Any other Contract (A) not made in the ordinary course of business and (B) involving reasonably expects that it is required anticipated payments to pay total consideration (including assumption of debt) after or from the date of this Agreement to be Company or the Transferred Subsidiaries in excess of $1,000,000 250,000 per annum and which do not expire or (B) any other Person has are not terminable at the right to acquire any assets option of the Company or any of its the Transferred Subsidiaries after the date of this Agreement with without cost or penalty within a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses sixty (i60) through (xi) is referred to herein as a “Company Material Contract”days.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to be material to the Company and the Transferred Subsidiaries, taken as a Company Material Adverse Effectwhole, each Company Material Contract is a valid and binding agreement of one or more of the Company or the Transferred Subsidiaries and is in full force and effect with respect to each such Company or Transferred Subsidiary party thereto and, to the Knowledge of the CompanySeller’s Knowledge, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadis a valid and binding agreement of, and is in full force and effect with respect to, the applicable counterparty to such Material Contract.
(c) Except as would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect, neither reasonably be expected to be material to the Company nor any of its and the Transferred Subsidiaries, nor to the Knowledge taken as a whole: (i) there is no default or breach under any Material Contract by any of the Company or the Transferred Subsidiaries or, to Seller’s Knowledge, by any other third party, (ii) there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a default or breach on the part of any of the Company or the Transferred Subsidiaries and (iii) to Seller’s Knowledge, there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a default or breach on the part of a third party (other than the Company and the Transferred Subsidiaries). Seller has made available to Purchaser a Company copy of each Material Contract, is in violation of together with all amendments thereto, effective on or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (BATS Global Markets, Inc.), Securities Purchase Agreement (KCG Holdings, Inc.)
Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter sets forthAll Contracts, including amendments thereto, required to be filed as of the date of this Agreementexhibits to any Cubs SEC Documents filed after January 1, a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on2025, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not Exchange Act have been so filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof, and no such Contract has been amended or modified (or further amended or modified, as applicable) that would require a filing pursuant to Item 601(b)(10) of Regulation S-K since the date such Contract or amendment was filed. To the extent any such Contracts were filed in redacted form (including any omission of exhibits, schedules or other attachments), Cubs has made available to Dodgers correct and complete copies thereof (including all material amendments, modifications, extensions or renewals with any current respect thereto and all exhibits, schedules and other attachments).
(Ab) executive officer Other than the Contracts set forth in clause (a) above, Section 2.10(b) of the CompanyCubs Disclosure Letter sets forth a correct and complete list, and Cubs has made available to Dodgers correct and complete copies (B) member including all material amendments, modifications, extensions or renewals with respect thereto), of each of the Company Boardfollowing Contracts (other than any Cubs Benefit Plans) to which Cubs or any of the Cubs Subsidiaries is a party or bound as of the date hereof:
(i) any Contract which is between Cubs or any of the Cubs Subsidiaries, on the one hand, and any of their respective officers, directors or principals (Cor any such Person’s Affiliates) Company Employee providing for an or any Person that holds or owns five percent (5%) or more of the shares of Cubs’ capital stock (or any Affiliates of any such Person), on the other hand, involving aggregate annual base salary payments in excess of $250,000; and120,000, other than compensation arrangements with the directors on the Cubs Board in their capacity as such;
(xiii) any other each Contract or series Cubs Organizational Document that would, on or after the Closing Date, prohibit or restrict the ability of related Contracts under which it would reasonably be expected that the Company and Surviving Corporation or any of its Subsidiaries would receive annual payments to declare and pay dividends or distributions with respect to their capital stock, pay any Indebtedness for borrowed money, obligations or liabilities from time to time owed to the Surviving Corporation or any of its Subsidiaries, make loans or advances or transfer any of its properties or assets;
(iii) each Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that (A) materially restricts the ability of Cubs or any of the Cubs Subsidiaries to (x) compete in any material line of business or material geographic area or with any Person during any period of time after the Effective Time or (y) make, sell or distribute any material products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets or properties or (B) could require the disposition of any material assets or line of business of Cubs or any of the Cubs Subsidiaries;
(iv) each Contract that creates, evidences, provides commitments in respect of, secures or guarantees (A) Indebtedness for borrowed money in any amount in excess of $7,000,000 50,000,000 or more (eachB) other Indebtedness (other than obligations under a Derivative Product or any guarantee or other credit support thereof) of Cubs or any of the Cubs Subsidiaries (whether incurred, a “Revenue Contract”assumed, guaranteed or secured by any asset) or make annual payments in excess of $5,000,000 or more50,000,000, other than, in each case, during agreements solely between or among Cubs and the Cubs Subsidiaries;
(v) any twelve Labor Agreement;
(12vi) month period any Contract relating to any pending acquisition or divestiture pursuant to which the remaining period of such Contract, if shorter. Each aggregate consideration (whether in cash or otherwise) is equal to or greater than $150,000,000; or
(vii) any Contract of the type set forth on Section 2.10(b)(vii) of the Cubs Disclosure Letter.
(c) The Contracts described in the foregoing clauses (ia) and (b), together with all exhibits and schedules to such Contracts, as amended through (xi) is the date hereof or as hereafter amended in accordance with Section 4.1 hereof, are referred to herein as a “Company Cubs Material ContractContracts.”.
(bd) Except for any Company Each Cubs Material Contract that has terminated is valid and binding on Cubs or expired the Cubs Subsidiary party thereto, as the case may be, and, to the Knowledge of Cubs, each other party thereto, and is in full force and effect in accordance with its terms terms, except for (i) terminations or expirations at the end of the stated term or (ii) such failures to be valid and except binding or to be in full force and effect as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Cubs Material Adverse Effect, in each Company Material Contract case subject to Enforceability Exceptions.
(e) Neither Cubs nor any of the Cubs Subsidiaries is valid and binding and in full force and effect breach of, or default under the terms of, and, to the Knowledge of the CompanyCubs, enforceable against the no other party to any Cubs Material Contract is in breach of, or parties thereto default under the terms of, any Cubs Material Contract, nor is any event of default (or similar term) continuing under any Cubs Material Contract, in accordance with its termseach case where such breach, subject to the Enforceability Exceptions. Except for breaches, violations default or defaults which have not had, and event of default (or similar term) would not reasonably be expected to have, individually or in the aggregate, a Company Cubs Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Coterra Energy Inc.), Merger Agreement (Coterra Energy Inc.)
Material Contracts. (a) Section 4.21(aSchedule 3.16(a) sets forth a list of all Contracts (other than purchase or service orders executed in the ordinary course of business or Contracts of Parent or its Subsidiaries related to Excluded Liabilities) of the Company Disclosure Letter sets forth, as of type described below to which any IPG Entity is a party that are in effect on the date of this AgreementAgreement (each Contract that is required to be listed in Schedule 3.16(a), being a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:“Material Contract”):
(i) each any Contract that (A) limits for the purchase or restricts in lease by any material respect the Company and its Subsidiaries from competing in any line IPG Entity of business with any Person in any geographic region vehicles, machinery, equipment, materials, supplies or (B) contains exclusivity obligations other personal property requiring annual payments by such IPG Entity of $5,000,000 or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholemore;
(ii) each any Contract that is a joint venture providing for the sale or partnership agreement that is material license by any IPG Entity of materials, supplies, goods, services, equipment or assets requiring annual payments to the Company and its Subsidiaries, taken as a wholesuch IPG Entity of $5,000,000 or more;
(iii) each other than exclusive distribution agreements (but including any such Contracts listed under clause (a)(ii) of this Section 3.16), any Contract that is a loancontains noncompetition covenants that prohibit any IPG Entity from freely engaging in any business or in any geographic territory or market;
(iv) any mortgage, guarantee of indebtedness or credit agreementindenture, note, bond, mortgage, indenture bond or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) Contract relating to indebtedness for borrowed money incurred by any IPG Entity in an amount in excess of $1,000,000;
(iv) each Contract with respect 7,500,000 or that otherwise cannot, pursuant to an interestits terms, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000be prepaid prior to Closing;
(v) each Contract that is any partnership, joint venture, franchise or other similar equity investment agreements with any Person other than an acquisition IPG Entity;
(vi) any agreement or a divestiture agreement pursuant material to which the Business (A) granting any IPG Entities a license, consent or right to use, exploit or practice any Intellectual Property owned by third parties (other than COTS Licenses), (B) whereby any IPG Entity grants to a third party a license, consent or right to use, exploit or practice any Business Intellectual Property (other than non-exclusive licenses or sublicenses granted, and licenses or sublicenses to customers and distributors in connection with the Company reasonably expects sale or license of products or services, in each case, in the ordinary course of business consistent with past practice), in each case, requiring annual payments of $250,000 or more, or (C) regarding any settlement of any Intellectual Property-related Action (other than settlement agreements that it is required do not provide for any future payment or performance obligations on behalf of the IPG Entities);
(vii) except for (A) transactions between or among IPG Entities and (B) transactions contemplated by the Reorganization Documents, any Contract entered into during the three-year period prior to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess for the acquisition or disposition of $1,000,000 any business (whether by merger, sale of stock, sale of assets or (Botherwise) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or having an aggregate purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions 7,500,000 or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SECmore;
(viii) any Contract governing associated with ▇▇▇▇▇▇, derivatives or other similar instruments, in each case, having a Related Party Transaction (as defined below);termination value in excess of $5,000,000; or
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of requiring capital expenditures after the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary hereof in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”2,500,000.
(b) Except for any Company Each Material Contract that has terminated or expired set forth in Schedule 3.16(a) is a valid and binding agreement of the IPG Entity party thereto, enforceable in accordance with its terms and terms, except as has not hadlimited by Laws affecting the enforcement of creditors’ rights generally, and by general equitable principles or by the discretion of any Governmental Authority before which any Action seeking enforcement may be brought, except as would not reasonably be expected to haveexpected, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and to result in full force and effect and, material Liability to the Knowledge IPG Entities, taken as a whole, or otherwise materially interfere with the conduct of the CompanyBusiness in substantially the manner currently conducted. None of the IPG Entities are in breach of or default under, enforceable against or have received any written notice of any default or event that, with notice or lapse of time, or both, would constitute a breach or default by the other party IPG Entities under any Material Contract, except for any breach or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and default that would not reasonably be expected to haveexpected, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to result in material Liability to the Knowledge IPG Entities, taken as a whole, or otherwise materially interfere with the conduct of the Company any Business in substantially the manner currently conducted. To the knowledge of the Sellers, no other party to a Company Material Contract is in breach of or default under any such Material Contract, is in violation of except as would not reasonably be expected, individually or in default under any provision the aggregate, to result in material Liability to the IPG Entities, taken as a whole, or otherwise materially interfere with the conduct of such Company Material Contract. the Business in substantially the manner currently conducted.
(c) True and complete copies of each Material Contract, including all material amendments, modifications, supplements, exhibits, schedules and addenda thereto through the Company Material Contracts and any material amendments thereto date of this Agreement, have been made available to Parent Buyer prior to the date hereof; provided, however, that any amendments, modifications, supplements, exhibits, schedules and addenda to such Material Contracts that do not otherwise materially amend, modify or otherwise waive any provisions of this Agreementsuch Material Contracts have been provided only to the extent in Parent’s possession and readily available.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Illinois Tool Works Inc)
Material Contracts. (a) Subsections (i) through (xii) of Section 4.21(a3.16(a) of the Company Disclosure Letter sets forthlist the following Contracts to which the Company or any Company Subsidiary is a party as of the date of this Agreement and that have material remaining unfulfilled obligations (other than indemnity and contribution obligations under which no material claims are outstanding as of the date of this Agreement) as of the date of this Agreement (such Contracts as are required to be set forth in Section 3.16(a) of the Company Disclosure Letter being the “Material Contracts”), and none of the Company or any Company Subsidiary is a party to or bound by any Material Contracts not listed in Section 3.16(a) of the Company Disclosure Letter:
(i) each Contract that would be required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) each Contract which is reasonably expected to involve consideration of more than US$150,000, in the aggregate, over the remaining term of such Contract, other than (A) at-will employment or service arrangements and (B) purchase orders entered into in the ordinary course of business;
(iii) all Contracts relating to any credit, loan or facility arrangement, guarantee or other security arrangement, or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary), in each case involving outstanding borrowings in excess of US$100,000, other than trade accounts receivable arising in the ordinary course of business;
(iv) all joint venture Contracts, strategic cooperation or partnership arrangements, or other agreements involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, other than insurance, indemnification and contribution Contracts arising in the ordinary course of business;
(v) all Contracts relating to the purchase or sale of any Common Shares or other securities of the Company or any Company Subsidiary, other than the Stock Incentive Plans and any Contracts arising thereunder, such as any option, restricted stock, restricted stock unit or similar equity compensation Contract;
(vi) all Contracts constituting a lease, sublease, license agreement, occupancy agreement, land grant contract or other Contract with respect to any leased real property material to the business of the Company and the Company Subsidiaries, taken as a whole;
(vii) all Contracts that limit, or purport to limit, the ability of the Company or any Company Subsidiary to compete in any line of business or with any person or entity or in any geographic area or during any period of time;
(viii) all Contracts that prohibit the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibit the pledging of the capital stock of any wholly owned Company Subsidiary or prohibit the issuance of any guaranty by the Company or any wholly owned Company Subsidiary, other than Contracts where the breach or violation of any such prohibition would not be material to the business of the Company and the Company Subsidiaries, taken as a whole;
(ix) all Contracts for employment with any executive officer or prospective executive officer of the Company (other than pursuant to any Company Employee Plan);
(x) all Contracts with any directors or officers (other than pursuant to any Company Employee Plan) or stockholders of the Company reporting beneficial ownership as of the date of this Agreement of more than 5% of the Common Shares on a Schedule 13G or 13D filed with the SEC (other than Parent and Merger Sub and their respective Affiliates), or any person known by the Company to be any of their respective Affiliates (other than the Company or any Company Subsidiary) or immediate family members;
(xi) all Contracts providing for any indemnification, earn-out, installment or other contingent obligations (other than Company Employee Plans) to or from the Company or any Company Subsidiary, by or to any Third Party, in each case involving obligations or payments that could reasonably be expected to exceed US$100,000;
(xii) all Contracts providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets (other than dispositions of products and services of the Company in the ordinary course of business) or capital stock or other equity interests of another person where the aggregate consideration under such Contract (or series of related Contracts) exceeds US$100,000;
(xiii) all Contracts that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any Company Subsidiary licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or the Company Subsidiary, as the case may be (other than (1) license agreements for commercially available software on standard terms and (2) license agreements entered into in the ordinary course of business with customers, distributors, resellers and sales representatives);
(xiv) all Contracts providing for any change of control payments; and
(xv) all other Contracts, whether or not made in the ordinary course of business, which are material to the business of the Company and the Company Subsidiaries, taken as a whole, or the absence of which would, individually or in the aggregate, have a Company Material Adverse Effect.
(b) Except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding agreement, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) the Company and the Company Subsidiaries have performed all obligations required to be performed by them to date under each Material Contract; (iii) to the knowledge of the Company, no other party is in material breach or violation of, or material default under, any Material Contract; (iv) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that would reasonably be expected to give rise to any claim of material default under any Material Contract; (v) the Company has not received, as of the date of this Agreement, a correct any notice in writing from any person that such person intends to terminate any Material Contract; and complete list of each of (vi) neither the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date execution of this Agreement nor the consummation of any Transaction shall constitute a default under, give rise to be in excess cancellation rights under, or otherwise adversely affect any of $1,000,000 or (B) any other Person has the right to acquire any assets material rights of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default Subsidiary under any provision of such Company Material Contract. True The Company has furnished or made available to Parent true and complete copies of the Company all Material Contracts and Contracts, including any material amendments thereto have been made available to Parent prior to the date of this Agreementthereto.
Appears in 2 contracts
Sources: Merger Agreement (MEMSIC Inc), Merger Agreement (Idg-Accel China Growth Fund Ii L P)
Material Contracts. (a) Section 4.21(a4.17(a) of the Company Disclosure Letter Schedules sets forthforth a list of all Contracts described in clauses (i) through (viii) below (“Material Contracts”) to which, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party party. True and complete copies of the Material Contracts listed on Section 4.17(a) of the Company Disclosure Schedules, together with all amendments, modifications or by which any of their respective properties supplements thereto, have been delivered to or assets is boundmade available to Buyer or its Representatives:
(i) each Contract (other than (x) purchase orders with suppliers or customers entered into in the ordinary course of business and (y) Contracts of the type (without giving effect to dollar thresholds) described in other clauses of this Section 4.17(a)) that (A) limits or restricts in any material respect the Company and reasonably anticipates will involve annual payments or consideration furnished by or to the Company or any of its Subsidiaries from competing in any line of business with any Person in any geographic region more than $100,000 which are not cancelable (without penalty, cost or other liability) within ninety (B90) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholedays;
(ii) each note, debenture, other evidence of indebtedness, guarantee, loan, credit or financing agreement or instrument or other Contract that is a joint venture or partnership agreement that is material to for money borrowed by the Company and or any of its Subsidiaries, taken as a wholein each case, having an outstanding principal amount in excess of $100,000 or secured by any portion of any of the Company’s or any of its Subsidiaries’ assets;
(iii) each Contract that is to provide any funds to or make any investment in (whether in the form of a loan, guarantee of indebtedness capital contribution or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiariesotherwise) relating to indebtedness for borrowed money in an amount in excess of $1,000,000any Person;
(iv) each Contract with respect to an interest, rate, currency for the acquisition of any Person or other swap any business unit thereof or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess disposition of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any material assets of the Company or any of its Subsidiaries after (other than in the date ordinary course of this Agreement with a fair market value or purchase price of more than $1,000,000, excludingbusiness), in each case, (x) acquisitions involving payments in excess of $100,000, other than Contracts in which the applicable acquisition or dispositions of supplies, inventory or products in connection with the conduct of the Company’s disposition has been consummated and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that under which there are obsolete, worn out, surplus or no longer used or useful in the conduct of business remaining material ongoing obligations of the Company or its SubsidiariesSubsidiaries thereunder;
(viv) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “potential liability in respect of any purchase price adjustment, earn-out” out or similar obligations contingent purchase price;
(vi) any Contract that could result in payments in excess provides for the indemnification of $1,000,000 any Person by the Company or any of its Subsidiaries, except for Contracts entered into in the aggregateordinary course of business consistent with past practice or where such indemnity is not material to the Company and its Subsidiaries;
(vii) each “material contract” lease, rental or occupancy agreement, real property license, installment and conditional sale agreement, and other Contract that, in each case, (as such term is defined x) provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in Item 601(b)(10any real or personal property and (y) involves annual payments in excess of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC$100,000;
(viii) any Contract governing each joint venture Contract, partnership agreement or limited liability company agreement with a Related Party Transaction third party (as defined belowin each case, other than with respect to wholly owned Subsidiaries of the Company);
(ix) any registration rights agreements with respect to securities each Contract requiring capital expenditures after the date of the Companythis Agreement in an annual amount in excess of $100,000;
(x) any employment or consulting each Contract (in each case with respect other than license agreements or software as service agreements to use commercial available off-the-shelf software, including as a service) pursuant to which intellectual property material to the business of the Company or its Subsidiaries has been licensed or sublicensed to or from the Company or any of its Subsidiaries, or pursuant to which the Company has continuing obligations as or any of its Subsidiaries is obligated to pay, or pursuant to which the date hereof) with Company or any current (A) executive officer of its Subsidiaries receives, any royalty or other fee for the Companyuse of or the right to use, (B) member any intellectual property material to the business of the Company Boardor its Subsidiaries;
(xi) each collective bargaining agreement and any other material agreement with any labor union;
(xii) each employment, retention, severance or change in control agreement between any Employee and the Company or any of its Subsidiaries (Cexcluding at-will employment arrangements that can be terminated by the Company or its Subsidiaries on thirty days’ notice or less without penalty or liability);
(xiii) each Contract pursuant to which the Company Employee providing for an annual base salary in excess or any of $250,000its Subsidiaries stores inventory at any location other than a location owned or leased by the Company or any of its Subsidiaries; and
(xixiv) each Contract containing covenants expressly limiting in any other Contract or series material respect the freedom of related Contracts under which it would reasonably be expected that the Company and or any of its Subsidiaries would receive annual payments to compete with any Person in a product line or line of $7,000,000 business or more (each, a operate at any location or containing an exclusivity or “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”most favored nation” clause.
(b) Except for any As of the date of this Agreement, all of the Material Contracts listed in Section 4.17(a) of the Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and Disclosure Schedules are (i) in full force and effect and (ii) represent the valid and binding obligations of the Company or one of its Subsidiaries party thereto and, to the Knowledge of the Company, enforceable against represent the valid and binding obligations of the other party or parties thereto thereto, subject, in accordance with its termsthe cases of clauses (i) and (ii), subject to the Enforceability Exceptions. Except for breachesapplicable bankruptcy, violations or defaults which have not hadinsolvency, 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). Except, in each case, where the occurrence of such breach or default has not had or would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, neither the Company, any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in breach of or default under any such Material Contract. As of the date of this Agreement, neither the Company nor any of its Subsidiaries, nor to the Knowledge Subsidiaries has received any written claim or notice of the Company any other party to a Company Material Contract, is in violation material breach of or in material default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Rentech, Inc.), Membership Interest Purchase Agreement
Material Contracts. (a) Except for this Agreement and the Contracts disclosed in the Filed Company SEC Documents, Section 4.21(a4.14(a) of the Company Disclosure Letter sets forthforth a true and complete list, as of the date of this Agreement, a correct and the Company has made available to Parent true and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundcopies, of:
(i) each Contract that (A) limits or restricts in any material respect would be required to be filed by the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole“material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Contract that to which the Company or any Company Subsidiary is a joint venture party that (A) restricts the ability of the Company or partnership agreement any Company Subsidiary to compete in any business or with any Person in any geographical area, (B) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of any third party, except in the case of each of clauses (A), (B) and (C) for such restrictions, requirements and provisions that is are not material to the Company and its the Company Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness under which the Company or credit agreement, note, bond, mortgage, indenture any Company Subsidiary licenses Intellectual Property from or other binding commitment to any third party (other than letters (A) generally commercially available, off-the-shelf software programs and (B) non-exclusive licenses in the ordinary course of credit business), except for such licenses and those between sublicenses that are not material to the Company and its wholly owned the Company Subsidiaries, taken as a whole;
(iv) any Contract pursuant to which the Company or any Company Subsidiary will acquire any material ownership interest in any other Person or other business enterprise other than any Company Subsidiary, in each case, with a value greater than $1,000,000 after the date of this Agreement;
(v) each Contract that constitutes a commitment relating to indebtedness for borrowed money or the deferred purchase price of property by the Company or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in an amount excess of $1,000,000, other than agreements solely between or among the Company and any Company Subsidiaries;
(vi) each Contract for a Derivative Transaction;
(vii) each Contract to which the Company or any Company Subsidiary is a party that provides for annual payments, receipts or expenditures in excess of $1,000,000;
(ivviii) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each any Contract that is an acquisition a settlement, conciliation or similar agreement with any Governmental Authority or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any Company Subsidiary will have any material obligations after the date of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregatethis Agreement;
(viiix) each “material contract” collective bargaining agreement or other Contract with any labor union, works council, or other labor organization respecting employees of the Company or any Company Subsidiary;
(as such term x) each Contract with or binding upon the Company or any Company Subsidiary or any of their respective properties or assets that is defined in of the type that would be required to be disclosed under Item 601(b)(10) 404 of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under to which it would reasonably be expected that the Company or any Company Subsidiary is a party that is for the employment or engagement of any person on a full-time or part-time basis, including directors, employees and its Subsidiaries would receive independent contractors and employees at annual payments compensation in excess of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter1,000,000. Each such Contract of the type described in clauses (i) through (xi) above is referred to herein as a “Company Material Specified Contract.”.
(b) Except for any As of the date of this Agreement, each of the Company Material Contract that has terminated Specified Contracts is valid, binding and enforceable on the Company or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectSubsidiary, each Company Material Contract is valid and binding and in full force and effect as the case may be, and, to the Knowledge of the Company, enforceable against the each other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadthereto, and is in full force and effect except (i) for such failures to be valid, binding or enforceable or to be in full force and effect as would not reasonably be expected to haveexpected, individually or in the aggregate, to have a Company Material Adverse Effect and (ii) insofar as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws of general applicability relating to or affecting creditors’ rights, or by principles governing the availability of equitable remedies, whether considered in a Proceeding at law or in equity. As of the date of this Agreement, to the Knowledge of the Company, there is no default under any Company Specified Contract by the Company or any Company Subsidiary or any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any Company Subsidiary or any other party thereto, in each case except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Midstates Petroleum Company, Inc.), Merger Agreement (Amplify Energy Corp)
Material Contracts. (a) Except for this Agreement and Contracts filed as exhibits to the Company SEC Documents, Section 4.21(a) 4.12 of the Company Disclosure Letter sets forthforth a complete and correct list, as of the date of this Agreement, a and the Company has made available to Parent complete and correct and complete list copies, of each of the following types of Contracts Contract (together with any and all amendments and supplements thereto and material side letters and similar documentation relating thereto) to which the Company or any of its Subsidiaries is a party to or bound by which (each, a “Material Contract”) of any of their respective properties or assets is boundthe following types:
(i) each Contract that with a customer representing any of the fifty (A50) limits or restricts in any material respect largest customer relationships by revenue of the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or on a consolidated basis over the twelve (B12) contains exclusivity obligations or restrictions binding onmonths immediately prior to January 31, and material to, the Company and its Subsidiaries, taken as a whole2012;
(ii) each Contract that is with a joint venture or partnership agreement that is material to supplier representing any of the ten (10) largest telecommunications services supplier relationships by payments of the Company and its Subsidiarieson a consolidated basis during the current fiscal year through April 19, taken as a whole2012;
(iii) each Contract that is with a loansupplier, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters professional service providers, representing any of credit and those between the ten (10) largest supplier relationships, other than the ten (10) largest telecommunications services supplier relationships, measured by payments of the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000on a consolidated basis during the current fiscal year through April 19, 2012;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction a sales agent representing any of the ten (other than those between 10) largest sales agent relationships by revenue of the Company and its Subsidiaries) with on a fair value in excess of $1,000,000consolidated basis generated or managed during the current fiscal year through February 29, 2012;
(v) each Contract that is an acquisition agreement with a reseller of the Company’s and/or its Subsidiaries’ products or a divestiture agreement pursuant to which services representing any of the ten (A10) largest sales reseller relationships by revenue of the Company reasonably expects that it is required on a consolidated basis over the twelve (12) months immediately prior to pay total consideration March 31, 2012;
(including assumption vi) with a consultant or independent contractor representing any of debtthe ten (10) after largest consultant or independent contractor relationships by payments of the Company on a consolidated basis during the current fiscal year through April 26, 2012;
(vii) entered into within the two (2) years prior to the date hereof that relate to the acquisition or disposition of this Agreement to be in excess any business, a material amount of $1,000,000 stock or (B) assets of any other Person has the or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(viii) granting any Person an option or right to acquire on a non-arms’ length basis any Specified Intellectual Property (other than non-exclusive licenses granted to customers in the ordinary course of business) or material assets or tangible property of the Company or any of its Subsidiaries after Subsidiaries;
(ix) relating to (A) indebtedness for borrowed money (including guarantees by the date Company or any of this Agreement with its Subsidiaries) other than to or from its wholly-owned Subsidiaries, (B) the incurrence of Liens (other than Permitted Liens) on the assets of the Company or its Subsidiaries, (C) the assumption, guarantee or endorsement, or other responsibility (whether directly, contingently or otherwise) for, the obligations of any Person (other than its wholly-owned Subsidiaries) for borrowed money, or (D) any “keep well” or other agreement to maintain any financial statement condition of another Person (other than a fair market value or purchase price wholly-owned Subsidiary of more the Company), excluding in each case Contracts relating to trade payables arising in the ordinary course of business and those involving an amount of less than $1,000,000, excluding, in each case, 50,000;
(x) acquisitions or dispositions of suppliesthat, inventory or products in connection with except as would not have a material restrictive impact on the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its SubsidiariesAffiliates, to the Knowledge of the Company (A) limit the ability of the Company or any of its Affiliates to solicit any Person as a customer, (B) limit the ability of the Company or any of its Affiliates to compete in any line of business or with any Person or in any geographic area or during any future period of time, or (C) obligate the Company or any of its Affiliates to pay any royalties or other material amounts, or offer any discounts, to any third party in excess of those payable by, or required to be offered by, any of them, respectively, in the absence of this Agreement or the transactions contemplated hereby;
(vixi) each Contract relating to any material strategic alliance, joint venture or partnership arrangements;
(xii) pursuant to which the Company or any of its Subsidiaries has continuing “earnare obligated to contribute capital, loan money or otherwise provide funds or make additional investments in any Person other than a wholly-out” owned Subsidiary of the Company or similar obligations that could result other than trade payables arising in the ordinary course of business;
(xiii) relating to open purchase orders (including for services) involving future payments in excess of $1,000,000 in the aggregate150,000;
(viixiv) each providing “material contractmost favored nation” or similar pricing to any customer that is a party to a Contract described in subsection (as such term is defined in Item 601(b)(10i) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements above with respect to securities the sale, distribution, license or support of the Company;
(x) any employment products or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000services; and
(xixv) any other Contract the termination or series loss of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect andwhich, to the Knowledge of the Company, enforceable against would materially and adversely affect the ability of the Company and its Subsidiaries to provide goods or services to customers, excluding Contracts otherwise described in any of subsections (i) through (xiv) above.
(b) Section 4.06(a) of the Company Disclosure Letter also sets forth, for the Contracts listed in items (i) through (vi) thereof, the revenue or fees received from or paid to such customer, supplier, sales agent/reseller or consultant/independent contractor during the time period referenced in Section 4.06(a)(i) through (vi), as applicable.
(c) Each Material Contract is valid and binding on the Company or any of its Subsidiaries, and to the Company’s Knowledge, each other party or parties thereto in accordance with its terms, terms (subject to applicable bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadrights of creditors generally, and would not reasonably be expected to have, individually or the exercise of a court’s equitable powers) and is in the aggregate, a Company Material Adverse Effect, neither full force and effect. Neither the Company nor any of its SubsidiariesSubsidiaries nor, nor to the Company’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) in any material respect, nor, to the Company’s Knowledge, has provided or is in receipt of any written notice of any current intention to terminate, any Material Contract. To the Company’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 changes of any right or obligation or the loss of any benefit thereunder. No customer who is a party to a Material Contract has given written, or, to the Knowledge of the Company, oral, notice to the Company or any other of its Subsidiaries that it intends to reduce its purchase of goods or services from the Company or any of its Subsidiaries, make any material modifications or change in or to terminate its business relationship with the Company or any of its Subsidiaries and no material credit amounts are owing or, to the Company’s Knowledge, alleged owing, to any customer as a result of a breach by the Company or any of its Subsidiaries of any service level obligations except as may have been reserved for in the Financial Statements. No supplier who is a party to a Material Contract has given written, or, to the Knowledge of the Company, oral, notice to either the Company Material Contractor any of its Subsidiaries that it intends to alter or change any material pricing or other material terms with respect to its supply of goods or services to the Company or any of its Subsidiaries, is or to terminate its business relationship with the Company or any of its Subsidiaries.
(d) Neither the entry into nor the consummation of this Agreement or the transactions consummated hereby (including the Merger) will, directly or indirectly, in violation of whole or in default under any provision of such Company Material Contract. True and complete copies part, terminate, adversely modify, increase the obligations or decrease the rights of the Company Material Contracts (including as the Surviving Corporation) or its Subsidiaries under that certain Securities and any material amendments thereto have been made available to Parent prior to Asset Purchase Agreement dated as of October 21, 2010, by and among the date of this Company, Premiere Global Services, Inc., Xpedite Systems Holdings (UK) Limited, Premiere Conferencing (Canada) Limited and Xpedite Systems, LLC (the “PGI Agreement”).
Appears in 2 contracts
Sources: Merger Agreement (Easylink Services International Corp), Merger Agreement (Open Text Corp)
Material Contracts. (a) Section 4.21(aSchedule 4.11(a) contains a listing of the Company Disclosure Letter sets forthall Contracts described in clauses (i) through (x) below to which, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts to which the Company or any of its the Subsidiaries is are a party or by which any of their respective properties or assets is bound:(collectively, the “Material Contracts”):
(i) each Contract that (A) limits or restricts Each Royalty Acquisition Agreement in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholeMaterial Tenant Project;
(ii) each Contract that is Each Project Lease Agreement in respect of a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a wholeMaterial Tenant Project;
(iii) each Contract that is With respect to the Red Mesa Project, the ground lease from Lobo Partners, LLC to AG Land Property Management I, LLC;
(iv) Each Other Related Material Documents in respect of a Material Tenant Project;
(v) Each note, debenture, other evidence of indebtedness, guarantee, loan, guarantee of indebtedness credit or credit agreement, note, bond, mortgage, indenture financing agreement or instrument or other binding commitment (other than letters of credit and those between contract for money borrowed by the Company and its wholly owned or any of the Subsidiaries) relating to indebtedness for borrowed money , in each case, having an outstanding principal amount in excess of $1,000,000100,000;
(ivvi) each Each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between Contracts of the type (without giving effect to dollar thresholds) described in other clauses of this Section 4.11(a)) that the Company reasonably anticipates will involve aggregate payments or consideration furnished by or to the Company or any of the Subsidiaries of more than $100,000 in any calendar year and its Subsidiarieswhich are not cancelable (without material penalty, cost or other liability) with a fair value in excess of $1,000,000within ninety (90) days;
(vvii) each Each Contract that is an for the acquisition agreement of any Person or a divestiture agreement pursuant to which (A) any business unit thereof or the Company reasonably expects that it is required to pay total consideration (including assumption disposition of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its the Subsidiaries (other than in the ordinary course of business), in each case, involving aggregate payments in excess of $100,000 in any calendar year, other than Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing;
(viii) Each joint venture agreement, partnership agreement or limited liability company agreement with a third party;
(ix) Each Contract requiring capital expenditures after the date of this Agreement with a fair market value or purchase price in an amount in excess of more than $1,000,000, excluding, 100,000 in each case, any calendar year; and
(x) acquisitions Each Contract expressly prohibiting or dispositions restricting in any material respect the ability of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its the Subsidiaries has continuing “earn-out” to engage in any business, to operate in any geographical area or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) compete with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000Person; and
(xi) any Except as set forth in Schedule 4.11(a), there are no other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Contracts.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Each Material Contract is valid and binding and in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms, of the Company and/or the Subsidiaries (as applicable) and, to the Knowledge of the Company, enforceable against the of each other party thereto, except as the same may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or parties thereto other similar Laws relating to or affecting the rights of creditors generally, or by general equitable principles. Except as set forth in Schedule 4.11(b), all payments and performance required of the Company and/or the Subsidiaries under the Material Contracts through the Closing Date have been or will, on or before the Closing Date, be made, and neither the Company nor any Subsidiary, nor, to the Knowledge of the Company, any other party to the Material Contracts, is in violation or breach of or default under the Material Contracts (or with notice or lapse of time or both, would be in violation or breach of or default under any such Material Contract).
(c) Each Material Royalty Project Lease Agreement is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms, subject of the parties thereto, except as the same may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar Laws relating to or affecting the Enforceability Exceptionsrights of creditors generally, or by general equitable principles. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to To the Knowledge of the Company any other Company, no party to a Company the Material Contract, Royalty Project Lease Agreements is in violation or breach of or in default under any provision of such Company the applicable Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementRoyalty Project Lease Agreements.
Appears in 2 contracts
Sources: Unit Purchase Agreement, Unit Purchase Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Material Contracts. (a) Subsections (i) through (ix) of Section 4.21(a) 3.16 of the Company Disclosure Letter sets forth, as of the date of this Agreement, Schedule contain a correct and complete list of each of the following types of Contracts contracts and agreements to which the Company or any of its Subsidiaries Subsidiary is a party or by which any (such contracts, agreements and arrangements as are required to be set forth in Section 3.16(a) of their respective properties or assets is bound:the Company Disclosure Schedule, together with all agreements relating to Intellectual Property set forth in Section 3.13(a) of the Company Disclosure Schedule, being the "MATERIAL CONTRACTS"):
(i) each Contract that contract and agreement (excluding individual purchase and sales orders) which (A) limits or restricts is likely to involve consideration of more than $100,000 in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or aggregate during the calendar year ending December 31, 1997, (B) contains exclusivity obligations or restrictions binding onis likely to involve consideration of more than $100,000 in the aggregate over the remaining term of such contract, and material towhich, in either case, cannot be cancelled by the Company and its Subsidiaries, taken as a wholeor any Subsidiary upon 90 days' or less notice without penalty or further payment;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company all broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing consulting and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit advertising contracts and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant agreements to which the Company or any Subsidiary is a party (true and complete copies of its Subsidiaries has continuing “earn-out” such contracts and agreements have been provided to Parent);
(iii) all management contracts (excluding contracts for employment) and contracts with physicians or similar obligations that could result in payments in excess other consultants, including any contracts involving the payment of $1,000,000 royalties or other amounts calculated based upon the revenues or income of the Company or any Subsidiary or income or revenues related to any product of the Company or any Subsidiary to which the Company or any Subsidiary is a party;
(iv) all contracts and agreements relating to indebtedness;
(v) all contracts and agreements with any Governmental Authority to which the Company or any Subsidiary is a party other than for purchases or sales of inventory to a Governmental Authority in the aggregateordinary course of business consistent with past practice;
(vi) all contracts and agreements that limit the ability of the Company or any Subsidiary to compete in any line of business or with any person or entity or in any geographic area or during any period of time;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K all contracts and agreements providing for benefits under the Securities Act), whether or not filed by the Company with the SECany Plan;
(viii) all material contracts or arrangements that result in any Contract governing person or entity holding a Related Party Transaction (as defined below);power of attorney from the Company or any Subsidiary that relates to the Company, such Subsidiary or their businesses; and
(ix) any registration rights agreements with respect all contracts for employment required to securities of the Company;
(x) any employment or consulting Contract (be listed in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member Section 3.10 of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Disclosure Schedule.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect, each Company Material Contract contract referred to in paragraphs (i) through (ix) above is a legal, valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectagreement, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, Subsidiary is in violation of or in default under any provision Material Contract, and neither the Company nor any Subsidiary is in receipt of such Company any claim of default under any Material Contract. True The Company has furnished or made available to Parent true and complete copies of the Company all Material Contracts and any material amendments thereto have been made available in effect as of the date hereof that are not included as exhibits to Parent the SEC Reports filed prior to the date of this Agreementhereof.
Appears in 2 contracts
Sources: Merger Agreement (Spine Tech Inc), Merger Agreement (Spine Tech Inc)
Material Contracts. (a) Section 4.21(a3.13(a) of the Company Disclosure Letter sets forthSchedule lists, as of the date of this Agreementhereof, a correct and complete list of each of the following types written contracts and agreements of Contracts the Company and each Subsidiary (such contracts and agreements, together with all Company IP Agreements listed or otherwise set forth in Section 3.14(b) of the Disclosure Schedule, being “Material Contracts”):
(i) each contract, agreement, invoice, purchase order and other arrangement related to their Business under the terms of which the Company or any Subsidiary: (x) is reasonably expected to pay or otherwise give consideration of more than $250,000 in the aggregate during the calendar year ending December 31, 2015 or (y) is reasonably expected to pay or otherwise give consideration of more than $1,000,000 in the aggregate over the remaining term of such contract;
(ii) each Significant Customer Fiber Contract and Significant Customer Fiber Contract MSA;
(iii) all material 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 Subsidiary is a party or by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000party;
(iv) each Contract all material management contracts and contracts with respect to an interest, rate, currency independent contractors or other swap consultants (or derivative transaction (other than those between the Company and its Subsidiariessimilar arrangements) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any Subsidiary is a party and that cannot be cancelled by the Company or such Subsidiary without penalty or further payment and without more than 30 days’ notice;
(v) all contracts and agreements relating to the incurrence of its Subsidiaries has continuing “earn-out” (A) Indebtedness of the Company or similar obligations that could result in payments any Subsidiary for borrowed money and (B) any other Indebtedness of the Company or any Subsidiary in excess of $1,000,000 50,000;
(vi) all contracts and agreements (other than confidentiality agreements entered into in the aggregateordinary course of business and consistent with past practice) that limit or purport to limit the ability of the Company or any Subsidiary to compete in any line of business or with any Person or in any geographic area or during any period of time;
(vii) each “material contract” all contracts and agreements between or among the Company or any Subsidiary, on the one hand, and the Seller or any officer, director, or Affiliate (as such term is defined in Item 601(b)(10other than the Company and Subsidiaries) of Regulation S-K under the Securities Act)Seller, whether or not filed by any officer or director of the Company with or any Subsidiary, or any immediate family member of any of the SECforegoing, on the other hand;
(viii) all contracts and agreements providing for benefits under any Contract governing a Related Party Transaction (as defined below)Plan;
(ix) any registration rights agreements with respect to securities all leases or subleases for the Leased Real Property set forth in Section 3.15(b) of the CompanyDisclosure Schedule;
(x) any employment all leases for each item of machinery, equipment, tools, supplies, furniture, fixtures, personalty, vehicles, and other tangible personal property used in the Business of, or consulting Contract (in each case with respect to which leased by, the Company has continuing obligations as of the date hereof) with or any current Subsidiary that (A) executive officer is reasonably expected to involve consideration of more than $250,000 in the Companyaggregate during the calendar year ending December 31, 2015, or (B) member is reasonably expected to involve consideration of more than $1,000,000 to a particular third party (including the Seller or any of its Affiliates (other than the Company and the Subsidiaries)) in the aggregate over the remaining term of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; andcontract;
(xi) any other Contract all material (A) right-of-way use contracts and (B) access or series of related Contracts under which it would reasonably be expected that the Company attachment contracts, including agreements relating to (1) access or attachment to utility poles or to placing fiber within underground conduits or across easements and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”2) or make annual payments of $5,000,000 or moreregeneration site rights, in each case, during any twelve (12) month period for the private fiber optic networks or the remaining period of such Contract, if shorter. Each Contract other Fiber of the type described Company and the Subsidiaries;
(xii) all contracts granting the other party to such contract or a third party “most favored nation” status that applies to the price of services provided by the Company or any Subsidiary;
(xiii) all contracts that provide for “exclusivity” or any similar requirement in clauses favor of any Person other than the Company or any Subsidiary;
(ixiv) through all contracts containing any “non-solicitation”, “no-hire” or similar provisions that restrict the Company or any Subsidiary;
(xixv) is referred all collective bargaining agreements or other agreements or arrangements with any labor union; and
(xvi) all joint venture, partnership and material development contracts. Notwithstanding the foregoing or anything herein to herein as a “Company the contrary, the Excluded Contracts shall not constitute Material Contract”Contracts.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not hadis not, and would not reasonably be expected to havebe, individually or in the aggregate, material to the Company and the Subsidiaries, taken as a Company Material Adverse Effectwhole, (i) each Company Material Contract is valid and binding on the Company or the Subsidiary that is a party thereto and is in full force and effect, (ii) upon consummation of the transactions contemplated by this Agreement and the Ancillary Agreement, except with respect to consents set forth in Section 3.05 of the Disclosure Schedule that are not obtained, each Material Contract shall continue in full force and effect andwithout any penalty or other adverse consequence, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge (iii) none of the Company and the Subsidiaries is in breach of, or default under, any other party to a Company Material Contract, and no event has occurred and no condition exists that would, with or without notice, the lapse of time, or both, constitute a breach of or a default by the Company or any Subsidiary under any Material Contract, and (iv) to the Seller’s Knowledge, no other party (other than the Company or any Subsidiary) to any Material Contract (A) is in violation of breach of, or in default under any provision of under, such Company Material Contract. True , or (B) has given written or oral notice that it will terminate (whether or not subject to any contingency) such Material Contract or not renew such Material Contract beyond the expiration of its then-current term.
(c) The Seller has made available to the Purchaser true and complete copies of all Material Contracts.
(d) There is no contract, agreement or other arrangement granting any Person any preferential right to purchase any of the Company Material Contracts and Assets or any material amendments thereto have been made available to Parent prior to of the date of this AgreementShares.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Crown Castle International Corp), Stock Purchase Agreement (Quanta Services Inc)
Material Contracts. (a) Section 4.21(a) 5.14 of the Company Disclosure Letter sets forth, Schedule contains a complete and correct list of each of the following contracts as of the date of this Agreement, Agreement to which either the Company or any of its Subsidiaries is a correct party to or legally bound:
(i) each Contract between the Company or any of its Subsidiaries and complete list of each any of the following types 10 largest customers of the Company and its Subsidiaries (determined on the basis of aggregate revenues received by the Company or any of its Subsidiaries over the four consecutive fiscal quarter period ended October 2, 2006);
(ii) except for the Contracts disclosed in clause (i) above, each Contract that involves sale of products, performance of services or development commitments by the Company or any of its Subsidiaries, providing for either (A) annual payments of $1,000,000 or more or (B) aggregate payments of $2,000,000 or more;
(iii) each Contract between the Company or any of its Subsidiaries and any of the 10 largest suppliers or licensors to the Company and any of its Subsidiaries (determined on the basis of aggregate payments made by the Company or any of its Subsidiaries over the four consecutive fiscal quarter period ended October 2, 2006);
(iv) any partnership, joint venture or other similar agreement or arrangement;
(v) each Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(vi) each Contract relating to Indebtedness or the deferred purchase price of property of or by the Company or any of its Subsidiaries (in either case, whether incurred, assumed, guaranteed or secured by any asset) entered into other than in the ordinary course of business consistent with past practice;
(vii) each Contract to which the Company or any of its Subsidiaries is a party creating or by which any of their respective granting a Lien (including Liens upon properties acquired under conditional sales, capital leases or assets is bound:other title retention or security devices), other than Permitted Liens;
(iviii) each Contract that (A) limits or restricts in any material respect under which the Company and or any of its Subsidiaries from competing has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries and other than extensions of credit or loans in any line the ordinary course of business consistent with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholepast practice);
(iiix) each Contract that is a joint venture any agency, dealer, sales representative, marketing or partnership other similar agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets business of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, as currently conducted;
(x) acquisitions each Contract that contains provisions restricting the Company or dispositions any Subsidiary from competing in any line of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or with any Person or in any area or which would so restrict Parent, the Company or any of their respective Affiliates after the Effective Time;
(yxi) of supplies, inventory, products, equipment, properties each Contract that (A) grants to any Third Party any exclusive license or supply or distribution agreement or other assets exclusive rights, (B) grants to any Third Party any “most favored nation” rights, rights of first refusal, rights of first negotiation or similar rights with respect to any product, service or Intellectual Property Rights that are obsolete, worn out, surplus or no longer used or useful in material to the conduct of business of the Company or any of its Subsidiaries as currently conducted or (C) contains any provision that requires the purchase of all or a specified substantial portion of the Company’s or any of its Subsidiaries’ requirements from a given third party, or any other similar provision;
(vixii) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” been granted any license to Intellectual Property Rights that is material to the business of the Company or similar obligations that could result any of its Subsidiaries as currently conducted, other than licenses granted in the ordinary course of business of the Company and its Subsidiaries consistent with past practice;
(xiii) each lease or sublease (whether of real or of tangible personal property providing for annual payments in excess of $1,000,000 in 50,000) to which the aggregateCompany or any of its Subsidiaries is a party as either lessor or lessee;
(viixiv) each any agreement with any director or officer of the Company or any Subsidiary or with any “material contractassociate” or any member of the “immediate family” (as such term is terms are respectively defined in Item 601(b)(10Rules 12b-2 and 16a-1 of the 1▇▇▇ ▇▇▇) of Regulation S-K under the Securities Act), whether any such director or not filed by the Company with the SEC;officer; or
(viiixv) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities other agreement, commitment, arrangement or plan not made in the ordinary course of business involving the Company;
(x) any employment payment or consulting Contract (in each case with respect to which the Company has continuing obligations as receipt of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary payments in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”1,000,000.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Kla Tencor Corp), Merger Agreement (Therma Wave Inc)
Material Contracts. (a) Except for (x) this Agreement or any Contract filed with or furnished to the Commission by the Company or any of its Subsidiaries as an exhibit to a Company SEC Document prior to the date of this Agreement (including, for the avoidance of doubt, any Contract incorporated into any such Company SEC Document by reference to a Company SEC Document filed or furnished prior to such date) and (y) Real Property Leases, Section 4.21(a) 5.12 of the Company Disclosure Letter sets forth, forth as of the date of this Agreement, a correct and complete list of hereof each of the following types of Contracts written Contract to which the Company or any of its Subsidiaries is a party to or by which bound as of the date hereof of the type described in any of their respective properties or assets is bound:the following clauses (collectively, the “Material Contracts”):
(i) each any Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that which is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under promulgated by the Securities ActCommission);
(ii) any Contract (other than between or among (x) the Company and its wholly owned Subsidiaries or (y) wholly owned Subsidiaries of the Company) relating to outstanding Indebtedness pursuant to which the Company or any of its Subsidiaries is liable or obligated for an amount in excess of Fifty Million Dollars ($50,000,000);
(iii) any Contract that (A) restricts the Company or any of its Subsidiaries from participating or competing in any line of business, market or geographic area, (B) contains most favored customer pricing provisions in favor of the counterparty of the Company or Company Subsidiary or (C) provides for “exclusivity” or any similar requirement or “most favored nation” or similar rights in favor of the counterparty of the Company or any Company Subsidiary, in the case of each of sub-clauses (A) (B) and (C), whether or not filed that is material to the businesses of the Company and its Subsidiaries, taken as a whole, except for any such Contract (x) that may be canceled without any material payment by the Company or any such Subsidiary upon notice of ninety (90) or fewer days, (y) between the Company and any of its Subsidiaries, on the one hand, and a distributor or sales agent, sales representative or similar Person, on the other hand or (z) between or among (1) the Company and its wholly owned Subsidiaries or (2) wholly owned Subsidiaries of the Company);
(iv) any joint venture, partnership, joint research, joint development or joint marketing or similar Contract (other than between or among (x) the Company and its wholly owned Subsidiaries or (y) wholly owned Subsidiaries of the Company), in each case, that is material to the businesses of the Company and its Subsidiaries, taken as a whole;
(v) any customer, distribution, manufacturing, sales, supply, vendor or manufacturing Contract under which payments by or to the Company or any of its Subsidiaries were made in excess of Five Million Dollars ($5,000,000) for the twelve-month period ended November 30, 2013, other than (x) any customer, distribution or sales Contract in a form substantially similar to the form distribution agreement made available to Parent and (y) any Contract between or among (1) the Company and its wholly owned Subsidiaries or (2) wholly owned Subsidiaries of the Company;
(vi) any license (other than between or among (x) the Company and its wholly owned Subsidiaries or (y) wholly owned Subsidiaries of the Company) that is material to the business of the Company and its Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries has (A) acquired the right to use any Intellectual Property from any third party (but excluding licenses for commercially available software or software-as-a-service), or (B) granted to any third party any license to use any Owned Company Intellectual Property, other than, in the case of each of sub-clauses (A) and (B), licenses or grants of rights ancillary to commercial agreements (including manufacturing, customer, supply, distribution, retail, development, marketing and similar agreements) entered into in the Ordinary Course of Business;
(vii) any Contract (other than between or among (x) the Company and its wholly owned Subsidiaries or (y) wholly owned Subsidiaries of the Company) with the SECrespect to (A) a merger, acquisition or disposition of capital stock of any Person or (B) an acquisition or disposition of assets of any Person, in each case, for aggregate consideration in excess of Twenty Five Million Dollars ($25,000,000) (other than any Contract relating to a transaction that has been consummated or terminated without any material continuing obligations or liabilities);
(viii) any Contract governing a Related Party Transaction (as defined below);Collective Bargaining Agreements; or
(ix) any registration rights agreements with respect Contract under which payments by or to securities the Company or any of its Subsidiaries were made in excess of Five Million Dollars ($5,000,000) for the Company;
(x) any employment or consulting Contract (in each case with respect to twelve-month period ended November 30, 2013 and under which the Company has continuing obligations as or any of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 has any “take or more (each, a “Revenue Contract”) pay” or make annual payments of $5,000,000 or moreminimum purchase obligation, in each case, during any twelve (12) month period or that is material to the remaining period of such Contract, if shorter. Each Contract businesses of the type described in clauses (i) through (xi) is referred to herein Company and its Subsidiaries, taken as a “whole, except for any such Contract that may be canceled without any payment by the Company Material Contract”or any such Subsidiary upon notice of ninety (90) or fewer days.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, (i) none of the Company or any of its Subsidiaries is in breach of any Material Contract, (ii) each Company Material Contract is valid and binding and in full force and effect and constitutes the legal, valid and binding obligation of the Company and its Subsidiaries party thereto, as applicable, and, to the Knowledge of the Company, enforceable against the of each other party or parties thereto thereto, enforceable in accordance with its terms, subject except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to the Enforceability Exceptions. Except for breachesor affecting creditors’ rights or by general equity principles, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither (iii) none of the Company nor or any of its SubsidiariesSubsidiaries party to or, nor to the Knowledge of the Company Company, any other party to a Company Material Contract is in default under or in breach or violation of any such Material Contract, is in (iv) there has not occurred any event or events that, with notice or lapse of time or both, would constitute a default, breach or violation by the Company or any of or in default its Subsidiaries or, to the Knowledge of the Company, any other party, under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to (v) as of the date of this Agreement, none of the Company or any of its Subsidiaries has received any written claim or notice of default, termination or cancellation under any Material Contract (other than a notice of termination or cancellation upon the expiration or lapse of such Material Contract in accordance with the terms thereof). Except with respect to any Collective Bargaining Agreements, a true, correct and complete copy of each written Material Contract has been made available to Parent; provided, however, that the Company may redact any competitively sensitive information from any such copy.
Appears in 2 contracts
Sources: Merger Agreement (LVB Acquisition, Inc.), Merger Agreement (Zimmer Holdings Inc)
Material Contracts. (a) Section 4.21(a4.17(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, Schedule identifies each Contract that constitutes a correct and complete list of each of the following types of Contracts Company Material Contract to which the Company or any of its Subsidiaries is a party to or bound by which any and is in effect as of their respective properties or assets is boundthe date of this Agreement. For purposes of this Agreement, each of the following shall be deemed to constitute a “Company Material Contract”:
(i) each “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC) that would be required to be filed by the Company with the SEC;
(ii) employment Contract or Contract with an individual for the provision of consulting services in lieu of employment that provides for annual cash base salary compensation as of the date hereof exceeding $200,000 per year;
(iii) Contract with any current or former director or officer of the Company or its Subsidiaries that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(iv) Contract between (x) the Company or any of its Subsidiaries, on the one hand, and (y) any Affiliate of the Company (other than the Company’s Subsidiaries), on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(v) Contract containing covenants of the Company or any of its Subsidiaries not to compete in any geographical area (but excluding any Contracts pursuant to which the Company or any of its Subsidiaries grants exclusive distribution rights to any third party);
(vi) Contract that (A) limits creates a partnership or restricts in joint venture or similar agreement with respect to any material respect business of the Company and its Subsidiaries from competing in any line Company;
(vii) material written Contract (other than purchase orders) with the top ten (measured by dollar sales volume during the fiscal year ended January 3, 2009) customers, suppliers or service providers of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(iiviii) each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness by the Company (including agreements related to interest rate or currency hedging activities) with any third party in excess of $5.0 million;
(ix) collective bargaining agreement;
(x) Contract for the sale of assets since January 3, 2009 (other than inventory in the ordinary course of business consistent with past practice) in excess of $2.5 million;
(xi) written Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any Subsidiary would be required to purchase or sell any securities of any entity;
(xii) settlement or conciliation agreement or similar agreement with any Governmental Authority or order or consent of a Governmental Authority to which the Company or any of its Subsidiaries is a joint venture subject involving future performance by the Company or partnership agreement any of its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole;
(iiixiii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between under which the Company and its wholly owned Subsidiaries) relating Subsidiaries are obligated to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after make annual payments following the date of this Agreement to be in excess of $1,000,000 2.5 million (other than leases, subleases or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful real property license Contracts in the conduct ordinary course of business of the Company or its Subsidiariesconsistent with past practice);
(vixiv) each Contract acquisition agreement (other than with respect to inventory in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has continuing indemnification, “earn-out” or similar obligations other contingent obligations, in each case, that could would be reasonably be expected to result in payments in excess of $1,000,000 in the aggregate;2.5 million; or
(viixv) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by Contracts granting the Company with or its Subsidiaries a license to use third party Intellectual Property that is material to the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities conduct of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as business of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (eachSubsidiaries, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein taken as a “Company Material Contract”whole, as currently conducted (other than Contracts for generally available Software).
(b) The Company has made available to Parent copies of each Company Material Contract in effect as of the date of this Agreement, together with all material amendments and supplements thereto in effect as of the date of this Agreement. Except for as set forth in Section 4.17(b) of the Company Disclosure Schedule, neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract that has terminated where such breach or expired default would have a Company Material Adverse Effect. Except as set forth in accordance with its terms and except as has not hadSection 4.17(b) of the Company Disclosure Schedule, and to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation in all material respects 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, except that (A) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect relating to creditors’ rights generally (whether considered in a proceeding of Law or equity), and (B) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. Except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries, nor to the Knowledge Subsidiary of the Company has received any written notice or claim of default under any Company Material Contract or any written notice of an intention to, and to the knowledge of the Company, no other party to any Company Material Contract intends to, terminate or not renew any Company Material Contract (including as a result of the execution and performance of this Agreement), (ii) to the knowledge of the Company, no event has occurred that, with or without notice or lapse of time or both, would result in a material breach or a material default under any Company Material Contract, is in violation and (iii) the Company and the Subsidiaries of or in default the Company have performed all respective material obligations required to be performed by them as of the date of this Agreement under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any are not (with or without the lapse of time or the giving of notice, or both) in material amendments thereto have been made available to Parent prior to the date of this Agreementbreach thereunder.
Appears in 2 contracts
Sources: Merger Agreement (FGX International Holdings LTD), Merger Agreement (Essilor International /Fi)
Material Contracts. (a) Section 4.21(a3.17(a) of the Company Disclosure Letter Schedule sets forth, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts related to which the Company Business or any of its Subsidiaries the Stations to which any Seller Party or any Station Sharing Company is a party party, or by which any of their respective properties or assets is bound:
(i) each any Contract that that, (A) limits or restricts in any material respect the Company and its Seller Party or any Station Sharing Company, or any of their Subsidiaries from competing in any line of business with any Person in any geographic region or region, (B) contains exclusivity obligations or restrictions binding onon the Business or (C) requires the Business to conduct any business on a “most favored nations” basis with any third party, and and, in the case of each of clauses (A) through (C), that is material to, to the Company and its SubsidiariesBusiness or the Purchased Assets, taken as a whole;
(ii) each any Contract that is a joint venture venture, partnership, limited liability company or partnership similar agreement that is material to the Company and its SubsidiariesBusiness or the Purchased Assets, taken as a whole;
(iii) each any Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts Program Rights under which it would reasonably be expected that the Company and its Subsidiaries Business would receive make annual payments in excess of $7,000,000 5,000,000 per year;
(iv) any network affiliation Contract (or similar Contract) with ABC, CBS, Fox, NBC, CW or MyNetworkTV (collectively, the “Material Affiliation Agreements”);
(v) any Contract relating to cable or satellite transmission or retransmission with any MVPDs that reported more than 50,000 paid subscribers to any Seller Party or any Station Sharing Company, in each case, for September 2018;
(vi) any Contract that is a Sharing Agreement and any related option agreement (other than those among Seller Parties);
(vii) any Contract that is a channel sharing agreement with a Third Party or parties with respect to the sharing of spectrum for the operation of two (2) or more separately owned television stations or similar Contract primarily related to the Business;
(eachviii) any Employment Agreement not terminable at will by any Seller Party for the employment of any Employee on a full-time, part-time or consulting basis with base compensation in excess of $350,000;
(ix) any Contract (other than those for Program Rights) pursuant to which the Seller Parties has sold or traded commercial air time in consideration for property or services with a “Revenue Contract”value in excess of $500,000 in lieu of or in addition to cash; and
(x) or any Contract not otherwise disclosed in Section 3.17 of the Disclosure Schedule (other than those for Program Rights) under which it was reasonably expected that any Seller Party would make annual payments of $5,000,000 3,000,000 or moremore during a calendar year, in each case, during any twelve except for those Contracts that can be cancelled by the Seller Parties without cause on less than ninety (1290) month period or the remaining period of such Contract, if shorterdays’ notice. Each Contract of the type described in clauses (i) through (xix) is referred to herein as a “Company Material ContractStation Agreement”.
(b) Except for any Company Material Contract Station Agreement that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract Station Agreement is valid and binding and in full force and effect and, to the Knowledge of the CompanySeller, enforceable against the other party or parties thereto in accordance with its terms, terms subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor Seller or Tribune, as applicable, or any of its their respective Subsidiaries, nor to the Knowledge of the Company Seller any other party to a Company Material ContractStation Agreement, is in violation of or in default under any provision of such Company Material ContractStation Agreement. True and complete copies of the Company Material Contracts Station Agreements and any material amendments thereto have been made available to Parent Buyer prior to the date of this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Tegna Inc), Asset Purchase Agreement (Nexstar Media Group, Inc.)
Material Contracts. (a) Section 4.21(a) of Set forth on Schedule 3.10, which incorporates by reference EXHIBITS B-1, ▇-▇, ▇-▇ ▇▇▇ B-4 and EXHI▇▇▇▇ ▇-▇, ▇-▇, ▇-▇ ▇▇▇ D-4 (to the Company Disclosure Letter sets forthextent Contracts are specifically listed therein), as of the date of this Agreement, is a correct and complete list of each all of the following types of Contracts to which the Company Company, the Subsidiary or any of its Subsidiaries the Practice is a party or by which any of their respective properties or assets them is bound, used in, related to or necessary for the operation of the Acquired Businesses or the Practice, provided, however, with respect to the Practice except as set forth herein, only those Contracts relating to the operations of the Practice managed by the Company pursuant to and including the Business Management Agreement are required to be set forth on Schedule 3.10:
(i) each Contract that all Contracts relating to the employment of any person, and all bonus, deferred compensation, pension, profit sharing, stock option, employee stock purchase, phantom stock, retirement and other employee benefit plans;
(Aii) limits all Contracts which contain restrictions with respect to payment of dividends or restricts any other distribution in respect of its capital stock;
(iii) all Contracts relating to capital expenditures in excess of $15,000;
(iv) all loans, advances to, and investments in, any material other Person, and all Contracts relating to the making of any such loan, advance or investment;
(v) all guarantees and other contingent liabilities with respect to any indebtedness or obligation of any other Person (other than the endorsement of negotiable instruments for collection in the Ordinary Course of Business);
(vi) all management services, consulting and any other similar type contracts;
(vii) all leases of personal property providing for lease payments in excess of $5,000 per annum and a term of more than two years;
(viii) all Contracts materially limiting the freedom of the Company and its Subsidiaries from competing to engage in any line of business or to compete with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below)Person;
(ix) any registration rights agreements with respect to securities all Contracts not entered into in the Ordinary Course of the CompanyBusiness;
(x) any employment or consulting Contract all Contracts (in each case with respect other than contracts relating to capital expenditures) which involve the expenditure by the Company has continuing obligations or the Subsidiary, as the case may be, of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of more than $250,000; and10,000;
(xi) any other Contract with any director, officer or series employee of related either of the Sellers or Contract with any Related Person of either of the Sellers;
(xii) all Contracts under which it would might reasonably be expected that to have a potential Material Adverse Effect on the Company business or operations of either of the Sellers;
(xiii) all Contracts with Payors or contracts to provide optometric services or health care services;
(xiv) all Contracts engaging a person to perform services as an independent contractor and/or consultant; and
(xv) all other Contracts material to the business, operations and its Subsidiaries would receive annual payments assets of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period the Sellers or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Practice.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectset forth on Schedule 3.10, each Company Material Contract set forth on Schedule 3.10 is a valid and binding agreement of the Company, the Subsidiary or the Practice, as the case may be, and in full force and effect and enforceable in accordance with its terms. Subject to obtaining the requisite consents set forth on Schedule 3.11(a), 3.11(b) or 3.23(b) hereto, the enforceability of such Contracts will not be affected in any manner by the execution and delivery of this Agreement and the consummation of the Subject Transactions. None of the Company, the Subsidiary or the Practice has violated any of the material terms or conditions of any of the Contracts set forth on Schedule 3.10 to which it is a party and none of the Company, the Subsidiary or the Practice is otherwise in material default thereof, and, to the Knowledge of the Sellers, except as set forth on Schedule 3.10, all of the material terms and conditions to be performed by any party thereto other than the Company, enforceable against the other Subsidiary and the Practice have been fully performed and each such Contract is free from any right of termination on the part of any party thereto. There exists no default or parties thereto in accordance with its termsevent of default under any of the Contracts set forth on Schedule 3.10 or event, occurrence, condition or act (including the purchase of the Assets hereunder, subject to obtaining the Enforceability Exceptionsrequisite consents set forth on Schedule 3.11(a), 3.11(b) or 3.23(b) hereto) which, with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of default thereunder. Except for breaches, violations None of the parties to any of the Contracts has given notice (written or defaults which have not had, oral) of its intent to terminate such Contract and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor the Subsidiary has Knowledge that any party thereto intends to terminate any Contract prior to or following the consummation of the Subject Transactions. There have been no amendments or modifications to any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreementexcept as set forth on Schedule 3.10.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Vision Twenty One Inc), Asset Purchase Agreement (Eye Care Centers of America Inc)
Material Contracts. (a) Section 4.21(a) Schedule 4.19 of the Company Disclosure Letter Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forthforth a true and complete list, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundof:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Exchange Act);
(ii) each Contract that provides for the acquisition, whether disposition, license, use, distribution or not filed outsourcing of assets, services, rights or properties (other than Oil and Gas Properties) with respect to which the Company reasonably expects that the Company and its Subsidiaries will make annual payments in excess of 250,000 or aggregate payments in excess of $1,000,000;
(iii) each Contract (A) for Indebtedness or the deferred purchase price of property by the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) or (B) that creates a capitalized lease obligation, except, in the cases of clauses (A) and (B) with an aggregate principal amount not in excess of $200,000, and other than agreements solely between or among the SECCompany and its Subsidiaries;
(iv) each Contract to which the Company or any Subsidiary of the Company is a party that (A) restricts the ability of the Company or any Subsidiary of the Company to compete in any business or with any Person in any geographical area, (B) requires the Company or any Subsidiary of the Company to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of any third party, except in the case of each of clauses (A), (B) and (C) for such restrictions, requirements and provisions that are not material to the Company and its Subsidiaries;
(v) any Contract providing for the purchase or sale by the Company or any of its Subsidiaries of Hydrocarbons that (A) has a remaining term of greater than sixty (60) days and does not allow the Company or such Subsidiary to terminate it without penalty on sixty (60) days’ notice or less, (B) contains a minimum throughput commitment, minimum volume commitment, “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 or (C) contains acreage dedication, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead that, in each case, cover, guaranty, dedicate or commit (I) more than 1,000 net acres or (II) volumes in excess of 10,000 MMcf of gas or 2,000 boe of liquid Hydrocarbons on a monthly basis (calculated on a yearly average basis);
(vi) any acquisition or divestiture Contract that contains “earn out” or other similar contingent payment obligations (other than asset retirement obligations, plugging and abandonment obligations and other reserves of the Company set forth in the Company Reserve Report), that would reasonably be expected to result in annual payments in excess of $100,000;
(vii) each Contract for lease of personal property or real property (other than Oil and Gas Properties) involving payments in excess of $100,000 in any calendar year or aggregate payments in excess of $1,000,000 over the life of the Contract that are not terminable without penalty or other liability to the Company (other than any ongoing obligation pursuant to such Contract that is not caused by any such termination) within sixty (60) days, other than Contracts related to drilling rigs;
(viii) each Contract that could require the disposition of any Contract governing a Related Party Transaction material assets or line of business of the Company or its Subsidiaries (as defined belowor, after the Effective Time, Parent or its Subsidiaries);
(ix) each Contract involving the pending acquisition or sale of (or option to purchase or sell) any registration rights material amount of the assets or properties of the Company or its Subsidiaries (including any Oil and Gas Properties), taken as a whole, other than Contracts involving the acquisition or sale of (or option to purchase or sell) Hydrocarbons in the ordinary course of business;
(x) each ISDA Master Agreement for any Derivative Transaction;
(xi) each material partnership, joint venture or limited liability company agreement, other than any customary joint operating agreements with respect to securities or unit agreements affecting the Oil and Gas Properties of the Company;
(xxii) each collective bargaining agreement or other Contract with any employment labor union, works council, or consulting Contract (in each case with respect other labor organization to which the Company has continuing obligations as or any of its Subsidiaries is a party or is subject;
(xiii) each Contract relating to a Company Related Party Transaction; and
(xiv) each joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or similar Contract requiring the date hereof) with Company or any current of its Subsidiaries to make expenditures from and after January 1, 2021 that either (A) executive officer would reasonably be expected to be in excess of $1,000,000 in the Companyaggregate, (B) member is material to the operation of the Company Boardand its Subsidiaries, taken as a whole, or (C) contains an area of mutual interest or any “tag along” or “drag along” (or similar rights) allowing a third party, or requiring the Company Employee providing for an annual base salary or any of its Subsidiaries, to participate in excess any future transactions with respect to any assets or properties of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or moreSubsidiaries, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases.
(b) Collectively, the Contracts that are required to be set forth in Section 4.19(a) are herein referred to as the “Company Contracts.” A complete and correct copy of each of the Company Contracts has been made available to Parent. Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect andeffect, subject, as to enforceability, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability ExceptionsCreditors’ Rights. Except for breaches, violations or defaults which have not had, and as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or its Subsidiaries, or, to the knowledge of the Company, any other party thereto. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Contract and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Contract to terminate for default, convenience or otherwise any Company Contract, nor to the Knowledge knowledge of the Company Company, is any other such party threatening to do so, in each case except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Merger Agreement (Extraction Oil & Gas, Inc.)
Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter Schedule 4.8 sets forthforth a list, as of the date of this AgreementClosing Date, a correct and complete list of each of the following types Contracts relating primarily to the Business (other than the Contracts that individually have a future liability not in excess of Contracts $100,000 or are cancelable by Seller or an Affiliate of Seller upon notice of not more than 90 calendar days for a cost of not more than $100,000), copies of which have been made available to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundPurchaser:
(i1) each Contract Contracts for the purchase or sale of assets, products or services;
(2) Contracts for the lease of Equipment;
(3) The Real Property Leases;
(4) Contracts containing a covenant that (A) limits or restricts in any material respect the Company and its Subsidiaries Seller from competing engaging in any line of business or competing with any Person;
(5) Employment, consulting or independent contractor Contracts, other than unwritten at-will employment Contracts;
(6) Sales commission agreements and similar Contracts providing for payments to any Person based on sales, purchases, or profits, other than direct payments for goods;
(7) Joint venture, partnership or other Contracts involving a sharing of profits, losses, costs or liabilities of the Business with any other Person (but not of any other part of Seller’s business);
(8) Contracts for capital expenditures, other than (A) capital expenditures reflected in any geographic region the capital expenditures budget of the Business previously made available to Seller or (B) contains exclusivity obligations which involves or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material reasonably likely to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee involve aggregate consideration of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of not more than $1,000,000100,000; and
(9) Contracts with any director, excluding, officer or employee of Seller (in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current than (A) executive officer of the Companyemployment agreements covered in Section 4.8(a)(5), (B) member payments of compensation for employment to employees in the Company Board, or ordinary course of business and (C) Company participation in Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Benefit Plans by employees).
(b) Except for any Company Each Contract required to be set forth on Schedule 4.8 and the other schedules, if any, referred to in Section 4.8(a) (the “Material Contract that has terminated or expired in accordance with its terms and except as has not hadContracts”) is a legal, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect obligation of Seller and, to the Knowledge of the CompanySeller, each other party thereto, enforceable against the other party or parties thereto in accordance with its terms, except to the extent that its enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium, receivership and similar laws affecting the Enforceability Exceptionsenforcement of creditors’ rights generally and to general equitable principles. Except for breachesSeller has performed in all material respects all of the obligations required to be performed by it to date and is not in default under the Material Contracts, violations or defaults which have not hadand, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any Seller, no other party to a Company any such Material Contract, Contract is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreementthereunder, except as otherwise set forth on Schedule 4.8(b).
Appears in 1 contract
Material Contracts. (a) Except for this Agreement and for the Contracts disclosed in the Filed Company SEC Documents, Section 4.21(a4.15(a) of the Company Disclosure Letter sets forthforth a true and complete list, as of the date of this Agreement, a correct and the Company has made available to Parent true and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundcopies, of:
(i) each Contract that (A) limits or restricts in any material respect would be required to be filed by the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole“material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act and that, as of the date of this Agreement, has not been so filed;
(ii) each Contract that to which the Company or any Company Subsidiary is a joint venture party that (A) limits, curtails or partnership agreement restricts the ability of the Company or any Company Subsidiary to compete in any business or with any Person in any geographical area, (B) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party (C) provides for “exclusivity” or any similar requirement in favor of any third party or (D) provides preferential rights or rights of first or last offer or refusal to any third party, except in the case of each of clauses (A), (B), (C) and (D) for such restrictions, requirements and provisions that is are not material to the Company and its the Company Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness under which the Company or credit agreement, note, bond, mortgage, indenture any Company Subsidiary licenses or other binding commitment sublicenses Intellectual Property from or to any third party (other than letters generally commercially available, off-the-shelf software programs and non-exclusive licenses to customers in the ordinary course of credit and those between business consistent with past practice), in each case, solely to the extent such Contract provides for fees in excess of $5,000,000 in the fiscal year ending March 30, 2018;
(iv) each Company Government Contract that is reasonably likely, based solely on revenue as of December 29, 2017, to result in revenue to the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money or a Company Subsidiary in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest35,000,000 in the fiscal year ending March 30, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,0002018;
(v) each Contract that is an acquisition agreement constitutes a commitment relating to Indebtedness for borrowed money or a divestiture agreement pursuant to which (A) the deferred purchase price of property by the Company reasonably expects that it is required to pay total consideration or any Company Subsidiary (including assumption of debtwhether incurred, assumed, guaranteed or secured by any asset) after the date of this Agreement to be in excess of $1,000,000 10,000,000, other than Contracts solely between or (B) any other Person has the right to acquire any assets of among the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its SubsidiariesSubsidiary;
(vi) each Contract pursuant to under which the Company or any of its Subsidiaries has continuing “earn-out” Company Subsidiary is the landlord, sublandlord, tenant, subtenant or similar obligations that could result in payments in excess of $1,000,000 in the aggregateoccupant with respect to any material real property leased, subleased, licensed or otherwise occupied;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) partnership, joint venture or operating or limited liability company agreement or other similar equity investment agreements that involves a sharing of Regulation S-K under the Securities Act), whether or not filed by the Company profits with the SECa third party;
(viii) each Contract that (A) would or would reasonably be expected to prevent, materially delay or materially impede the consummation of the Transactions, or (B) upon the consummation of the Merger, would (either alone or upon the occurrence of any Contract governing a Related Party Transaction additional acts or events, including the passage of time) result in any payment or benefit (as defined below);whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any right to any payment or benefits, from Parent, Merger Sub, the Company or any of their respective Subsidiaries to any officer, director, consultant or employee of any of the foregoing; and
(ix) any registration rights agreements with respect each Contract to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to by which the Company has continuing or any Company Subsidiary is a party or bound entered into in connection with the settlement or other resolution of any Proceeding involving the future performance of material obligations as of by the date hereof) with Company or any current (A) executive officer of the Company, (B) member Company Subsidiaries. The Contracts of the Company Board, or (C) any Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described referred to in clauses (i) through (xiix) is above (whether in effect on the date of this Agreement or entered into following the date of this Agreement and prior to the Closing Date), together with the Filed Company Contracts and the Company Government Contracts, are collectively referred to herein as a “Company Material Specified Contract.”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in As of the aggregate, a Company Material Adverse Effectdate of this Agreement, each of the Company Material Contract Specified Contracts is valid and valid, binding and in full force and effect enforceable by the Company or the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, enforceable against the each other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadthereto, and is in full force and effect (i) except for such failures to be valid, binding or enforceable or to be in full force and effect as would not reasonably be expected to haveto, individually or in the aggregate, have a Company Material Adverse EffectEffect and (ii) except insofar as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws of general applicability relating to or affecting creditors’ rights, or by principles governing the availability of equitable remedies, whether considered in a Proceeding at law or in equity. As of the date of this Agreement, to the Knowledge of the Company, neither the Company nor any of its SubsidiariesCompany Subsidiary is in default under any Company Specified Contract, nor nor, to the Knowledge of the Company, does any condition exist that, with notice or lapse of time or both, would constitute a default thereunder by the Company or any Company Subsidiaries party thereto, except in each case as would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no other party to any Company Specified Contract is in default thereunder, nor, to the Knowledge of the Company, does any condition exist that with notice or lapse of time or both would constitute a default by any such other party thereunder, except in each case as would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has received any written notice of termination or cancellation under any Company Specified Contract or granted to any third party any rights that would constitute a breach of any Company Specified Contract, is except in violation of or in default under any provision of such each case as would not reasonably be expected to have a Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementAdverse Effect.
Appears in 1 contract
Sources: Merger Agreement (CSRA Inc.)
Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter 3.11.1 IDENTIFICATION. Schedule 3.11.1 delivered hereunder sets forthforth a list, as of the date of this Agreementhereof, a correct and complete list of each of the following types of Contracts matters pertaining to certain contracts and obligations to which the Company or CRSI and any of its the Subsidiaries is are a party or by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit such contracts and those between obligations relating exclusively to the Company Excluded Assets and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;Liabilities):
(iva) each Contract with respect to an interestAll contracts, ratesubcontracts, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration agreements (including assumption of debtteaming agreements) after the date of this Agreement to be in excess and other arrangements having a total value of $1,000,000 or greater (Bbut without duplication of any contract, subcontract, agreement (including any teaming agreement) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract arrangement of the type described in clauses (ib) through (xii) is referred to herein as a “Company Material Contract”.of this Subsection 3.11.1);
(b) Except All loan, bond, surety or debt agreements (including notes and reimbursement agreements relating to letters of credit and guarantees);
(c) All agreements providing for the guarantee by Seller of the obligations of CRSI or any Company Material Contract of the Subsidiaries, including all reimbursement agreements relating to letters of credit issued on behalf of CRSI or any Subsidiary;
(d) All distributorship, commission agent or consulting agreements providing for the marketing and/or sale of the products or services of CRSI or any Subsidiary;
(e) All partnership, limited liability company, strategic partnership and joint venture agreements;
(f) All individualized employment or consulting contracts or similar arrangements obligating CRSI or any of the Subsidiaries to pay more than $100,000 per year;
(g) All contracts or licenses pursuant to which CRSI or any of the Subsidiaries has acquired a license in, or has licensed to others, intellectual property material to the Business or which requires the payment by CRSI or such Subsidiary of a fee of $100,000 or more per year;
(h) All contracts, agreements, instruments or arrangements that has terminated prohibit CRSI or expired any Subsidiary from freely engaging in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or business anywhere in the aggregateworld; and
(i) All contracts, agreements, instruments or arrangements pursuant to which CRSI or any of the Subsidiaries purchases equipment, parts, raw materials or other items from a Company Person who is the sole supplier thereof in the United States to the extent such equipment, parts, raw materials or other items would, if unavailable, have a Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to Effect on the Knowledge Business or CRSI or any of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Material Contracts. Schedule 3.1.7 sets forth a complete and accurate list of all the following Contracts (aother than any such Contracts identified in other Schedules) Section 4.21(a) in effect to which either of the Companies is a party and under which such Company Disclosure Letter sets forth, has any material obligations or liabilities continuing as of the date hereof (including, in the case of this Agreement(B), a correct and complete list of each of as far as it relates to the following types of Flagship Business, any Contracts to which the Company CGG or any of its Subsidiaries a CGG Flagship Affiliate is a party and under which such CGG Flagship Affiliate has any material obligations or by which any liabilities continuing as of their respective properties or assets is boundthe date hereof) :
(i) each Contract that (A) limits loan agreements, security agreements and other written arrangements relating to the borrowing of money or restricts for lines of credit (other than intercompany loans and indebtedness);
(B) agreements and other arrangements with customers providing for (x) the installation, configuration and maintenance during standard warranty periods of any computer software products licensed to third parties ("Licensing Agreements"), or (y) the servicing or maintenance of any computer software products licensed to a third party pursuant to a Licensing Agreement following the expiration of the standard warranty period (it being agreed that a Contract shall be deemed to be a Licensing Agreement hereunder only if a Company has any continuing obligations thereunder to deliver, install, configure or maintain during standard warranty periods any computer software products licensed to third parties);
(C) agreements and other arrangements for the sale of any assets or properties (other than inventory) and for a sale price in excess of US$ 100,000 in any material respect one case or for the Company and its Subsidiaries grant of any options or preferential rights to purchase any assets (other than inventory);
(D) guarantees or similar written arrangements pursuant to which either of the Companies guarantees the obligations of any third party;
(E) contracts or commitments restricting either of the Companies from engaging in or competing in any line of business or with any Person other Person;
(F) partnership or joint venture agreements;
(G) lease agreements in respect of the Leased Real Properties;
(H) research and development agreements;
(I) distribution agreements;
(J) agreements with Governmental Authorities;
(K) agency agreements; and
(L) any geographic region other contract or agreement material to the businesses of the Companies (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (made other than letters in the Ordinary Course of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement Business pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in annual payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not US$ 100,000 may reasonably be expected to havebe made by or to the Companies; (the foregoing Contracts being referred to collectively as the "Material Contracts" and individually as a "Material Contract"). Except as disclosed in Schedule 3.1.7, individually none of the Material Contracts by its terms entitles the counterparty to terminate, or in to modify or accelerate any obligations or rights under, such Material Contract solely by reason of a change of control of either of the aggregateCompanies, and neither CGG nor either of the Companies has received or given written notice that a Company Material Adverse Effect, each Company Material Contract or any co-contractant is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor material default under any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in which default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to remains unremedied as at the date of this Agreementhereof.
Appears in 1 contract
Sources: Securities Purchase Agreement (General Geophysics Co)
Material Contracts. (a) Section 4.21(a4.16(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, Schedule contains a correct and complete list of each of the following types of Contracts contracts and agreements, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:(such contracts and agreements, the “Material Contracts”):
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act)) with respect to the Company and its Subsidiaries;
(ii) each contract and agreement which is likely to involve consideration of more than $100,000, whether in the aggregate, paid to, or not filed received by, the Company and its Subsidiaries over the remaining term of such contract or agreement;
(iii) all joint venture contracts, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) all management contracts;
(v) all contracts with consultants, including any contracts involving the SECpayment 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, in excess of $20,000;
(vi) all contracts and agreements relating to Indebtedness of the Company or any of its Subsidiaries in excess of $20,000;
(vii) each agreement that contains obligations of the Company or its Subsidiaries secured by an Encumbrance (other than a Permitted Encumbrance), and interest rate or currency hedging agreements, in each case in connection with which the aggregate actual or contingent obligations of the Company and its Subsidiaries under such agreement are greater than $20,000;
(viii) all contracts and agreements with any Contract governing a Related Party Transaction (as defined below)Governmental Authority;
(ix) any registration rights all contracts and agreements with respect that limit, or purport to securities limit, the ability of the CompanyCompany or any of its Subsidiaries or any of their respective employees to compete in any line of business or with any Person or entity or in any geographic area or during any period of time;
(x) all material contracts or arrangements that result in any employment Person or consulting Contract entity holding a power of attorney from the Company or any of its Subsidiaries that relates to the Company, any of its Subsidiaries or their respective businesses;
(xi) all Company IP Agreements, other than (A) software license agreements for any third-party non-customized commercially-available software, (B) agreements between the Company or any of its Subsidiaries and their employees, consultants and independent contractors entered into in the ordinary course of business and (C) non-disclosure agreements entered into in the ordinary course of business consistent with past practices;
(xii) all clinical trial agreements;
(xiii) all contracts, agreements and Leases concerning the use, occupancy, management or operation of, or evidencing any interests in, any Real Property (including all contracts, agreements and Leases listed or otherwise set forth in Section 4.12(b) of the Company Disclosure Schedule);
(xiv) all contracts that obligate the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis with any third party;
(xv) each contract entered into after January 1, 2009 or not yet consummated, in each case with respect for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation), of assets (other than assets purchased pursuant to capital expenditures) or capital stock or other equity interests of another person for aggregate consideration under such contract in excess of $50,000;
(xvi) each contract pursuant to which the Company has continuing obligations as or any of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 is bound that includes a continuing indemnification, “earn out” or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or moreother contingent payment obligation, in each case, during that could result in payments in excess of $20,000 and except, in the case of contracts with continuing indemnification provisions, contracts entered into in the ordinary course of business consistent with past practices;
(xvii) each contract between or among the Company or any twelve of its Subsidiaries, on the one hand, and any of their respective Affiliates (12other than the Company or any of its Subsidiaries), on the other hand, that involves payments, in the aggregate, of more than $20,000 in any one year;
(xviii) month period each contract with sole-source or single source suppliers of material tangible products or services that are not readily available from other suppliers; and
(xix) all other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the remaining period conduct of such Contracttheir respective businesses, if shorter. Each Contract or the absence of the type described in clauses (i) through (xi) is referred to herein as which would have a “Company Material Contract”Adverse Effect.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Company Material Contract is a legal, valid and binding and in full force and effect obligation of the Company or its Subsidiaries party thereto and, to the Knowledge knowledge of the Company, the other parties thereto, enforceable against the Company or such Subsidiaries and, to the knowledge of the Company, the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) neither the Company nor any of its SubsidiariesSubsidiaries nor, nor to the Knowledge knowledge of the Company Company, any other party to a Company Material Contract, thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or in inaction or, to the knowledge of the Company, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) the Company and its Subsidiaries have not received any claim or notice of default, termination or cancellation under any provision of such Company Material Contract. True The Company has furnished or made available to Parent correct and complete copies of the Company all Material Contracts Contracts, including any amendments, waivers or changes thereto, and any material amendments thereto have been made available to has given Parent prior to the date a written description of this Agreementall oral contracts constituting Material Contracts.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (World Heart Corp)
Material Contracts. (a) Section 4.21(a4.16(a) of the Company Disclosure Letter sets forthSchedule lists, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts contracts and agreements to which the Company or any of its Subsidiaries Company Subsidiary is a party or by which any (such contracts and agreements as are required to be set forth on Section 4.16(a) of their respective properties or assets is bound:the Company Disclosure Schedule being the “Material Contracts”):
(i) each Contract that (A) limits contract and agreement with consideration paid or restricts in any material respect payable to or by the Company and its Subsidiaries from competing in or any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its SubsidiariesSubsidiaries of more than $1,500,000, taken as a wholein the aggregate, over any 12-month period;
(ii) each Contract that is a joint venture contract and agreement with the Company’s top 10 customers and Suppliers based on the aggregate amounts paid by or partnership agreement that is material to the Company and its Subsidiaries, taken as a wholethe Company Subsidiaries in the 12-month period ending on the date hereof;
(iii) each Contract that agreement to which the Company or any Company Subsidiary is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment party (other than letters this Agreement) that is of credit and those between a type that would be required to be included as an exhibit to a registration statement on Form S-1 pursuant to Items 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated under the Securities Act if such a registration statement was filed by the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess on the date of $1,000,000this Agreement;
(iv) each Contract contract and agreement (A) with respect to an interest, rate, currency or other swap or derivative transaction any of the Affiliates of the Company (other than those between the a Company and its SubsidiariesGroup Member) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing Company Subsidiary receives any “earn-outpreferred pricing” or similar obligations benefit that could result in payments in excess of $1,000,000 is utilized by the Company or any Company Subsidiary in the aggregateOrdinary Course;
(v) all contracts and agreements evidencing Indebtedness, and any pledge agreements, security agreements or other collateral agreements in which the Company or any Company Subsidiary granted to any Person a security interest in or Lien on any of the property or assets of the Company or any Company Subsidiary, and all agreements or instruments guarantying the debts or other obligations of any Person;
(vi) all partnership, joint venture or similar agreements;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by all contracts and agreements with any Governmental Authority to which the Company with the SECor any Company Subsidiary is a party, other than any Company Permits;
(viii) all contracts and agreements that limit, or purport to limit, the ability of the Company or any Contract governing a Related Party Transaction (as defined below)Company Subsidiary to compete in any line of business or with any Person or entity or in any geographic area or during any period of time, excluding customary confidentiality agreements and agreements that contain customary confidentiality clauses;
(ix) all contracts involving use of any registration Company-Licensed IP required to be listed in Section 4.13(a) of the Company Disclosure Schedule;
(x) contracts which involve the license or grant of rights agreements with respect to securities of Company-Owned IP by the Company;
(xxi) any employment all contracts or consulting Contract (in each case with respect to agreements under which the Company has continuing obligations as agreed to purchase goods or services from a vendor, Supplier or other Person on a preferred supplier or “most favored supplier” basis; and
(xii) agreement for the development of Company-Owned IP for the benefit of the date hereofCompany.
(i) with any current (A) executive officer Each Material Contract is a legal, valid and binding obligation of the Company or the Company Subsidiaries and, to the knowledge of the Company, (B) member of the other parties thereto, and neither the Company Boardnor any Company Subsidiary is in breach or violation of, or default under, any Material Contract nor has any Material Contract been canceled by the other party; (Cii) Company Employee providing for an annual base salary to the Company’s knowledge, no other party is in excess of $250,000breach or violation of, or default under, any Material Contract; and
and (xiiii) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its the Company Subsidiaries would receive annual payments have not received any written, or to the knowledge of $7,000,000 or more (eachthe Company, a “Revenue Contract”) or make annual payments oral claim of $5,000,000 or more, in each case, during default under any twelve (12) month period or the remaining period of such Material Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except except for any Company Material Contract that has terminated such conflicts, violations, breaches, defaults or expired in accordance with its terms and except as has not had, and other occurrences which would not reasonably be expected to have, individually or result in the aggregate, a Company Material Adverse Effect, each Company . No party to a Material Contract is valid and binding and in full force and effect andhas given written notice of or, to the Knowledge knowledge of the Company, enforceable against the other party threatened (i) any potential exercise of termination rights with respect to any Material Contract or parties thereto in accordance with its terms, subject (ii) any non-renewal or modification of any Material Contract.
(c) The Company has furnished or made available to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or SPAC in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True Virtual Data Room true and complete copies of the Company all Material Contracts and any material Contracts, including amendments thereto have been made available to Parent prior to the date of this Agreementthat are material in nature.
Appears in 1 contract
Sources: Business Combination Agreement (TPG Pace Beneficial Finance Corp.)
Material Contracts. (a) Section 4.21(a) 3.14 of the Company Disclosure Letter sets forth, as of the date of this Agreement, forth a correct and complete list of each all of the following types of Contracts to which the Company or any of its Subsidiaries is a party or as of the date of this Agreement (other than any Company Benefit Plan) (collectively, the “Material Contracts”):
(a) Any Contract which is required to be filed by which any the Company as an exhibit to the Company’s SEC filings pursuant to Item 601(b)(1) of their respective properties or assets is bound:Regulation S-K under the Securities Act;
(b) (i) each Any Contract that (Aor multiple Contracts with the same counterparty or any Affiliates of such counterparty, for which payments shall be aggregated for purposes of this clause (b)) limits or restricts in any material respect under which the Company and its Subsidiaries from competing have received payments in excess of $250,000 in the aggregate during the twelve (12) calendar months ended December 31, 2017, and (ii) each Contract under which the counterparty is obligated to make payments to the Company or its Subsidiaries of more than $250,000 in the aggregate during the twelve (12) calendar months ending December 31, 2018;
(c) Any Contract (or multiple Contracts with the same counterparty or any Affiliates of such counterparty, for which payments shall be aggregated for purposes of this clause (c)) for the purchase of goods or services by the Company or its Subsidiaries or which by its terms requires the Company or any such Subsidiary to make payments in excess of $250,000 under which the Company and its Subsidiaries (i) made payments in excess of $250,000 in the aggregate during the twelve (12) calendar months ended December 31, 2017, or (ii) is obligated to make payments in excess of $250,000 in the aggregate during the twelve (12) calendar months ending December 31, 2018, or in any calendar year thereafter;
(d) Any Contract (A) limiting the freedom of the Company or any of its Subsidiaries (and including any such Contract which by its terms is expressly binding on Affiliates of the Company and its Subsidiaries), to engage in any line of business with any Person in any geographic region area or to compete with any Person, in each case that would materially limit the conduct of the Businesses, taken as a whole, as presently conducted, (B) contains containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or its Subsidiaries (and including any such Contract which by its terms is expressly binding on Affiliates of the Company and its Subsidiaries), (C) containing exclusivity obligations or restrictions (D) materially limiting the freedom or right of the Company or any of its Subsidiaries (and including any such Contract which by its terms is expressly binding onon Affiliates of the Company and its Subsidiaries) to sell or distribute any services for any other Persons (in each case, other than Contracts with clients relating to the production of individualized market reports, property reports and other bespoke products in the ordinary course that would not materially limit the conduct of the Businesses as currently conducted, taken as a whole);
(e) Any Contract providing for the acquisition or disposition of any business, material toassets (outside the ordinary course of business) or capital stock or other equity interests (by merger, purchase or sale of stock or assets or otherwise) by the Company or any of its Subsidiaries after the date hereof;
(f) Any Material IP Contract;
(g) Any Contract for the provision of IT hosting or outsourcing, SaaS, PaaS, IaaS or similar services that are material to the operation of the Businesses as currently conducted;
(h) Any Contract that, upon consummation of the Closing, would give rise to a material grant to a third party of the Intellectual Property of Parent or any Person who is an Affiliate of Parent, excluding the Company and its Subsidiaries, taken as a wholeby virtue of Parent or such Person becoming an Affiliate of the Company or any of its Subsidiaries;
(iii) Any Contract with any Person constituting a material joint venture, partnership or similar profit sharing arrangement;
(j) Any Contract between the Company and any Governmental Authority under which such Governmental Authority is obligated to make payments to the Company or its Subsidiaries of more than $100,000 in the aggregate during the twelve (12) calendar months ending December 31, 2018;
(k) Any Contract for the lease or sublease by the Company or any of its Subsidiaries (as lessee) of any real property material to the conduct of the Businesses;
(l) Any Contract under which the Company or any of its Subsidiaries has incurred any Indebtedness (other than from the Company or any of its Subsidiaries), or issued any note, bond, debenture or similar evidence of Indebtedness to any Person (other than the Company or any of its Subsidiaries), in each case other than trade credit in the ordinary course of business; and
(m) Any Contract with any employee, independent contractor, or consultant (including, for the avoidance of doubt, any Contract providing for change of control, severance or termination pay or other termination or change of control benefits), other than those that are immediately terminable at will by the Company or any of its Subsidiaries without Liability to the Company or any of its Subsidiaries, or with respect to any Contract with an independent contractor or consultant, other than those that involve a service fee amount of less than $75,000. The Company has made available to Parent true and complete copies of all Material Contracts, including any amendments thereto as in effect as of the date hereof. Each Material Contract is, subject to the effect of any applicable bankruptcy, insolvency (including all Laws related to fraudulent transfers), reorganization, moratorium or similar Laws affecting creditors’ rights generally and subject to the effect of general principles of equity, a valid and binding agreement of the Company or its applicable Subsidiary, except where failure to be valid and binding would not reasonably be expected to have a Company Material Adverse Effect. None of the Company, its applicable Subsidiaries and, to the Knowledge of the Company, any other party thereto, is in material breach or default under any such Material Contract and none of the Company, its applicable Subsidiaries and, to the Knowledge of the Company, any other party to a joint venture Material Contract has taken or partnership agreement failed to take any action that is with or without notice, lapse of time or both would constitute a material breach of any Material Contract, in each case, except as would not reasonably be expected to have a Company Material Adverse Effect. Except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreementsince January 1, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after 2016 through the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each caseAgreement, (xi) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereofnot received any written notice regarding any violation or breach or default under any Material Contract that has not since been cured, and (ii) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company received written notice from any other party under any Material Contract of an intent to a Company terminate, cancel, materially change the scope of any rights under or fail to renew such Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Reis, Inc.)
Material Contracts. (a) Section 4.21(a4.13(a) of the Company DCPS/MBS Disclosure Letter sets forth, as of Schedule contains a list (organized by subsections corresponding to the date of this Agreement, a correct and complete list of each subsections identified below) of the following types of Contracts contracts, agreements and arrangements (including all amendments thereto) to which the Company DCPS or any of its Subsidiaries MBS is currently a party or by which any (such contracts, agreements and arrangements required to be set forth in Section 4.13(a) of their respective properties or assets is boundthe DCPS/MBS Disclosure Schedule, the “DCPS/MBS Material Contracts”) , except for this Agreement and the other agreements referenced hereby related to the Transactions:
(i) each Contract that contract and agreement or group of related agreements which (A) limits is likely to involve consideration of more than $50,000 in the aggregate, during the years ending December 31, 2003 or restricts December 31, 2004, (B) is likely to involve consideration of more than $125,000 in the aggregate over the remaining term of such contract, or (C) cannot be canceled by DCPS or MBS without penalty or further payment and on less than 60 days’ notice;
(ii) all employment, consulting, severance, termination or indemnification agreements between DCPS or MBS and any material director, officer or employee of DCPS or MBS;
(iii) all (A) management contracts (excluding contracts for employment) and (B) contracts with consultants which involve consideration of more than $10,000;
(iv) all contracts, credit agreements, indentures and other agreements evidencing indebtedness for borrowed money (including capitalized leases);
(v) all agreements under which DCPS or MBS has advanced or loaned, or may be required to advance or loan, any funds;
(vi) all guarantees of any obligations in excess of $25,000;
(vii) all joint venture or other similar agreements;
(viii) all lease agreements with annual lease payments in excess of $25,000;
(ix) agreements under which DCPS or MBS has granted any Person registration rights (including demand and piggy-back registration rights) or any other agreements with respect to the Company capital stock or other ownership interests of DCPS or MBS;
(x) all contracts and its Subsidiaries from competing agreements that limit the ability of DCPS or MBS to compete in any line of business or with any Person or entity or in any geographic region area or during any period of time with respect to any business currently conducted by DCPS or MBS;
(Bxi) contains exclusivity obligations all contracts and agreements pursuant to which DCPS or restrictions binding onMBS may be required to repurchase or redeem any capital stock or other equity interests;
(xii) all affiliation agreements with hospitals or other health care providers;
(xiii) all litigation settlement agreements, consent decrees, corporate integrity agreements, and settlements with governmental entities;
(xiv) all contracts and other agreements with Affiliates; and
(xv) any other contracts or agreements that are material toto the business, the Company assets, condition (financial or otherwise) or results of operations of DCPS and its Subsidiaries, MBS taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company To the knowledge of the Sellers, each DCPS/MBS Material Contract that has terminated or expired is a legal, valid and binding agreement in full force and effect in accordance with its terms (except that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditor’s rights and except as has not hadremedies generally, and would not reasonably be expected (ii) is subject to havegeneral principals of equity (regardless of whether considered in a proceeding in equity or at law)). Neither DCPS nor MBS is in material violation or default, individually or has received notice that it is in the aggregateviolation or default, a Company Material Adverse Effect, each Company under any DCPS/MBS Material Contract is valid and binding and in full force and effect and, to the Knowledge knowledge of the CompanySellers, enforceable against the no other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in material default under any provision of such Company DCPS/MBS Material Contract. True DCPS and complete MBS have provided SurgiCare with copies of the Company all DCPS/MBS Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementContracts.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Orion Healthcorp Inc)
Material Contracts. (a) Section 4.21(a4.19(a) of the Company Disclosure Letter sets forthSchedules contains a list, as of the date of this Agreement, a correct and complete list of each of the following types Contracts of the Company and its Subsidiaries and the Qdoba Business (such Contracts as described in this Section 4.19(a) being “Material Contracts”):
(i) all Contracts, including joint venture, partnership or similar agreements or arrangements, that provide for, or are reasonably expected to result in the future, of payment or receipt by or to the Company, its Subsidiaries or the Qdoba Business, of more than $1,000,000 in the aggregate per annum;
(ii) all Contracts relating to Indebtedness for borrowed money;
(iii) all Contracts that materially limit the ability of the Company, its Subsidiaries or the Qdoba Business to compete (A) in any line of business, (B) with any Person, (C) in any geographic area, or (D) during any period of time, including any exclusivity obligation or “most-favored nation” or similar provisions, other than Franchise Agreements entered into in the Ordinary Course of Business;
(iv) any merger, asset or stock purchase or divestiture Contract relating to the Company, any of its Subsidiaries or the Qdoba Business (A) consummated within the past five (5) years or (B) that relates to the future disposition or acquisition of material assets or properties or any future merger or business combination with respect to the Company, any of its Subsidiaries or the Qdoba Business (other than this Agreement or the Transaction Documents), except for Contracts relating to the repurchase of stores from Franchisees in the Ordinary Course of Business;
(v) any Contract requiring any future capital expenditure (or series of capital expenditures) by the Company or any of its Subsidiaries in an amount in excess of $500,000 individually or in the aggregate, including Contracts with suppliers or vendors which provide goods or services to Franchisees;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements);
(vii) all collective bargaining agreements;
(viii) all Contracts with any Affiliate of the Company or any of its Subsidiaries, other than Employee Plans;
(ix) all Contracts that provide for indemnification by the Company or any of its Subsidiaries, of any Person, except for any such Contract entered into in the Ordinary Course of Business;
(x) all Company IP Agreements (other than any agreement under which the Company or any of its Subsidiaries is granted a party non-exclusive license to software or by which any receives access to software that is made available as a “software-as-a-service” or “cloud” offering, in either case, for aggregate fees of their respective properties or assets is bound:less than $50,000);
(ixi) each Contract all Contracts that constitute a guaranty of any obligation of any Person (Aother than the Company or its Subsidiaries);
(xii) limits or restricts in all Contracts that provide for the settlement of any material respect Actions, other than general liability claims that are otherwise covered by insurance or for which the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region have no ongoing liability or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000obligation; and
(xixiii) any other Contract or series of related Contracts under which it would reasonably be expected that is otherwise material to the Company and Company, its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Qdoba Business.
(b) Except for any Company A copy of each Material Contract that has terminated or expired in accordance with its terms and except been made available to the Buyer prior to the date of this Agreement.
(c) Except as has not had, and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect on the Seller, the Company or the Company’s Subsidiary party thereto, as the case may be, and, to the Knowledge of the Company, enforceable against the other party counterparties thereto, and is in full force and effect. Neither the Seller, the Company nor any of its Subsidiaries is in breach of, or parties thereto in accordance with its termsdefault under, subject any Material Contract to the Enforceability Exceptions. Except which it is a party, except for breaches, violations such breaches or defaults which have not had, and that would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(d) No party to any Material Contract has provided written notice to the Seller, neither the Company nor or any of its Subsidiaries, nor Subsidiaries of its intent to the Knowledge of the Company any other party to a Company cancel or terminate such Material Contract, is in violation and none of the Seller, the Company or in default any of its Subsidiaries has waived or failed to enforce any material right or benefit under any provision of Material Contract in a manner that would be reasonably likely to affect such Company Material Contract. True and complete copies of entity’s rights under such Contract following the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementClosing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Jack in the Box Inc /New/)
Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter Schedule 4.14 sets forth, as of the date of this Agreement, a correct and complete list of each forth all of the following types of Contracts to which the Company or any of its Subsidiaries Subsidiary is a party or by which it is bound (collectively, the “Material Contracts”): (1) Contracts with any Seller or any current officer or director of the Company or of its Subsidiary; (2) Contracts pursuant to which any party is required to purchase or sell a stated portion of its requirements or output from or to another party; (3) Contracts for the sale of the assets of the Company or its Subsidiary other than in the Ordinary Course of Business or for the grant to any person of any preferential rights to purchase any of their respective properties or assets is bound:
its material assets; (i4) each Contract that (A) limits or restricts in any material respect Contracts containing covenants of the Company and or its Subsidiaries from competing Subsidiary not to compete in any line of business or with any other Person in any geographic region geographical area or covenants of any other Person not to compete with the Company or its Subsidiary in any line of business or in any geographical area; (B5) contains exclusivity obligations or restrictions binding onContracts relating to the borrowing of money, and material toincluding indebtedness under capital leases; (6) any other Contracts, other than Real Property Leases, that: (i) involve, individually, the expenditure by the Company and its Subsidiariesor the Subsidiary of more than $50,000 annually, taken as a whole;
(ii) each Contract that is a joint venture are not cancelable upon 30 or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
fewer days notice without any liability or (iii) each Contract require performance by any party more than one year from the date hereof; (7) Contracts that is a loan, guarantee provide for the receipt of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between payment by the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess or the Subsidiary of $1,000,000;
100,000 or more annually; (iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between 8) Contracts requiring the Company and its Subsidiaries) with a fair value in excess or the Subsidiary to pay, perform, discharge or otherwise guarantee any Debt or obligation of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 any Person; or (B9) Contracts containing any other Person has provisions that are contingent upon the right to acquire occurrence of or prohibit any assets change in ownership of the capital stock of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000Subsidiary. Except as set forth on Schedule 4.14, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct all of the Company’s Material Contracts and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant agreements to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
Subsidiary is a party: (viii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under are the Securities Act)legal, whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member valid and binding obligation of the Company Boardand/or its Subsidiary, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that enforceable against the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or and/or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired Subsidiary in accordance with its terms their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and except similar laws affecting creditors’ rights and remedies generally and subject, as has not hadto enforceability, to rules of law governing specific performance, to injunctive relief, and would not reasonably be expected to have, individually general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (ii) to the aggregateCompany’s knowledge, a Company Material Adverse Effect, each Company Material Contract is valid and binding and are in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto effect. Unless otherwise stated in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectSchedule 4.14, neither the Company nor the Subsidiary is in default in any of its Subsidiaries, nor material respect under any Material Contracts and to the Knowledge of the Company any Company’s knowledge, no other party to a Company Material Contract, is in violation of or in default under the terms of any provision of such Company Material Contract. True True, correct and complete copies of the Company all Material Contracts and any material amendments thereto have been made available to Parent prior provided to the date of this AgreementPurchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gibraltar Industries, Inc.)
Material Contracts. (a) Section 4.21(aSchedule 5.10(a) of the Company Disclosure Letter sets forthcontains a complete and correct list, as of the date hereof (or, in the case of this Agreementpurchase orders, a correct and complete list as of each January 31, 1998), of all of the following types of Contracts contracts, agreements, licenses and leases or commitments therefor, to which the Company or any of its Subsidiaries a Seller is a party party, has any rights, or by which any of their respective properties or assets is bound:Assets may be bound (collectively, the "Material Contracts"):
(i) each Contract that mortgages, indentures, security agreements and other agreements and instruments relating to the borrowing of money or any extension of credit (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material tocollectively, the Company and its Subsidiaries, taken as a whole"Loan Agreements") or which impose any Lien on any of the Assets;
(ii) each Contract that letters of credit as to which a Seller is a joint venture or partnership agreement that is material to the Company beneficiary and its Subsidiaries, taken as which have a wholeface amount in excess of $100,000;
(iii) each Contract that is a loansales agency, guarantee manufacturer's or sales representative, sales broker, distribution or marketing agreements;
(iv) maintenance and servicing agreements involving aggregate payments over the remaining term thereof in excess of indebtedness $50,000;
(v) Leases;
(vi) bailment agreements or credit agreement, note, bond, mortgage, indenture agreements for the lease of Equipment or other binding commitment personal property;
(vii) agreements, orders or commitments for the purchase of materials, advertising, supplies (including, without limitation, product labels), transportation services or other services, or for the manufacturing of products, which, in any case, individually (or with respect to a series of related agreements, orders or commitments, in the aggregate) have an unexpired term of more than letters three months or which individually (or with respect to a series of credit and those between related agreements, orders or commitments, in the Company and its wholly owned Subsidiariesaggregate) relating to indebtedness for borrowed money in an amount involve payments in excess of $1,000,000;
(ivviii) Intellectual Property Licenses or agreements relating to Intellectual Property Assets (but in each Contract case only to the extent relating to Products included in any Seller's 1996, 1997 or 1998 catalogues) or agreements under which any Seller has the option to license any Intellectual Property;
(ix) agreements relating to any Person's disclosure of product concepts to any Seller;
(x) agreements or commitments for the construction or acquisition of fixed assets or other capital expenditures that individually (or, with respect to an interesta series of related agreements, rate, currency or other swap or derivative transaction (other than those between in the Company and its Subsidiariesaggregate) with a fair value involve payments in excess of $1,000,000100,000;
(vxi) each Contract brokerage or finder's agreements or powers of attorney (other than as may be granted in connection with trademark or patent prosecutions to attorneys who will be identified in a list that is an acquisition agreement or a divestiture agreement pursuant will be delivered to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) Buyers promptly after the date of this Agreement );
(xii) agreements or commitments involving the purchase, sale, distribution, lease or other disposition of any asset other than in the ordinary course of business, including, but not limited to, any such contracts or commitments that contain executory indemnification obligations;
(xiii) agreements relating to be the rights of publicity or privacy of any Person (including, but not limited to, model, actor or voice talent releases);
(xiv) agreements with employment agencies;
(xv) agreements under which any Seller is required to maintain the confidentiality of any information or under which any Person is required to maintain the confidentiality of any information of any Seller;
(xvi) any barter agreements or series of agreements providing for a value to any party in excess of $1,000,000 25,000;
(xvii) agreements or commitments limiting the freedom of any Seller to compete in any line of business or in any geographical area or with any person or entity; and
(xviii) other existing agreements, contracts and commitments or series of related agreements, contracts and binding commitments which, in any case, (A) have an unexpired term of more than six months, (B) any other Person has the right to acquire any assets of the Company involve payments or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price receipts of more than $1,000,0001,000,000 over the life of such agree- ments, excluding, in each case, contracts or commitments or (xC) acquisitions or dispositions of supplies, inventory or products in connection with are otherwise material to the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Business.
(b) Except for Sellers have delivered (or, subject to Section 8.2, will deliver promptly following the date hereof) to Buyers complete and correct copies of all Material Contracts (other than purchase orders). No Seller is a party to or bound by any Company oral contract, agreement, license, lease or commitment relating to the Business or the Assets.
(c) Sellers have performed in all material respects the obligations required to be performed by them to date under the Assigned Material Contracts and the Excluded Contracts and are not in or alleged to be in default or, to Sellers' Knowledge, is any other Person in default, under any such Assigned Material Contract that has terminated or expired in accordance with its terms and except as has not hadExcluded Contract. To Sellers' Knowledge, and there exists no event, condition or occurrence which, after notice or lapse of time, or both, would not reasonably be expected constitute such a default by a Seller or by any other party to have, individually or in the aggregate, a Company Material Adverse Effect, each Company an Assigned Material Contract is valid or Excluded Contract. All such Assigned Material Contracts and binding and Excluded Contracts are valid, in full force and effect and enforceable against the Sellers, and, to the Knowledge of the CompanySellers' Knowledge, enforceable against the other party or parties thereto in accordance with its their respective terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Material Contracts. (a) Except for this Agreement and for the Contracts disclosed in the Filed Company SEC Documents, Section 4.21(a4.13(a) of the Company Disclosure Letter sets forthforth a true and complete list, as of the date of this Agreement, a correct and the Company has made available to Parent true and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundcopies, of:
(i) each Contract that (A) limits or restricts in any material respect would be required to be filed by the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole“material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Contract that to which the Company or any Company Subsidiary is a joint venture party that (A) restricts the ability of the Company or partnership agreement any Company Subsidiary to compete in any business or with any Person in any geographical area in any material respect, (B) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” or similar basis with any third party, (C) provides for an exclusive license, supply, distribution or other right in connection with any product or technology of the Company or (D) provides rights of first or last offer or refusal to any third party, except in the case of each of clauses (B), (C) and (D) for such restrictions, requirements and provisions that is are not material individually or in the aggregate, to the Company and its the Company Subsidiaries, taken as a whole;
(iii) each Contract that under which the Company or any Company Subsidiary (A) (x) licenses or sublicenses (or grants or is granted a loan, guarantee of indebtedness similar right to use) Intellectual Property from or credit agreement, note, bond, mortgage, indenture or other binding commitment to any third party (other than letters (1) licenses or sublicenses of credit generally commercially available off-the-shelf software programs with annual license fees of less than $500,000, (2) non-exclusive licenses or sublicenses to customers in the ordinary course of business consistent with past practice, or (3) non-exclusive licenses or sublicenses ancillary to commercial agreements entered into in the ordinary course of business consistent with past practice) or (y) since September 30, 2021, assigned or acquired Intellectual Property to or from any third party, in the case of each of clauses (x) and those between (y), except for such assignments, licenses and sublicenses that are not material to the Company and its wholly the Company Subsidiaries, taken as a whole, or (B) is subject to any material restriction affecting Intellectual Property owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000by the Company or any Company Subsidiary;
(iv) each Contract with respect relating to an interest, rate, currency or other swap or derivative transaction (other than those between Indebtedness of the Company and its Subsidiariesor any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) with a fair value in excess of $1,000,000250,000, other than Contracts solely between or among the Company or any Company Subsidiary;
(v) each Contract under which the Company or any Company Subsidiary is the landlord, sublandlord, tenant, subtenant or occupant with respect to any material real property leased, subleased, licensed or otherwise occupied;
(vi) other than with respect to an entity that is an acquisition agreement or a divestiture agreement pursuant to which (A) wholly owned by the Company reasonably expects or any of the Company Subsidiaries, each partnership, joint venture or operating or limited liability company agreement, in which the Company or any Company Subsidiaries holds an equity interest, or any other agreement governing a material joint venture, profit-sharing, partnership or other similar arrangement;
(vii) each Contract that it is required a settlement, conciliation or similar Contract, including an such agreement with any Governmental Entity, that would require the Company or any of the Company Subsidiaries to pay total consideration (including assumption of debt) more than $500,000 after the date of this Agreement or that contains material continuing restrictions on the business or operations of or other non-monetary obligations of the Company or the Company Subsidiaries;
(viii) each Contract that obligates the Company or any Company Subsidiary to be make any future capital investment or capital expenditure outside the ordinary course of business and in excess of $1,000,000 500,000 individually or $750,000 in the aggregate;
(Bix) any each Contract that prohibits the payment of dividends or distributions in respect of, or the repurchase or redemption of, the capital stock or other Person has the right to acquire any assets equity securities of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vix) each Contract pursuant to that (A) provides for the acquisition or disposition by the Company or any Company Subsidiaries of any business or material assets (whether by merger, sale of stock, sale of assets or otherwise) under which the Company or any of its Subsidiaries has any material continuing “earn-out” obligations (monetary or similar obligations that otherwise) or could result in payments reasonably be expected to have liabilities in excess of $1,000,000 in 500,000 after the aggregate;
date hereof or (viiB) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect pursuant to which the Company or any Company Subsidiaries acquired or will acquire any material ownership interest in any other Person or other business enterprise other than any Company Subsidiary, in each case, under which the Company or any Company Subsidiaries has continuing obligations remaining to be performed as of the date hereof;
(xi) each Contract that is with any current (A) executive officer each of the ten (10) largest customers of the Company and the Company Subsidiaries, taken as a whole (the “Material Customers”), (B) each of the ten (10) largest commercial vendors of the Company and the Company Subsidiaries, taken as a whole (the “Material Vendors”), and (C) each of the ten (10) largest commercial Payor Program of the Company, the Company Subsidiaries and the Managed Professional Corporations, taken as a whole, in each case by dollar amount for the nine months ended September 30, 2021;
(xii) each Contract that provides for (A) indemnification of any officer, director or employee by the Company, other than Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Parent, (B) member accelerated vesting in connection with a change of control, including the Company BoardTransactions (including as a result of any termination of employment following a change of control, including the Transactions) or (C) any other Change of Control Payments;
(xiii) any Contract pursuant to which the Company Employee or any Company Subsidiary provides management services or administrative support services or other similar services to a professional corporation or professional limited liability company that provides healthcare services, and any other Contract with the Managed Professional Corporations;
(xiv) each Contract for the employment or engagement of any director, officer, employee or independent contractor providing for an annual base salary compensation in excess of $250,000;
(xv) any stockholders, investors rights, registration rights or similar agreements or arrangements; and
(xixvi) any each collective bargaining agreement or other Contract with any labor union, labor organization, or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more works council (each, each a “Revenue ContractLabor Agreement”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter). Each such Contract of the type Company or any Company Subsidiary described in clauses (i) through (xixvi) above is referred to herein as a “Company Material Specified Contract”” (regardless of whether in effect as of the date hereof or entered into after the date hereof or disclosed in the Filed Company SEC Documents).
(b) Except Each of the Company Specified Contracts is valid, binding and enforceable on the Company or the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect (i) except for such failures to be valid, binding or enforceable or to be in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and (ii) except insofar as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws of general applicability relating to or affecting creditors’ rights, or by principles governing the availability of equitable remedies, whether considered in a Proceeding at law or in equity. As of the date of this Agreement, there is no default or breach under any Company Material Specified Contract by the Company or the Company Subsidiaries or, to the Knowledge of the Company, any other party thereto, and no event has occurred that has terminated (with or expired without notice or lapse of time, or both) would constitute a default or breach thereunder by the Company or any Company Subsidiary or, to the Knowledge of the Company, any other party thereto, in accordance with its terms and each case except as has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (SOC Telemed, Inc.)
Material Contracts. (a) Except (x) for this Agreement or (y) as set forth in Section 4.21(a) 3.16 of the Company Disclosure Letter sets forthSchedules, or (z) for Non-Scheduled Contracts, as of the date Agreement Date, none of this Agreementthe Company or any of the Company Subsidiaries is a party to or bound by (each a “Company Material Contract”):
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC, other than those agreements and arrangements described in Item 601(b)(10)(iii);
(ii) any Contract with a related person (as defined in Item 404 of Regulation S-K of the Securities Act) that would be required to be disclosed in the Company SEC Reports but has not been disclosed;
(iii) any Contract for the acquisition or disposition by the Company or any Subsidiary of the Company of any business, a correct material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of $10,000,000 and complete list of each of the following types of Contracts pursuant to which the Company or any of its Subsidiaries is a party Company Subsidiary has continuing obligations (including any contingent obligations such as an earnout or holdback) that would reasonably be expected to result in the receipt or making by which the Company or any of their respective properties or assets is bound:the Company Subsidiaries of future payments in excess of $1,000,000;
(iiv) each any Contract relating to the borrowing or lending of Indebtedness in a principal amount in excess of $2,000,000, except for agreements relating to trade receivables or payables, loans to or from the Company Subsidiaries in the ordinary course of business and extensions of credit to customers or from vendors in the ordinary course of business;
(v) any Contract that is with any of the top ten (10) vendors of the Company and the Company Subsidiaries (the “Top Vendors”), by dollar amount paid by the Company and the Company Subsidiaries for the prior fiscal year;
(vi) any Contract that is with any of the top ten (10) sources of revenue (whether customers or distributors) of the Company and the Company Subsidiaries (the “Top Customers”), by dollar amount received by the Company and the Company Subsidiaries for the prior fiscal year;
(vii) any Contract that (A1) limits contains any restrictions or restricts covenants that purport to limit or otherwise restrict in any material respect the ability of the Company and its the Company Subsidiaries from competing (or after the Closing Date, the Surviving Corporation or Parent), taken as a whole, to compete in any line of business with any Person in any geographic region area anywhere in the world, (2) prohibits the Company or any Company Subsidiary from entering into any partner or similar agreements with third parties, (3) binds the Company or any Company Subsidiary through any customer or similar non-solicitation covenant or any non-competition covenant; (4) grants exclusivity or “most favored nation” protections or rights of first refusal, rights to participate, rights of first offer or rights first negotiation or similar restrictions to the counterparty to such Contract (including any exclusive supply agreements with any of the Company’s or its Subsidiaries’ suppliers); or (B5) contains exclusivity obligations that limit the freedom or restrictions binding onright of the Company or any Company Subsidiary to develop, and sell or distribute any products or services for any other Person; in each case, other than such Contracts that are not material to, to the Company and its the Company Subsidiaries, taken as a whole;
(iiviii) each any Contract that is a provides for the formation, creation, operation, management or control of any joint venture venture;
(ix) any settlement or partnership agreement conciliation Contract that is would require the Company or any of the Company Subsidiaries to pay more than $1,000,000 after the Agreement Date or that contains restrictions on the business and operations of the Company and the Company Subsidiaries that are material to the business of the Company and its the Company Subsidiaries, taken as a whole;
(iiix) each any Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between obligates the Company or any Company Subsidiary to make any future capital investment or capital expenditure outside the ordinary course of business and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(ivxi) each any Contract with respect (A) relating to an interest, rate, currency the licensing of any material Intellectual Property Rights (whether granted by or other swap to the Company or derivative transaction a Company Subsidiary) (other than those between (1) non-exclusive licenses granted to the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which Company Subsidiary in the ordinary course of business and (A2) non-exclusive licenses of Intellectual Property Rights granted by the Company reasonably expects that it is required to pay total consideration (including assumption or a Company Subsidiary in the ordinary course of debt) after the date of this Agreement to be in excess of $1,000,000 or business); (B) any for the acquisition or development of material Intellectual Property Rights (other Person has the right to acquire any assets of the Company than agreements with employees or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful contractors in the conduct ordinary course of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Actbusiness), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, ; or (C) limiting in any material manner the Company’s or a Company Employee providing for an annual base salary in excess of $250,000; andSubsidiary’s ability to use or enforce any material Intellectual Property Rights consistent with past practices;
(xixii) any other CBA; or
(xiii) any Contract or series of related Contracts under which it would reasonably be expected that for the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Convertible Note Capped Call Options.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, each of the Company Material Contract Contracts is valid and 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 terms against the Company or the Company Subsidiary (as the case may be) and, to the Knowledge of the Company, enforceable against the any other party thereto, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or parties thereto other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in accordance with its termsa proceeding in Law or equity). Neither the Company nor any Company Subsidiary is in breach of or default under any Company Material Contract, subject nor, to the Enforceability Exceptions. Except for breachesCompany’s Knowledge, violations is any other party to such Company Material Contract, excluding, however, any breach or defaults default which have not had, and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. The Company has made available to Parent a copy of each Company Material Contract as in effect as of the date hereof that is true and complete, neither the subject to redaction of privileged or competitively sensitive information. The Company nor has not received any of its Subsidiarieswritten or, nor to the Knowledge of the Company Company, oral notice from any other party of the Top Customers or Top Vendors to a the effect that any such Top Customer or Top Vendor, as applicable, will modify in any material respect, terminate or not renew, any Company Material Contract, is in violation of or in default under stop, materially decrease the rate of, or materially change the terms (whether related to payment, price or otherwise) with respect to, purchasing or supplying, as applicable, products or services from the Company or any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to Subsidiaries (whether as a result of the date of this AgreementTransactions or otherwise).
Appears in 1 contract
Material Contracts. (a) Section 4.21(aSchedule 4.6(a) contains a listing (organized by the applicable subsection below) of the Company Disclosure Letter sets forth, as all Contracts of the date of this Agreement, a correct and complete list of each of the following types of Contracts type described in clauses (i) through (xii) below to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any their respective properties or assets is bound:bound as of the date hereof (other than agreements related to Leases, Employee Benefit Plans and licenses related to intellectual property, which are provided for in Sections 4.14, 4.15(a) and 4.21(b), respectively) (the “Material Contracts”). True and correct copies of all Material Contracts have been delivered or made available to Buyer.
(i) each Contract that (A) limits Each Contract involving annual payments or restricts in any material respect consideration furnished by or to the Company and or any of its Subsidiaries from competing in any line of business with any Person in any geographic region or more than Seventy Five Thousand Dollars ($75,000), and (B) contains exclusivity obligations each outstanding bid, proposal or restrictions binding on, and material to, quotation that the Company and reasonably anticipates will involve annual payments or consideration furnished by or to the Company or any of its Subsidiaries, taken as a wholeSubsidiaries of more than One Hundred Thousand Dollars ($100,000);
(ii) each Each Contract that is a joint venture or partnership agreement that is material related to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets Indebtedness of the Company or any of its Subsidiaries;
(iii) Each Contract under which the Company or any of its Subsidiaries after the date has directly or indirectly made any advance, loan, mortgage, note, bond, extension of this Agreement with a fair market value credit or purchase price of more than $1,000,000capital contribution to, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsoleteinvestment in, worn outor guaranteed or agreed to indemnify the obligations of, surplus or no longer used or useful any Person (other than extensions of credit to customers in the conduct ordinary course of business business);
(iv) Each Contract pledging or otherwise placing a material Lien (other than a Permitted Lien) on any assets or properties of the Company or any of its Subsidiaries;
(viv) each Each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” sold, exchanged or similar obligations that could result in payments in excess otherwise disposed of $1,000,000 any of its assets or rights, other than in the aggregateordinary course of business;
(vi) Each Contract containing any provision or covenant prohibiting or materially limiting the ability of the Company or any of its Subsidiaries to engage in any business activity or compete with any Person in any geographical area;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act)Each joint venture, whether partnership, stockholders’, limited liability company or not filed by the Company similar Contract with the SECany Person;
(viii) Each Contract granting any Contract governing a Related Party Transaction (as defined below)rights to license, market or sell the Company’s or any of its Subsidiaries’ services to any other Person that limit the Company’s or any of its Subsidiaries’ exclusive right to market or sell its services;
(ix) Each Contract under which the Company or any registration rights agreements of its Subsidiaries directly or indirectly indemnifies any Person with respect to securities infringements of the Companyproprietary rights;
(x) any Each franchise, license, distributor or other similar type of Contract;
(xi) Each Contract constituting an employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) agreement with any current (A) executive officer or director of the Company, (B) member any of its Subsidiaries or any Acquired Employee, in each case that requires payment by the Company Board, or (C) Company Employee providing for an annual base salary any of its Subsidiaries in excess of One Hundred Thousand Dollars ($250,000100,000) annually; and
(xixii) any Each other Contract or series that is material to the operations of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (eachSubsidiaries, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein taken as a “Company Material Contract”whole.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectset forth on Schedule 4.6(b), each Company Material Contract is valid and binding and in full force and effect and constitutes a legal, valid and binding agreement, enforceable against the Company or one of its Subsidiaries, as applicable, and, to the Knowledge of the Company, enforceable against the each other party or parties thereto thereto, in accordance with its terms. Neither the Company or its applicable Subsidiary, subject as the case may be, nor, to the Enforceability Exceptions. Except for breachesKnowledge of the Company, violations any other party to each such Material Contract is in violation or defaults which have not hadbreach of, and or in default under, nor has there occurred any event or condition that with or without the passage of time or the giving of notice (or both) would constitute a violation or breach of, or default under, or permit the termination of, any such Material Contract or would cause acceleration of any obligation of any party thereto or create any Lien on the property of the Company or any of its Subsidiaries, except as would not reasonably be expected to have, individually or result in the aggregate, a Company Material Adverse Effect, neither . Neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company Subsidiaries has received notice from any other party to a Material Contract that such party plans on terminating its Contract with the Company Material Contract, is in violation or any of or in default under any provision of such Company Material Contractits Subsidiaries. True and complete copies To the Knowledge of the Company Company, except with respect to Material Contracts and that expire in accordance with their terms, no party to any material amendments thereto have been made available such Contract intends to Parent prior to (i) terminate its relationship with the date Company or any of this Agreementits Subsidiaries or (ii) put its Contract with the Company or any of its Subsidiaries out for bid, within six (6) months after the Closing Date.
Appears in 1 contract
Material Contracts. (a) Section 4.21(a3.13(a) of the Company SurgiCare Disclosure Letter sets forth, as of Schedule contains a list (organized by subsections corresponding to the date of this Agreement, a correct and complete list of each subsections identified below) of the following types of Contracts contracts, agreements and arrangements (including all amendments thereto) to which SurgiCare or a SurgiCare Subsidiary is currently a party, other than those contracts, agreements and arrangements listed as exhibits in SurgiCare's Form 10-K for the Company year ended December 31, 2002 (such contracts, agreements and arrangements required to be set forth in Section 3.13(a) of the SurgiCare Disclosure Schedule or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundlisted as exhibits in SurgiCare's Form 10-K for the year ended December 31, 2002, the "SurgiCare Material Contracts"), except for this Agreement and the other agreements referenced hereby related to the Transactions:
(i1) each Contract that contract and agreement or group of related agreements which (A) limits is likely to involve consideration of more than $100,000 in the aggregate, during the years ending December 31, 2003 or restricts December 31, 2004, (B) is likely to involve consideration of more than $250,000 in the aggregate over the remaining term of such contract, or (C) cannot be canceled by SurgiCare or any material SurgiCare Subsidiary without penalty or further payment and on less than 60 days' notice;
(2) all employment, consulting, severance, termination or indemnification agreements between SurgiCare or any SurgiCare Subsidiary and any director, officer or employee of SurgiCare or any SurgiCare Subsidiary;
(3) all (A) management contracts (excluding contracts for employment) and (B) contracts with consultants which involve consideration of more than $25,000 or which involve the services of physicians;
(4) all provider participation agreements, reimbursement agreements, and third party payor agreements, whether with a governmental or private health care program, health insurer, managed care organization, self-funded group health plan, or other payor for health care services;
(5) all contracts, credit agreements, indentures and other agreements evidencing indebtedness for borrowed money (including capitalized leases);
(6) all agreements under which SurgiCare or any SurgiCare Subsidiary has advanced or loaned, or may be required to advance or loan, any funds;
(7) all guarantees of any obligations in excess of $50,000;
(8) all joint venture or other similar agreements;
(9) all lease agreements with annual lease payments in excess of $50,000;
(10) agreements under which SurgiCare has granted any Person registration rights (including demand and piggy-back registration rights) or any other agreements with respect to the Company capital stock of SurgiCare or any SurgiCare Subsidiary;
(11) all contracts and its Subsidiaries from competing agreements that limit the ability of SurgiCare or any SurgiCare Subsidiary to compete in any line of business or with any Person or entity or in any geographic region area or during any period of time with respect to any business currently conducted by SurgiCare or any SurgiCare Subsidiary;
(B12) contains exclusivity obligations all contracts and agreements pursuant to which SurgiCare or restrictions binding onany SurgiCare Subsidiary may be required to repurchase or redeem any capital stock or other equity interests;
(13) all contracts and agreements relating to the management or development of ambulatory surgery centers by SurgiCare or any SurgiCare Subsidiary;
(14) all affiliation agreements with hospitals or other health care providers;
(15) all litigation settlement agreements, consent decrees, corporate integrity agreements, and settlements with governmental entities;
(16) all contracts and other agreements with Affiliates; and
(17) any other contracts or agreements that are material toto the business, assets, condition (financial or otherwise) or results of operations of SurgiCare and the Company and its Subsidiaries, SurgiCare Subsidiaries taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company To the knowledge of SurgiCare, each SurgiCare Material Contract that has terminated or expired is a legal, valid and binding agreement in full force and effect in accordance with its terms (except that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditor's rights and except as has not hadremedies generally, and would not reasonably be expected (ii) is subject to havegeneral principals of equity (regardless of whether considered in a proceeding in equity or at law)). Neither SurgiCare nor any SurgiCare Subsidiary is in material violation or default, individually or has received notice that it is in the aggregateviolation or default, a Company Material Adverse Effect, each Company under any SurgiCare Material Contract is valid and binding and in full force and effect and, to the Knowledge of the CompanySurgiCare's knowledge, enforceable against the no other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in material default under any provision of such Company SurgiCare Material Contract. True and complete SurgiCare has provided IPS with copies of the Company all SurgiCare Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementContracts.
Appears in 1 contract
Sources: Merger Agreement (Surgicare Inc/De)
Material Contracts. (a) Section 4.21(a3.16(a) of the Disclosure Schedule lists the following contracts (collectively, with the Leases listed on Section 3.13(b) of the Disclosure Schedule, the "Material Contracts") in effect as of the date of this Agreement to which the Company or any subsidiary (subject, in each case, to the approvals described in Section 3.11 of the Disclosure Letter sets forthSchedule) is a party:
(i) any commitment, contract, agreement, note, loan, evidence of indebtedness, purchase order or letter of credit (other than the Leases listed on Section 3.13(b) of the Disclosure Schedule) that the Seller reasonably anticipates will, in accordance with its terms, involve aggregate payments by the Company or any subsidiary of more than $250,000 within the 12 month period following the date of this Agreement;
(ii) any lease of personal property involving any annual expense in excess of $100,000;
(iii) any contracts or agreements containing covenants limiting the freedom of the Company or any subsidiary to engage in any line of business or compete with any Person;
(iv) any agreement, contract or commitment relating to the employment of any Person by the Company or any subsidiary at an annual compensation in excess of $100,000, or any bonus, deferred compensation, pension, profit sharing, stock option, employee stock purchase, retirement or other employee benefit plan;
(v) any agreement, indenture or other instrument which contains restrictions with respect to payment of dividends or any other distribution in respect of its interests or capital stock as the case may be;
(vi) any loan (other than accounts receivable from trade debtors in the ordinary course of business) or advance to (other than travel allowances to the employees of the Company or any of its subsidiaries), or investment in, any Person or any agreement, contract or commitment relating to the making of any such loan, advance or investment;
(vii) any agreement evidencing borrowings by the Company or any subsidiary, including loan and credit agreements, promissory notes and other instruments of indebtedness in each case relating to an amount in excess of $100,000;
(viii) any guarantee or other contingent liability in respect of any indebtedness or obligation of any Person in each case relating to an amount in excess of $100,000 (other than the endorsement of negotiable instruments for collection in the ordinary course of business);
(ix) any management service, consulting, "golden parachute" or other severance agreement, or any other similar type contract providing for annual payments by the Company in excess of $100,000; and
(b) Except as set forth on Section 3.16(b) of the Disclosure Schedule, no Material Contract has expired other than in accordance with its terms or been otherwise terminated by the parties thereto. Subject to the approvals described in Section 3.11 of the Disclosure Schedule, neither the Company nor any subsidiary is (and, to the knowledge of the Seller, no other party is), as of the date of this Agreement (or, as of the Closing Date, except as would not have a Material Adverse Effect), in material breach or material violation of, or material default under, any of the Material Contracts, nor does there exist any event, occurrence, condition or act (including the transactions contemplated hereunder) which with the giving of notice or lapse of time would become a material default or an event of default thereunder. Subject to the approvals described in Section 3.11 of the Disclosure Schedule, each Material Contract, and each agreement or arrangement between the Company or any subsidiary, on the one hand, and the Seller, on the other hand, is, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit valid agreement, note, bond, mortgage, indenture arrangement or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000such subsidiary, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of enforceable against the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired subsidiary in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge knowledge of the CompanySeller, is a valid agreement, arrangement or commitment of each other party thereto, enforceable against the other such party or parties thereto in accordance with its terms, except in each case where enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and except where enforceability is subject to the Enforceability Exceptions. Except for breaches, violations application of equitable principles or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreementremedies.
Appears in 1 contract
Material Contracts. (a) Section 4.21(a5.16(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, Schedule is a correct true and complete list of each all of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any it or they are bound (such Contracts as are required to be listed on Section 5.16(a) of their respective properties or assets is bound:
the Company Disclosure Schedule, the "Material Contracts"): (i) each Contract that Contracts evidencing or relating to Indebtedness; (ii) Contracts evidencing or relating to any obligations of the Company or its Subsidiaries with respect to the issuance, sale, repurchase or redemption of any Equity Securities of the Company or such Subsidiary; (iii) Contracts with any customers of, or suppliers to, the Company or its Subsidiaries (A) limits that involved payments to or restricts in any material respect from the Company and or its Subsidiaries from competing in any line excess of business with any Person one hundred thousand dollars ($100,000) in any geographic region the most recent twelve (12) month period or (B) contains exclusivity obligations or restrictions binding on, and material to, that the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture reasonably anticipates may involve payments to or partnership agreement that is material to from the Company and or its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount Subsidiaries in excess of one hundred thousand dollars ($1,000,000;
100,000) in any twelve (12) month period; (iv) each Contract all Contracts with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company Top Customers and its Subsidiaries) all Contracts with a fair value in excess of $1,000,000;
Top Suppliers; (v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which all Leases; (Avi) the Company reasonably expects Intellectual Property Contracts, other than licenses of Commercial Software; (vii) all Consultant Agreements, Employee Agreements and any proposed amendments thereto; (viii) Contracts that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of obligate the Company or any of its Subsidiaries after with respect to contingent payments of any type; (ix) Contracts (other than arm's-length Employee Agreements and Consultant Agreements) by and between the date Company or any of this Agreement its Subsidiaries and (A) any Affiliate of the Company, (B) other Persons with a fair market value whom the Company is not dealing at arm's-length, (C) Employees or purchase price of more than $1,000,000, excluding, in each case, (D) entities controlled by any Employees; (x) acquisitions or dispositions leases of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of personal property under which the Company or any of its Subsidiaries;
Subsidiaries is the lessee and is obligated to make payments in excess of twenty-five thousand dollars (vi$25,000) each Contract per annum; (xi) Contracts that are settlement Contracts of any nature, including any settlement with any Governmental Authority, pursuant to which the Company or any of its Subsidiaries has continuing “earnany obligations that will continue after the Closing Date; 32 (xii) Contracts limiting the freedom of the Company or its Subsidiaries to engage in any line of business, acquire any entity or compete with any Person or in any market or geographical area; (xiii) Contracts that grant, or agree to grant, any Person a right to "most favored nation" pricing terms or which imposes on the Company or its Subsidiaries any take-out” or- pay or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
minimum purchase requirements; (viixiv) each “material contract” Contracts with any distributor or sale representative; (as such term is defined in Item 601(b)(10xv) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect Contracts pursuant to which the Company or its Subsidiaries has continuing obligations as of the date hereofagreed to share profits or revenues; and (xvi) with any current (A) executive officer of the Company, (B) member of Contracts not otherwise listed above involving payments to or from the Company Board, or (C) Company Employee providing for an annual base salary any of its Subsidiaries in excess of one hundred thousand dollars ($250,000; and
100,000) per annum or that (xiregardless of amount) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to haveotherwise are, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, material to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.21(a6.11(a) of the Company ILG Disclosure Letter Schedule sets forthforth a list of all Contracts described in clauses (i) through (xi) of this Section 6.11(a) to which, as of the date of this Agreementhereof, a correct and complete list of each of the following types of Contracts to which the Company ILG or any of its Subsidiaries ILG Subsidiary is a party party, other than (x) the ILG Benefit Plans, (y) any Contract solely between or by which among one or more of ILG and the ILG Subsidiaries and (z) any purchase orders entered into in connection with ILG’s and the ILG Subsidiaries’ ordinary course of their respective properties or assets is bound:business purchasing activities (such Contracts, collectively, the “ILG Material Contracts”):
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Exchange Act);
(ii) each Contract (other than Contracts of the type (without giving effect to dollar thresholds) described in other clauses of this Section 6.11(a)) that ILG reasonably anticipates will involve annual payments or consideration furnished by or to ILG or any of the ILG Subsidiaries of more than $1,500,000;
(iii) each note, whether debenture, other evidence of indebtedness, guarantee, loan, credit or not filed financing agreement or instrument or other Contract for money borrowed by ILG or any of the Company ILG Subsidiaries, in each case, having an outstanding principal amount in excess of $1,500,000;
(iv) any swap, forward, future, option, cap, floor, collar or similar financial Contract or other derivative Contract, or any other interest rate or foreign currency protection Contract;
(v) each Contract for the acquisition of any Person or any business unit thereof or the disposition of any material assets of ILG or any of the ILG Subsidiaries (other than in the ordinary course of business), in each case, involving payments in excess of $5,000,000, other than Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing;
(vi) each joint venture Contract, partnership agreement or limited liability company agreement with the SECa third party (in each case, other than with respect to wholly-owned ILG Subsidiaries);
(vii) each Contract that relates to ongoing or scheduled development plans or arrangements or capital expenditures, in an annual amount in excess of $1,500,000;
(viii) each Contract containing covenants expressly limiting in any Contract governing material respect the freedom of ILG or any of the ILG Subsidiaries to compete with any Person in a Related Party Transaction (as defined below)product line or line of business or operate in any geographic location;
(ix) any registration Contract providing a Person with any: (A) right to cause the appointment or nomination of directors of ILG or any ILG Subsidiary, (B) consent or approval rights agreements with respect to securities any change in Organizational Documents or other significant corporate action by ILG or any ILG Subsidiary, or (C) right of the Companyfirst refusal or first offer or other approval or consent rights with respect to any liquidation, dissolution, restructuring, recapitalization, reorganization or merger of ILG or any ILG Subsidiary;
(x) any employment or consulting Contract (in each case with respect to containing a change of control provision which would be triggered by the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary transactions contemplated by this Agreement and requires payments in excess of $250,0001,500,000; and
(xi) each Contract pursuant to which ILG or any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses ILG Subsidiaries grants to a third party or is granted from a third party any license with respect to Intellectual Property material to ILG and the ILG Subsidiaries (i) through (xi) is referred to herein taken as a “Company Material Contract”whole), other than licenses for commercially available software.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Material Contracts. (a) Section 4.21(aSchedule 3.11(a) contains a list (by applicable subsection) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of each of the following types of outstanding Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundparty:
(i) each Contract that (A) limits Contracts under which the Company is or restricts is reasonably likely to be entitled to receive revenues of more than $10,000 in any material respect calendar year, or under which the Company and its Subsidiaries from competing is reasonably likely to become subject to any obligation to pay a liability of more than $10,000 in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholecalendar year;
(ii) each Contract that is Contracts for the employment or engagement by the Company of any individual on a joint venture full time, part time, consulting, independent contractor or partnership agreement that is material other basis providing annual compensation of $25,000 or more, other than at-will arrangements without liability to the Company except for the payment for services rendered through the termination date and its Subsidiariesordinary course employee benefits through such date, taken as a wholeunder which the Company has any continuing obligations;
(iii) each collective bargaining Contract that is a loanwith any unions, guarantee association of indebtedness or credit agreementemployees, noteguilds, bondshop committees, mortgagework councils, indenture collective bargaining groups or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000labor organizations;
(iv) each Contract with respect Contracts for the payment of severance benefits, retention bonuses, sale bonuses, change of control bonuses or similar payments to an interestany officer, ratedirector, currency employee or other swap or derivative transaction (other than those between consultant of the Company and its Subsidiaries) with a fair value in excess of $1,000,000under which the Company has any continuing obligations;
(v) each Contract that is an acquisition agreement which constitutes a License listed or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiarieslisted on Schedule 3.19(b);
(vi) each Contract pursuant to which Contracts which, individually or in the aggregate, require the Company to make capital expenditures or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments purchase capital assets in excess of $1,000,000 in the aggregate10,000;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by Contracts between the Company with the SECand any Stockholder (or Affiliate thereof) under which any party thereto has any continuing obligations;
(viii) containing covenants that restrict the Company’s right to (A) engage in any Contract governing a Related Party Transaction business activity, (as defined below)B) engage in any line of business, (iii) operate in any geographic region, (C) compete with any other Person or (D) sell to or purchase from any other Person;
(ix) Contracts restricting the right of any registration rights agreements Person to compete with respect to securities of the Company;
(x) any employment Contracts involving a distributor, sales representative, distribution partner or consulting Contract (in each case with respect to which broker arrangement that by its express terms is not terminable by the Company has continuing obligations as at will or by giving notice of thirty (30) calendar days or less without liability to the Company other than payment for services rendered through the termination date;
(xi) which constitutes a Real Property Lease;
(xii) Contracts relating to Indebtedness of the date hereof) with Company or a Guarantee by the Company, or which creates any current (A) executive officer Lien on any assets of the Company, other than Permitted Liens;
(Bxiii) member partnership agreements or joint venture agreements or other Contracts (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with another Person(s);
(xiv) Contracts granting to any Person a first refusal, a first offer or similar preferential right to purchase or acquire any right, asset or property of the Company Boardor the Subject Securities;
(xv) involving the acquisition by the Company of any business enterprise whether via stock or asset purchase or otherwise;
(xvi) Contracts reaching a settlement, conciliation or similar agreement with any Person or Governmental Authority which, after the date hereof, will require payment of consideration to any Person or Governmental Authority or compliance by the Company with any covenants;
(Cxvii) Company Employee providing for an annual base salary in excess any stockholders agreement, registration rights agreement or any other similar Contract relating to or affecting the ownership of $250,000Capital Stock of the Company; and
(xixviii) any other Contract or series entered into outside the ordinary course of related Contracts under which it would reasonably be expected that business of the Company and its Subsidiaries would receive annual payments of $7,000,000 or more Company.
(each, a “Revenue Contract”b) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is Section 3.11(a), regardless of whether set forth on Schedule 3.11(a), shall be referred to herein as a “Company Material Contract” and collectively as, the “Material Contracts”. For the avoidance of doubt, multiple Contracts with the same third Person shall be aggregated for purposes of determining whether the thresholds set forth in this Section 3.11(a) have been satisfied or met.
(bc) Except for any Company Each Material Contract that has terminated or expired is legal, valid, binding, in full force and effect and enforceable in accordance with its terms against the Company and the other parties thereto, except as has not hadto the extent that enforcement may be affected by Laws relating to bankruptcy, reorganization, insolvency, fraudulent conveyance, and would not reasonably creditors’ rights and by the availability of injunctive relief, specific performance and other equitable remedies, including the discretion of a court of competent jurisdiction in which any proceeding may be expected to have, individually or in brought. Neither the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect andnor, to the Knowledge of the Company’s Knowledge, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other Person who is a party to a Company any Material Contract, is in violation of breach or default in default any material respect under any provision Material Contract (with or without the lapse of such time, or the giving of notice, or both). The Company Material Contract. True has made available to Buyer accurate and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto (or a written description of the material terms of any Material Contract that is not written). To the Company’s Knowledge, there is no ongoing dispute between the Company Material Contracts and any Person party to any Material Contract regarding an actual or alleged breach of such Material Contract. The Company has not sent or received any notice of breach, termination, cure, non-renewal, or modification with respect to any Material Contract that is not currently resolved.
(d) Schedule 3.11(d) contains a true, correct and complete copy of the Company’s standard customer agreement for the sale of Products/Services by the Company, and except as expressly set forth on Schedule 3.11(d), the Company is not party to any Contract for the sale of Products/Services by the Company that contains any material amendments thereto have been made available deviation from the terms and conditions set forth in the Company’s standard customer agreement. Except as set forth on Schedule 3.11(d), the Company has a written Contract with each customer of the Company that involves, or relates to, the sale of Products/Services by the Company to Parent prior to the date of this Agreementsuch customer.
Appears in 1 contract
Material Contracts. (a) Section 4.21(a5.17(a) of the Company Disclosure Letter Schedule sets forthforth a list of all Contracts, as including all amendments and supplements thereto, to which any member of any of the date of this Agreement, a correct and complete list of each of the following types of Contracts to which the Company Companies or any of its their respective Subsidiaries is a party or by which any of the Companies or their respective properties or assets Subsidiaries is bound:, meeting any of the descriptions set forth below (collectively referred to herein as the “Material Contracts”):
(i) all Contracts relating to any completed material business acquisition by the Companies or their respective Subsidiaries since the Lookback Date;
(ii) all written Contracts for the employment of any current officer, individual employee or other person on a full-time or consulting basis with required annual payments in excess of $200,000;
(iii) all Contracts relating to Debt of the Companies and their respective Subsidiaries;
(iv) all guaranties of any obligation for Debt;
(v) all Contracts under which any of the Companies or their respective Subsidiaries is lessee of, or holds or operates, any personal property owned by any other party, for which the annual rental payments exceed $100,000;
(vi) all Contracts under which any of the Companies or their respective Subsidiaries is lessor of or permits any third party to hold or operate any personal property for which the annual rental payments exceed $100,000;
(vii) all Contracts under which (A) the Companies or any of their respective Subsidiaries are granted rights in the Intellectual Property of any other Person (other than “off-the-shelf software” that is made available for a total cost of less than $100,000 and is not a material component of a Company Product) or (B) the Companies or any of their respective Subsidiaries have granted rights in Intellectual Property to any other Person;
(viii) each Contract that (A) limits or restricts in purports to limit the freedom of the Companies or their respective Subsidiaries (or, after Closing, Buyer or its Subsidiaries) or any material respect the Company and its Subsidiaries from competing of their respective Affiliates to compete in any line of business or within any geographic area with any Person, or materially restricts the Companies or their respective Subsidiaries (or after Closing, Buyer or its Subsidiaries) or any of their respective Affiliates ability to solicit or hire any Person in or solicit business from any geographic region or (B) contains exclusivity obligations or restrictions binding onPerson, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture could require the disposition of any material assets or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct line of business of the Company Companies or their respective Subsidiaries (or after Closing, Buyer or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earntheir respective Affiliates, other than Contracts that contain customary employee non-out” or similar obligations that could result in payments in excess of $1,000,000 solicitation provisions entered into in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) Ordinary Course of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below)Business and which account for less than $250,000 of revenue per annum;
(ix) any registration rights agreements each Contract (or group of related contracts with respect to securities a single transaction or series of the Companyrelated transactions) with any Material Supplier;
(x) any employment or consulting each Contract (in each case or group of related contracts with respect to which the Company has continuing obligations as a single transaction or series of the date hereofrelated transactions) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; andMaterial Customer;
(xi) any Contract involving annual payment or annual receipt of royalties or other amounts more than $100,000, in the aggregate, calculated based on the revenues or income of the Companies or their respective Subsidiaries or income or revenues related to any product of the Companies or their respective Subsidiaries during the preceding fiscal year;
(xii) each joint venture, partnership and other similar Contract involving the sharing of profits of the Companies or their respective Subsidiaries with any third party;
(xiii) each Affiliate Arrangement;
(xiv) each Parent-Level Agreement;
(xv) each Shared Agreement;
(xvi) any Contract with a Material Customer or Material Supplier (or group of related Contracts with respect to a single transaction or series of related Contracts under which it would reasonably transactions) that cannot be expected terminated by the Companies or their respective Subsidiaries on less than ninety (90) days’ notice (without monetary penalty);
(xvii) each Contract with a Material Customer or Material Supplier providing for the Companies or their respective Subsidiaries to be exclusive or preferred provider of any product or service to any Person or that otherwise involves the Company and its granting by any Person to the Companies or their respective Subsidiaries would receive annual payments of $7,000,000 exclusive or more preferred rights of any kind;
(eachxviii) each Contract providing for any Person to be the exclusive or preferred provider of any product or service to the Companies or their respective Subsidiaries, or that otherwise involves the granting by the Companies or their respective Subsidiaries to any Person of exclusive or preferred rights;
(xix) each Contract containing a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract provision of the type described in clauses commonly referred to as “most favored nation” provision for the benefit of a Person other than the Companies or their respective Subsidiaries;
(xx) each settlement or similar Contract pursuant to (i) through which the Companies or their respective Subsidiaries is obligated to pay consideration after the Closing Date, or that provides injunctive relief or grants specific performance; or (xiii) any entered into since the Lookback Date that exceed $25,000 in payment of consideration from the Companies or their respective Subsidiaries;
(xxi) each Contract for the sale of any of the assets of the Companies or their respective Subsidiaries, other than sales of inventory in the Ordinary Course of Business;
(xxii) each Contract under which the Companies or their respective Subsidiaries has advanced or loaned funds exceeding fifty thousand dollars ($50,000);
(xxiii) each Contract with any Governmental Authority or any Person that is referred prime contractor or subcontractor in respect of a Contract with any Governmental Authority;
(xxiv) each Contract with any Person on an employment or consulting basis providing annual compensation in excess of two hundred thousand dollars ($200,000) or is not cancelable by the Companies or their respective Subsidiaries without penalty on not less than ninety (90) days’ notice;
(xxv) any Contract that provides for any severance, retention, change in control or similar bonus or payment;
(xxvi) each Contract under which the Companies or their respective Subsidiaries has advanced or loaned any amount to herein as a “Company Material Contract”any of its directors, officers, or employees (other than under any Company’s or their respective Subsidiaries’ 401(k) plan); and
(xxvii) each collective bargaining or labor agreement.
(b) Except for any Company as set forth on Section 5.17(b) of the Disclosure Schedule: (i) all Material Contracts are in full force and effect; (ii) no Material Contract that has terminated or expired been materially breached, canceled (other than in accordance with its the terms of such Material Contract) or repudiated by the Companies and except as their respective Subsidiaries that is a party thereto, or, to the Knowledge of the Companies, any other party thereto; (iii) each of the Companies and their respective Subsidiaries has performed all material obligations required to be performed by it in connection with the Material Contracts to which it is a party and none of the Companies and their respective Subsidiaries has received any written, or to the Knowledge of the Companies, other claim or notice of default or event that with notice or lapse of time would constitute a default by any of the Companies and their respective Subsidiaries under any such Contract, nor to the Knowledge of the Companies, is any other party to any Material Contract in material breach or default thereunder; (iv) none of the Companies and their respective Subsidiaries has any present expectation or intention of not hadfully performing any obligation pursuant to any Contract to which it is a party and to the Knowledge of the Companies, no other party thereto intends to cancel, terminate, breach, or attempt to alter the terms of any such Material Contract, or to exercise or not to exercise any option to renew thereunder; (v) the Companies and their respective Subsidiaries have made available to Buyer true, correct and complete copies of each Material Contract (together with all exhibits thereto and all amendments, waivers or other changes thereto); (vi) each Material Contract is in full force and effect, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (vii) each Company Material Contract is valid and binding on, and in full force is enforceable by and effect against, the applicable Companies and their respective Subsidiaries thereto and, to the Knowledge of the CompanyCompanies, enforceable against the each other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreementthereto.
Appears in 1 contract
Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter 3.12.1 Schedule 3.12.1 sets forth, as of the date of this Agreement, forth a correct and complete list of each of the following types of Contracts (the “Material Contracts”): all (i) agreements for Indebtedness to which the Company or any of its Subsidiaries is a party or by which any of their respective properties the Companies is a party; (ii) agreements or assets is bound:
commitments to make material capital expenditures; (iiii) each Contract that (A) limits agreements to sell, lease or restricts in otherwise dispose of any material respect assets or properties of either Company, other than in the Ordinary Course; (iv) agreements limiting the freedom of a Company and its Subsidiaries from competing to compete in any line of business with any Person or in any geographic region area or with any Person; (v) Leases; (vi) joint venture agreements and partnership agreements to which a Company is a party; (vii) any license from a third party to any of the Companies for Intellectual Property, other than shrink wrapped software that is generally available in the commercial markets, such as word processing programs; (viii) Contracts involving any Companies’ investment in, or any loan to, any other Person; (ix) other than with respect to at-will Employees, employment agreements or loan agreements with any Employees; (x) Contracts that involve payments or receipts of either (A) more than $10,000 annually or (B) contains exclusivity obligations $20,000 in the aggregate in future payments or restrictions receipts over the life of such Contract; (xi) Contracts of value which default could have a Material Adverse Effect; (xii) Contracts outside of the Ordinary Course and (xiii) Contracts that require consent or notice of assignment or will accelerate or terminate on change of control; (xiv) manufacturing or joint development agreements; (xv) confidentiality and non-disclosure agreements (whether any of the Companies is the beneficiary or the obligated party thereunder); (xvi) contracts or commitments relating to commission arrangements with others; (xvii) consulting contracts and severance agreements, (xviii) indemnification agreements; (xix) any Contract with the federal, state or local government or any agency or department thereof; (xx) any Contract or other arrangement or understanding with a Related Party; (xxi) Contracts that are in the nature of offset or barter agreements.
3.12.2 Each Material Contract is valid, binding onand enforceable against the Company that is a party thereto, in accordance with its term, except that (i) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, relating to or limiting creditors’ rights generally, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). To the knowledge of the Sellers, each Material Contract that is valid, binding and enforceable against the other parties thereto, in accordance with its terms. None of the Companies is in default, violation or breach in any material respect under any Material Contract, and no event has occurred which with notice or lapse of time would constitute a joint venture material breach or partnership agreement that is material to the Company and its Subsidiariesdefault, taken or permit termination, modification, or acceleration, under such Material Contract. Except as a whole;
(iii) disclosed on Schedule 3.12.2, each Material Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to shall be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s full force and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired effect without penalty in accordance with its terms and except as immediately following the consummation of the transaction contemplated hereby. None of the Companies has not hadcommitted any act, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge there has been no omission by any of the CompanyCompanies, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadmay result in, and would not reasonably be expected to havethere has been no occurrence which may give rise to, individually material product liability or in liability for breach of warranty (whether covered by insurance or not) on the aggregate, a Company Material Adverse Effect, neither the Company nor part of any of its Subsidiariesthe Companies, nor with respect to the Knowledge of the Company any other party to a Company Material Contractproducts designed, is in violation of manufactured, assembled, sold, repaired, maintained, delivered or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent installed or services rendered prior to or on the date of this AgreementClosing Date.
Appears in 1 contract
Sources: Equity Purchase Agreement (Halo Technology Holdings, Inc.)
Material Contracts. (a) Section 4.21(aSchedule 3.11(a) of the Company Seller Disclosure Letter sets forth, as of the date of this Agreementhereof, a list of the following Contracts (other, in each case, than Real Property Leases and Excluded Contracts) (i) that relate primarily to the Business or to which any of the Purchased Assets are bound or (ii) for which any Conveyed Entity is a party (collectively, whether listed or required to be listed on Schedule 3.11(a) of the Seller Disclosure Letter, the “Material Contracts”), true, correct and complete list copies of each of which, as amended through the following types of Contracts date hereof, Seller has made available to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundPurchasers:
(i) each Contract that (A) limits Equipment Lease, which entails aggregate payments in excess of $200,000 per annum or restricts $500,000 in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a wholeaggregate;
(ii) each Contract that is a joint venture for goods and/or services between Seller, any Selling Subsidiary and/or any of their Affiliates (other than the Conveyed Entities) or partnership agreement that is material to any of the Company officers or directors of Seller, any Selling Subsidiary and/or any of their Affiliates (other than the Conveyed Entities), on the one hand, and its Subsidiariesany Selling Subsidiary and/or any Conveyed Entity, taken as a wholeon the other hand;
(iii) each Contract that is a loanmortgage, guarantee of indebtedness or credit indenture, security agreement, pledge, note, bondloan agreement or guarantee in respect of Indebtedness of any Conveyed Entity or any Selling Subsidiary or otherwise granting Liens with respect to any Conveyed Entity or any Selling Subsidiary or any of the Purchased Assets, mortgagein each case, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000250,000;
(iv) each customer Contract that is in force and effect with respect payments to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value Selling Subsidiaries and/or the Conveyed Entities in excess of $1,000,0002,000,000 during any of the years ended December 31, 2016 and December 31, 2015, or in excess of $1,000,000 during the six (6) months ended September 30, 2017;
(v) each Contract that is an acquisition agreement in force and effect with vendors of the Business with payments by the Selling Subsidiaries and/or the Conveyed Entities in excess of $2,000,000 during any of the years ended December 31, 2016 and December 31, 2015, or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or during the six (B6) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000months ended September 30, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries2017;
(vi) each material Contract relating to material Intellectual Property, including all material licenses (other than licenses to commercially available or “off the shelf” software) (each, a “Material IP Contract” and collectively, the “Material IP Contracts”);
(vii) each Contract materially limiting the freedom of any Selling Subsidiary or any Conveyed Entity to compete with any Person or in any geographic market with respect to a material portion of the Business;
(viii) each acquisition, merger, consolidation, recapitalization or similar agreement or letter of intent related to the acquisition of a business or line of business and pursuant to which the Company any Selling Subsidiary or any of its Subsidiaries Conveyed Entity has (A) continuing material indemnification obligations or (B) any “earn-out” or similar contingent payment obligations (other than any Contract that could result in payments in excess provides for the acquisition of $1,000,000 inventory, raw materials or assets in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company ordinary course and consistent with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined belowpast practice);
(ix) each Contract regarding the formation or participation in any registration rights agreements joint venture, partnership or other similar arrangement or involving the sharing of profits, losses, costs or Liability by any Selling Subsidiary or any Conveyed Entity with respect to securities of the Company;any other Person; and
(x) any employment each Contract containing a “most favored nation” pricing agreement or consulting a similar best available pricing agreement with a customer or supplier;
(xi) each Contract granting a power of attorney to a Person:
(in each case with respect to which xii) the Company has continuing obligations as Collective Bargaining Agreement Between Gerdau and The United Steelworkers Production and Maintenance Employees, effective March 1, 2017 through February 28, 2020; the Master Agreement between Shopmen’s Local Union No. 790 of the date hereof) with any current (A) executive officer International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers and Gerdau Reinforcing Steel, effective July 1, 2015 through June 30, 2019; the Agreement between Northwest Iron Workers Employers Association, Inc. and Iron Workers District Counsel of the CompanyPacific Northwest Local Nos. 14 (Spokane, WA) No, 29 (B) member Portland, OR), and No. 86 (Seattle, WA), effective July 1, 2017 through June 30, 2020; Agreement between Iron Worker Employers of the Company BoardState of California and a Portion of Nevada and the District Counsel of Iron Workers of the State of California and Vicinity, originally effective July 1, 2014 – June 30, 2017; the Southern California Master Labor Agreement between Southern California General Contractors and The Southern California District Counsel of Laborers, entered into July 1, 2015; the Arizona Master Labor Agreement between Arizona Steel Field Erectors Association and the International Association of Bridge, Structural, Reinforcing and Ornamental Iron Workers, Local No. 75, entered into August 1, 2017; the Collective Bargaining Agreement with the Regional District Counsel & Reinforcing Local Unions 846 and 847, with an effective date of May 3, 2017 through May 2, 2018 (the “Utah CBA”); and the Labor Agreement between Shopmen’s Local Union No. 790 of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers (AFL-CIO) and Conveyed Entity 2 (d/b/a Gerdau Reinforcing Steel (Las Vegas)), effective June 1, 2016 through May 31, 2020 (collectively, the “Conveyed Entities Collective Bargaining Agreements”);
(xiii) each settlement, conciliation or (C) Company Employee providing for an annual base salary similar agreement that could reasonably be expected to impose any monetary obligations in excess of $250,000; and500,000 or material non-monetary obligations upon any Conveyed Entity or any Purchased Assets after the date of this Agreement;
(xixiv) each Contract granting a first-refusal, first-offer or similar preferential right to purchase or acquire any other right, asset or property of any Conveyed Entity or any Purchased Asset;
(xv) each Contract or series of related Contracts under which it would reasonably be expected that providing for the Company payment by the Selling Subsidiaries and its Subsidiaries would receive annual payments Conveyed Entities in excess of $7,000,000 1,500,000 during any of the years ended December 31, 2016 and December 31, 2015, or more (each, a “Revenue Contract”) or make annual payments in excess of $5,000,000 750,000 during the six (6) months ended September 30, 2017, that cannot be terminated by the Selling Subsidiaries and Conveyed Entities on notice of thirty (30) days or moreless without Liability;
(xvi) each Parent Guarantee, Seller Surety Bond and Parent LofC;
(xvii) each WIP Contract and each subcontract under each WIP Contract, in each case, providing for payments in excess of $2,000,000;
(xviii) each Contract with surviving warranty obligations covering products sold or services rendered by the Business in excess of $2,000,000;
(xix) each Contract with any contractor or consultant providing services to any Conveyed Entity or the Purchased Assets Business that cannot be terminated by the Selling Subsidiaries and Conveyed Entities on notice of thirty (30) days or less without Liability and with payments by the Selling Subsidiaries and/or the Conveyed Entities in excess of $200,000 during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described years ended December 31, 2016 and December 31, 2015, or in excess of $100,000 during the nine (9) months ended September 30, 2017; and
(xx) each Contract with a Governmental Authority.
(b) Purchase orders, quotations and invoices are not required to be listed on Schedule 3.11(a) of the Seller Disclosure Letter, however, any purchase order, quotation or invoice that meets any of the requirements set forth in clauses (i) through (xixx) is referred to herein as of Section 3.11(a) shall each be deemed a “Company Material Contract”. Each Contract related to the TSA Consents and each IT Transition Agreement is not required to be listed on Schedule 3.11(a) of the Seller Disclosure Letter, however, any such Contract or IT Transition Agreement shall be deemed to be a Material IP Contract.
(bc) Except for any Company Each Material Contract (i) is a valid, binding and enforceable (subject to the Enforceability Exceptions) agreement of the Selling Subsidiary or the Conveyed Entity party thereto and, to the Knowledge of Seller, the other parties thereto, and (ii) is in full force and effect, and there exists no default, event of default, violation or event that has terminated occurred that would constitute such a default, event of default or expired violation (whether after the giving of notice or the lapse of time or both) by any Selling Subsidiary or any Conveyed Entity or, to the Knowledge of Seller, any other party to any such Contract, in accordance with its terms and except as has not hadeach case, and would not reasonably be expected to havewhich would, individually or in the aggregate, a Company Material Adverse Effect, each Company reasonably be expected to be material to the Business. No Selling Subsidiary or Conveyed Entity has released any of its material rights under any Material Contract is valid and binding and in full force and effect and, to the Knowledge of the CompanySeller, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other no party to a Company Material Contract has repudiated any of the terms thereof or threatened in writing to terminate, cancel or not renew any Material Contract.
(d) Schedule 3.11(d) of the Seller Disclosure Letter sets forth a true, correct and complete list, by category, of all equipment, machinery and other similar tangible assets or properties with an individual original cost of $100,000 or more that is owned by any Selling Subsidiary or any Conveyed Entity (“Tangible Personal Property”). Each Selling Subsidiary and each Conveyed Entity is in violation possession of all Tangible Personal Property owned or in default under any provision leased by it.
(e) Schedule 3.11(e) of such Company Material Contract. True the Seller Disclosure Letter sets forth a true, correct and complete copies list, with respect to each WIP Contract (i) of Selling Subsidiary 1, of the Company Material Contracts contract number, contract name, customer name, contract item, material, item category, material description, estimated quantity, remaining quantity, total invoiced quantity, estimated amount, remaining balance, invoiced amount, invoiced amount with tax, escalation, escalation with tax, original quantity, original value, billing unit and any material amendments thereto have been made available percentage shipped, and (ii) of Conveyed Entity 2, of the job number, client name, client number, job name, job department, manager, outside placer, federal funds, completion date, city code, initial estimate, sales manager, status, owner controlled insurance program, job class, bond, level of difficulty, paid, current price, current budget, current margin, current percentage, job to Parent prior date sales revenue, job to the date of this Agreementcost, job to date margin, job to date percentage, period to date sales, period to date cost, period to date margin, period to date percentage, remaining sales, remaining cost, remaining margin, remaining percentage, at completion amount, at completion cost, at completion margin, at completion percentage, variance to budget, variance percentage, job to date billing, job to date billing percentage, job to date over/under, job to date over/under percentage, total contract value before change orders, amount billed, backlog and backlog percentage.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Commercial Metals Co)
Material Contracts. (a) Subsections (i) through (viii) of Section 4.21(a3.17(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete Schedule list of each of the following types of Contracts contracts and agreements to which the Company or any of its Subsidiaries Subsidiary is a party or by which any (such contracts and agreements as are required to be set forth in Section 3.17(a) of their respective properties or assets is bound:the Company Disclosure Schedule being the “Material Contracts”):
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Act), whether or not filed by SEC) with respect to the Company with the SECand its Subsidiaries;
(viiiii) each contract and agreement which is likely to involve consideration of more than US$5,000,000, in the aggregate, in any Contract governing a Related Party Transaction (as defined below)12-month period;
(ix) any registration rights agreements with respect to securities of the Company;
(xiii) any employment or consulting Contract agreement or any other written agreement with any other officer, employee or consultant with annual compensation in excess of US$100,000 or which includes a change of control provision or provides for severance obligations upon termination;
(iv) all management contracts (excluding contracts (i) for employment or (ii) which involve consideration of less than US$100,000 in each case any 12-month period or (iii) which are terminable with respect no more than 90 days notice without payment of a termination fee), including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Subsidiary or income or revenues related to any product of the Company or any Subsidiary to which the Company has continuing obligations as or any Subsidiary is a party;
(v) all contracts and agreements with any Governmental Authority to which the Company or any Subsidiary is a party that are not for professional services or not otherwise in the ordinary course of business;
(vi) all contracts and agreements that limit, or purport to limit, the ability of the date hereofCompany or any Subsidiary to compete in any line of business or in any geographic area;
(vii) with all material contracts or arrangements that result in any current (A) executive officer person or entity holding a power of attorney from the Company or any Subsidiary that relates to the Company, (B) member any Subsidiary or their respective businesses, excluding any power of attorney entered into in the Company Board, or (C) Company Employee providing for an annual base salary in excess ordinary course of $250,000business consistent with past practice; and
(xiviii) any all other Contract contracts and agreements, whether or series not made in the ordinary course of related Contracts under business, which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (eachbreach, a “Revenue Contract”) or make annual payments of $5,000,000 or morenon-performance, in each caseamendment, during any twelve (12) month period termination or the remaining period absence of such Contractwould, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not hadindividually, and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, each . No contract pursuant to which the Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or any Subsidiary performs professional services in the aggregate, ordinary course of business shall constitute a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Stantec Inc)
Material Contracts. (aSchedule 4.1(n) Section 4.21(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, contains a correct and complete list as of each the date hereof, of the following types of Contracts (hereinafter referred to which as the Company "Material Contracts"):
(i) except for investment securities held by AFC or any of its Subsidiaries Subsidiaries, all bonds, debentures, loan agreements, notes, mortgages, deeds to secure debt, deeds of trust and guaranties to which AFC or any Subsidiary is a party or by which AFC or any of their respective Subsidiary or its properties or assets is are bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that all leases (whether capital or operating) involving an annual commitment or annual payments of $25,000 or more under which AFC or any Subsidiary is the lessee of real or personal property, and all leases of property used in the Fibers Business with a joint venture (A) book value in excess of $10,000 or partnership agreement that is material to (B) fair market value in excess of $25,000, specifying the Company name of the lessor or sublessor, the lease term and its Subsidiaries, taken as a wholebasic annual rent;
(iii) each Contract that is a loan, guarantee of indebtedness all employment and consulting agreements between AFC or credit agreement, note, bond, mortgage, indenture any Subsidiary and any person or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000entity;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction all existing contracts and commitments (other than those between the Company described in subparagraphs (i), (ii) or (iii), and any Employee Plans (as hereinafter defined) to which AFC or any Subsidiary is a party or by which AFC or any Subsidiary or its Subsidiariesproperties or assets may be bound involving either (A) with a fair value in excess annual payments of $1,000,00025,000 or more or (B) aggregate payments of $50,000 or more;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiariescollective bargaining agreements;
(vi) each Contract pursuant to which any agreement for the Company purchase of materials, supplies, goods, services, equipment or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in other assets for the Fibers Business providing for (A) annual payments in excess of $1,000,000 in 25,000 or more, (B) aggregate payments of $25,000 or more or (C) the aggregatepurchase of more than 90 days usage of raw materials;
(vii) each “material contract” any sales, distribution or other similar agreement providing for the sale of materials, supplies, goods, services, equipment or other assets of the Fibers Business that provides for either (as such term is defined in Item 601(b)(10A) annual payments of Regulation S-K under the Securities Act), whether $25,000 or not filed by the Company with the SECmore or (B) aggregate payments of $50,000 or more;
(viii) any Contract governing a Related Party Transaction (as defined below)partnership, joint venture or other similar agreement or arrangement with respect to the Fibers Business;
(ix) any registration rights agreements with respect agreement relating to securities the deferred purchase price of property of the CompanyFibers Business (whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $25,000 and which may be prepaid on not more than 30 days notice without the payment of any penalty;
(x) any employment option, license, franchise or consulting Contract (in each case similar agreement with respect to which the Company has continuing obligations as of Fibers Business or any assets used in the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; andFibers Business;
(xi) any agency, dealer, sales representative, marketing or other Contract similar agreement with respect to the Fibers Business;
(xii) any agreement that limits the freedom of AFC to compete in any line of business or series with any person or entity or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of related Contracts under which it or encumber any asset used in the Fibers Business or that would reasonably be expected that so limit the Company and its Subsidiaries would receive annual payments freedom of $7,000,000 AFC or Bunzl after the Closing Date;
(xiii) any agreement providing for any purchase or sale obligations with respect to the Fibers Business with a duration of such obligations in excess of six months;
(xiv) any agreement with or for the benefit of (A) any Affiliate (as defined below) of AFC; (B) any person or entity directly or indirectly owning, controlling or holding with power to vote, 5% or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated outstanding voting securities of AFC or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its SubsidiariesAffiliates, nor (C) any person or entity 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to the Knowledge vote by AFC or any of its Affiliates or (D) any director or officer of AFC or any of their respective Affiliates or any "Associates" or members of the Company any other party to a Company Material Contract"Immediate Family" (as used herein, is the terms "Affiliate", "Associate" or "Member of the Immediate Family" being respectively defined in violation Rule 12b-2 or Rule 16a-1 of or in default under any provision the Exchange Act) of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.person or entity; and
Appears in 1 contract
Material Contracts. (a) Section 4.21(a) of the The Company Disclosure Letter sets forth, as of the date of this Agreement, a correct has filed all contracts and complete list of each of the following types of Contracts agreements required to which the Company or any of its Subsidiaries is a party or be filed by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its SubsidiariesSubsidiaries as material contracts, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K B under the Securities Act. All agreements filed as exhibits to the Company SEC Reports together with each agreement that would have been required to be filed as an exhibit to the Company SEC Reports if such agreement had been entered into prior to the date of filing any such Company SEC Report are referred to herein as the "Company SEC Material -------------------- Contracts." ---------
(b) To the Company's knowledge (after reasonable due investigation), whether or not filed by set forth in Schedule 3.14(b) is a complete and correct list, as of the date of ---------------- this Agreement, of all agreements of the following type to which the Company or a Company Subsidiary is a party or may be bound (collectively, the "Other ----- Company Material Contracts"): (i) employment, severance, termination, -------------------------- consulting and retirement agreements; (ii) loan agreements, indentures, letters of credit, mortgages, notes and other debt instruments evidencing indebtedness in excess of One Hundred Thousand Dollars ($100,000), other than those relating to intercompany debt among the Company and the Company Subsidiaries or guarantees of any of the foregoing; (iii) agreements that require aggregate future payments of more than One Hundred Thousand Dollars ($100,000); (iv) agreements involving payments in excess of Twenty-Five Thousand Dollars ($25,000) concerning any provisions with respect to a "change in control"; (v) material agreements with any key employee, director, officer or beneficial owner (as determined pursuant to Rule 13d-3 promulgated under the SEC;
Exchange Act) of five percent (5%) or more of Company Common Stock; (vi) agreements or arrangements concerning a partnership or joint venture; (vii) agreements or arrangements requiring noncompetition or material agreements or arrangements requiring confidentiality; (viii) any Contract governing a Related Party Transaction written agreement (as defined below);
including any purchase order, letter agreement or other writing evidencing the Company's arrangements with customers) whereby the Company or the Company Subsidiaries provided services in fiscal year 1999 for aggregate payments in excess of Three Hundred Fifty Thousand Dollars ($350,000) per annum; (ix) any registration rights agreements all leases (or subleases) with respect to securities of real property leased by the Company;
Company as lessee or sublessee ("Real ---- Property Leases"); and (x) any employment agreements for a remaining term of five (5) years or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) --------------- more with any current (A) executive officer of the Company, (B) member customer of the Company Board, or (C) any Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Subsidiary. The Company SEC Material Contracts under which it would reasonably be expected that and the Other Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is Material Contracts are collectively referred to herein as a “the "Company Material Contract”Contracts". The parties acknowledge -------------------------- and agree that the condition precedent to Acquiror's obligation to consummate the Merger in Section 8.2(a) shall be satisfied with respect to the Company's -------------- representations and warranties set forth in this Section 3.14(b) if such --------------- representations and warranties are substantially true and correct in all material respects as of the Closing Date.
(bc) Except for any as set forth in Schedule 3.14(c), all Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is ---------------- Contracts are valid and binding and in full force and effect and, on the date hereof except to the Knowledge of the Company, enforceable against the other party or parties thereto extent they have previously expired in accordance with its their terms, subject as the same may have been amended from time to the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadtime, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company Subsidiary has (or has any knowledge that any other party thereto has) violated any provision of, or committed or failed to perform any act which with or without notice, lapse of time or both would constitute a default under the provisions of any Company Material Contract, is in violation of or in default under any provision of such Company except for defaults which have not had and which would not be reasonably likely to have a Material ContractAdverse Effect on the Company. True and complete copies of the all Company Material Contracts and any material amendments thereto have been delivered to Acquiror or made available to Parent prior to the date of this Agreementfor inspection by Acquiror.
Appears in 1 contract
Sources: Merger Agreement (Answerthink Consulting Group Inc)
Material Contracts. (a) Except for this Agreement, Contracts filed as exhibits to the Company SEC Documents or as set forth in Section 4.21(a) 4.20 of the Company Disclosure Letter sets forthSchedule, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts to which neither the Company or nor any of its Subsidiaries is a party to or by which any of their respective properties or assets is boundbound by:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities SEC);
(ii) any Contract between the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company (or of any Subsidiary of the Company) or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), whether on the other hand, including (but not limited to) any Contract pursuant to which the Company or any Subsidiary of the Company has an obligation to indemnify such officer, director, Affiliate or family member but in each case excluding any Company Benefit Plans;
(iii) any Contract that requires or is reasonably likely to require annual or one time payments or delivery of goods, services, materials, Intellectual Property or other assets from third parties to the Company and its Subsidiaries of at least $5,000,000, in each case that is not filed terminable for convenience by the Company or its Subsidiaries on ninety (90) days’ notice or less and that is not a Contract of a type that is described in another subsection of this Section 4.20(a);
(iv) any Contract that requires or is reasonably likely to require annual or one-time payments or delivery of goods, services, materials, Intellectual Property or other assets from the Company and its Subsidiaries to third parties of at least $5,000,000, in each case that is not terminable for convenience by the Company or its Subsidiaries on ninety (90) days’ notice or less and that is not a Contract of a type that is described in another subsection of this Section 4.20(a);
(v) any Contract that imposes any restriction on the right or ability of the Company or any of its Subsidiaries to compete in any material respect (or that following the First Effective Time will restrict the ability of Parent and its Subsidiaries (other than the Company and its Subsidiaries) to compete) with any other Person in any line of business or geographic region or that contains any standstill or similar agreement that has not expired or terminated and pursuant to which the SECCompany or its Subsidiaries has agreed not to acquire or dispose of the securities of another Person;
(vi) 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” covenants that are material to the Company and its Subsidiaries;
(vii) any Collective Bargaining Agreement to which the Company or any of its Subsidiaries is a party;
(viii) any Contract governing a Related Party Transaction (as defined below)agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $5,000,000, including any guarantees of Indebtedness of any other Person and excluding trade payables arising in the ordinary course of business;
(ix) any registration rights agreements Contract that grants any right of first refusal, right of first offer or similar right to a third party (including stockholders of the Company) with respect to securities any material assets, rights or properties of the Company and its Subsidiaries that is (A) triggered by or exercisable in connection with the execution, delivery or performance of this Agreement or the Transactions, (B) exercisable at a date certain or is subject to similar time-based vesting of rights, (C) currently exercisable or (D) material and, to the knowledge of the Company, is likely to be triggered or become exercisable;
(x) any employment Contract that provides for the acquisition or consulting disposition of any assets (other than acquisitions or dispositions of assets in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains outstanding obligations of the Company or any of its Subsidiaries as of the date of this Agreement in excess of $5,000,000 or that are otherwise material;
(xi) (A) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company that is material, and (B) any strategic alliance, collaboration, co-promotion or research and development project Contract that is material;
(xii) any Contract that by its terms limits or restricts 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, or (B) to make loans to 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, except for any such Contract that is entered into in the ordinary course of business;
(xiv) any Contract that provides for indemnification by the Company or any of its Subsidiaries of any other Person, except for any such Contract that is entered into in the ordinary course of business;
(xv) any Contract with the Centers for Medicare and Medicaid Services;
(xvi) any Contract relating to the voting or control of Company Common Stock or the election of directors of the Company; and
(xvii) any Contract (in each case with respect A) granting the Company or any of its Subsidiaries any right to use any rights under any Intellectual Property, other than “off the shelf” software that has not been modified for use by the Company or any of its Subsidiaries and does not exceed a cost to the Company or any of its Subsidiaries of $100,000 annually, (B) pursuant to which the Company has continuing obligations as or any of its Subsidiaries grants any third person the date hereof) with right to use any current rights under any Intellectual Property (A) executive officer other than non-exclusive licenses to Intellectual Property granted in the ordinary course of the Company, (B) member of the Company Boardbusiness), or (C) Company Employee providing for an annual base salary in excess restricting the right of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and or any of its Subsidiaries would receive annual payments of $7,000,000 to use, register, transfer, license or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during enforce any twelve (12) month period or the remaining period of such Contract, if shorterCompany Intellectual Property. Each Contract All contracts of the type described types referred to in clauses this Section 4.20 (iwhether or not set forth on Section 4.20 of the Company Disclosure Schedule) through (xi) is are referred to herein as a “Company Material Contract”Contracts.
(b) Except for any ” The Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement a complete and correct copy of each Company Material Contract as in effect on the date of this Agreement.
(b) Neither the 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 party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract and, since December 31, 2013, no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the knowledge of the Company, through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach of or default under the terms of any Company Material Contract, in each case, except as has not had and would not reasonably be expected to have a Company Material Adverse Effect. 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, subject to the Enforceability Exceptions. There are no material disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract. Neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Surgical Care Affiliates, Inc.)
Material Contracts. (a) Subsections (i) through (xiii) of Section 4.21(a4.17(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of each of Schedule lists the following types of Contracts contracts and agreements to which the Company or any of its Subsidiaries Subsidiary is a party or by which any (such contracts and agreements as are required to be set forth in Section 4.17(a) of their respective properties or assets is bound:the Disclosure Schedule being the “Material Contracts”):
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities ActSEC) with respect to the Company and its Subsidiaries;
(ii) all contracts and agreements with the Company’s top twenty (20) customers other than those contracts and agreements that are not material to the relationship with the applicable customer (based on the revenue from such customer during the six (6)-month period ended June 30, 2007) (the “Top Customers”) and all contracts and agreements with the Company’s top ten (10) vendors (based on amounts paid to such vendors during the six (6) month period ended June 30, 2007) (the “Top Vendors”);
(iii) all contracts and agreements, whether or not filed made in the ordinary course of business, pursuant to which the Company or any Subsidiary paid or received more than three million dollars ($3,000,000), during the six (6)-month period ending on September 30, 2007;
(iv) all contracts and agreements evidencing Indebtedness in excess of one million dollars ($1,000,000);
(v) all joint venture and partnership agreements and all business acquisition or divestiture agreements (and all letters of intent relating to any such pending transactions) involving consideration payable or receivable in excess of five million dollars ($5,000,000) and entered into by the Company with since January 1, 2004;
(vi) all contracts and agreements relating to future issuances of securities of the SECCompany or any Subsidiary (and all letters of intent relating to any such pending transaction ) other than any Plans;
(vii) all material leases of real property;
(viii) any Contract governing a Related Party Transaction (as defined below)all Intellectual Property Contracts;
(ix) any registration rights all contracts and agreements with respect any U.S. Governmental Authority other than contracts and agreements that are not material to securities of the Companyrelationship with the U.S. Governmental Authority or any branch or agency thereof and not subject to any confidentiality or secrecy restriction imposed by a Governmental Authority;
(x) all material contracts and agreements that materially limit, or materially purport to limit, the ability of the Company or any employment Subsidiary to compete in any line of business or consulting Contract with any person or entity or in any geographic area or during any period of time;
(xi) all material contracts and agreements relating in each case with respect whole or in part to Intellectual Property under which the Company has continuing obligations as granted a non-assertion clause, a covenant not to s▇▇ or defensive suspension clauses;
(xii) all contracts and agreements providing for benefits under any Plan required to be listed in Section 4.10 of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000Disclosure Schedule; and
(xixiii) any other Contract or series of related Contracts under which it would reasonably all contracts for employment required to be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, listed in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract Section 4.10 of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Disclosure Schedule.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Nokia Corp)
Material Contracts. (a) Section 4.21(aExcept for contracts filed as exhibits to the Company's Annual Report on Form 10-K for the year ended January 31, 2002 (the "CURRENT 10-K"), SECTION 3.19(a) OF THE DISCLOSURE SCHEDULE (with paragraph references corresponding to those set forth below) lists each of the following contracts and agreements (including oral agreements) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of each of its Subsidiaries:
(i) all material franchise, license (other than licenses to use "off-the-shelf" software or software in respect of which the following types Company has paid and/or expects to be required to pay in the future less than $50,000 in the aggregate) and royalty contracts and agreements to which the Company or any of Contracts its Subsidiaries is either a licensor or licensee identified on SECTION 3.15(b) OF THE DISCLOSURE SCHEDULE;
(ii) all contracts with management personnel and contracts with independent contractors or consultants (or similar arrangements) to which the Company or any of its Subsidiaries is a party and which are not cancelable without penalty or by which any further payment in excess of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company $200,000 and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a wholewithout more than 30 days' notice;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between guarantees by the Company and or any of its wholly wholly-owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess Subsidiaries of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets Indebtedness of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000wholly-owned Subsidiaries, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s all contracts and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract agreements pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” (x) incurred Indebtedness (other than Intercompany Indebtedness) or similar obligations that could result (y) directly or indirectly guaranteed the Indebtedness of any other Person, in payments in excess of each case other than any such contracts or agreements as do not involve more than $1,000,000 50,000 individually or $250,000 in the aggregate;
(viiiv) each “all material contract” contracts, agreements, commitments, written understandings or other arrangements with any Governmental Authority, to which the Company or any of its Subsidiaries is a party;
(as such term is defined v) all contracts and agreements containing any provision or covenant limiting or purporting to limit the freedom of the Company or any of its Subsidiaries to compete in Item 601(b)(10any line of business in any geographic area;
(vi) all contracts and agreements relating to the lease of Regulation S-K under the Securities Act), whether or not filed real property used by the Company or its Subsidiaries (each, a "REAL PROPERTY LEASE") requiring annual payments in excess of $200,000 or aggregate payments over the remaining term of the contract or agreement in excess of $1,000,000;
(vii) all collective bargaining or similar agreements with any labor organization, applicable to U.S. employees of the SECCompany or any of its Subsidiaries;
(viii) any Contract governing a Related Party Transaction (as defined below)all joint venture, partnership and similar contracts, agreements and commitments;
(ix) any registration rights all contracts and agreements with respect to securities or for the benefit of any Affiliate of the Company or immediate family member thereof (other than the Company;'s Subsidiaries); and
(x) any employment all other contracts and agreements (other than contracts or consulting Contract (agreements in each case with respect the ordinary course of business for the purchase of raw materials or finished merchandise or sale of inventory) requiring the Company to expend, or pursuant to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Companywill receive, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary funds in excess of $250,000; and
(xi) 1 million at any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually one time or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreementtwelve-month period.
Appears in 1 contract
Material Contracts. (ai) Except for (x) this Agreement and (y) the Contracts filed as exhibits to the Company Reports, Section 4.21(a4.1(j) of the Company Disclosure Letter sets forthaccurately and completely lists, as of the date of this Agreementhereof, a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is are bound:
(iA) each any lease of real or personal property providing for annual base rentals of $250,000 or more in the current year;
(B) any Contract that is both (Ax) limits reasonably expected to require annual payments from or restricts in any material respect to the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or more than $1,000,000 over the life of such Contract and (By) contains exclusivity obligations or restrictions binding on, and material to, not cancelable by the Company and or such Subsidiary without any financial or other penalty on 180 days or less notice; and
(C) other than with respect to any partnership that is directly or indirectly wholly owned by the Company or any directly or indirectly wholly owned Subsidiary of the Company, any partnership, joint venture, or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company owns more than 15% voting or economic interest, or any interest with a book value of more than $5,000,000 without regard to percentage voting or economic interest;
(D) any Contract (other than any Contract whose only parties are the Company and/or any direct or indirect wholly owned Subsidiaries of the Company) relating to indebtedness for borrowed money owing by the Company or any of its Subsidiaries, taken as a wholeother than any Contract relating to indebtedness with an outstanding principal amount of less than $1,000,000 (whether incurred, assumed, guaranteed or secured by any asset);
(iiE) each any Contract required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company in a Current Report on Form 8-K since the Applicable Date;
(F) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(G) any Contract that requires the future acquisition from another Person or future disposition to another Person of assets or capital stock or other equity interest;
(H) any Contract under which the Company or the applicable Subsidiary has agreed to make after the date hereof any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries and other than extensions of trade credit in the ordinary course of business), in any such case which, individually, is a joint venture or partnership agreement in excess of $500,000;
(I) any Contract that is involves ongoing limitations, that are material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between on the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets ability of the Company or any of its Subsidiaries after to compete in any business line or geographic area;
(J) any written Contracts (x) granting the date Company or any of this Agreement its Subsidiaries a license, sublicense or other rights under, or a covenant not to ▇▇▇ with respect to, any Intellectual Property of any Third Party and/or (y) granting any Third Party a fair market value license, sublicense or purchase price other rights under, or a covenant not to ▇▇▇ with respect to, any Intellectual Property of more than $1,000,000the Company or any of its Subsidiaries, excluding, in each case, of (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) any licenses for commercially available “off-the-shelf” software for a license fee of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of more than $200,000 per year; and
(K) any Contract to which the Company or any of its Subsidiaries;
(vi) each Contract Subsidiaries is a party containing a standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” continues to be obligated not to acquire assets or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;other party or any of its Affiliates (the Contracts described in clauses (A) – (K), together with all exhibits and schedules to such Contracts, being the “Material Contracts”).
(xii) any employment or consulting A copy of each Material Contract (is contained in the Data Room and each case with respect to which such Material Contract is valid, binding and enforceable against the Company has continuing obligations as in accordance with its terms, subject to the Bankruptcy and Equity Exception. As of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments and, to the knowledge of $7,000,000 the Company, the other parties thereto, are not in default or more (each, a “Revenue Contract”) or make annual payments breach in any respect under the terms of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Material Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except except for any Company Material Contract such defaults or breaches that has terminated or expired in accordance with its terms and except as has have not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither Neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company Subsidiaries has received written notice from any other party to a Company Material ContractContract of the existence of any event, is in violation or condition which constitutes, or, after notice or lapse of time or in both, will constitute, a default under any provision of such Company Material Contract. True and complete copies on the part of the Company or any of its Subsidiaries under any Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementContract.
Appears in 1 contract
Sources: Merger Agreement (Golfsmith International Holdings Inc)
Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter sets forthAll Contracts, including amendments thereto, required to be filed as of the date of this Agreementexhibits to any Cubs SEC Documents filed after January 1, a correct and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on2025, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not Exchange Act have been so filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof, and no such Contract has been amended or modified (or further amended or modified, as applicable) that would require a filing pursuant to Item 601(b)(10) of Regulation S-K since the date such Contract or amendment was filed. To the extent any such Contracts were filed in redacted form (including any omission of exhibits, schedules or other attachments), Cubs has made available to Dodgers correct and complete copies thereof (including all material amendments, modifications, extensions or renewals with any current respect thereto and all exhibits, schedules and other attachments).
(Ab) executive officer Other than the Contracts set forth in clause (a) above, Section 2.10(b) of the CompanyCubs Disclosure Letter sets forth a correct and complete list, and Cubs has made available to Dodgers correct and complete copies (B) member including all material amendments, modifications, extensions or renewals with respect thereto), of each of the Company Boardfollowing Contracts (other than any Cubs Benefit Plans) to which Cubs or any of the Cubs Subsidiaries is a party or bound as of the date hereof:
(i) any Contract which is between Cubs or any of the Cubs Subsidiaries, on the one hand, and any of their respective officers, directors or principals (Cor any such Person’s Affiliates) Company Employee providing for an or any Person that holds or owns five percent (5%) or more of the shares of Cubs’ capital stock (or any Affiliates of any such Person), on the other hand, involving aggregate annual base salary payments in excess of $250,000; and120,000, other than compensation arrangements with the directors on the Cubs Board in their capacity as such;
(xiii) any other each Contract or series Cubs Organizational Document that would, on or after the Closing Date, prohibit or restrict the ability of related Contracts under which it would reasonably be expected that the Company and Surviving Corporation or any of its Subsidiaries would receive annual payments to declare and pay dividends or distributions with respect to their capital stock, pay any Indebtedness for borrowed money, obligations or liabilities from time to time owed to the Surviving Corporation or any of its Subsidiaries, make loans or advances or transfer any of its properties or assets;
(iii) each Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that (A) materially restricts the ability of Cubs or any of the Cubs Subsidiaries to (x) compete in any material line of business or material geographic area or with any Person during any period of time after the Effective Time or (y) make, sell or distribute any material products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets or properties or (B) could require the disposition of any material assets or line of business of Cubs or any of the Cubs Subsidiaries;
(iv) each Contract that creates, evidences, provides commitments in respect of, secures or guarantees (A) Indebtedness for borrowed money in any amount in excess of $7,000,000 50,000,000 or more (eachB) other Indebtedness (other than obligations under a Derivative Product or any guarantee or other credit support thereof) of Cubs or any of the Cubs Subsidiaries (whether incurred, a “Revenue Contract”assumed, guaranteed or secured by any asset) or make annual payments in excess of $5,000,000 or more50,000,000, other than, in each case, during agreements solely between or among Cubs and the Cubs Subsidiaries;
(v) any twelve Labor Agreement;
(12vi) month period any Contract relating to any pending acquisition or divestiture pursuant to which the remaining period of such Contract, if shorter. Each aggregate consideration (whether in cash or otherwise) is equal to or greater than $150,000,000; or
(vii) any Contract of the type set forth on Section 2.10(b)(vii) of the Cubs Disclosure Letter.
(c) The Contracts described in the foregoing clauses (ia) and (b), together with all exhibits and schedules to such Contracts, as amended through (xi) is the date hereof or as hereafter amended in accordance with Section 4.1 hereof, are referred to herein as a “Company Cubs Material ContractContracts.”.
(bd) Except for any Company Each Cubs Material Contract that has terminated is valid and binding on Cubs or expired the Cubs Subsidiary party thereto, as the case may be, and, to the Knowledge of Cubs, each other party thereto, and is in full force and effect in accordance with its terms terms, except for (i) terminations or expirations at the end of the stated term or (ii) such failures to be valid and except binding or to be in full force and effect as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Cubs Material Adverse Effect, in each Company Material Contract case subject to Enforceability Exceptions.
(e) Neither Cubs nor any of the Cubs Subsidiaries is valid and binding and in full force and effect breach of, or default under the terms of, and, to the Knowledge of the CompanyCubs, enforceable against the no other party to any Cubs Material Contract is in breach of, or parties thereto default under the terms of, any Cubs Material Contract, nor is any event of default (or similar term) continuing under any Cubs Material Contract, in accordance with its termseach case where such breach, subject to the Enforceability Exceptions. Except for breaches, violations default or defaults which have not had, and event of default (or similar term) would not reasonably be expected to have, individually or in the aggregate, a Company Cubs Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Material Contracts. (a) Except for this Agreement and the Contracts disclosed in the Filed Parent SEC Documents, Section 4.21(a5.18(a) of the Company Parent Disclosure Letter sets forthforth a true and complete list, as of the date of this Agreement, a correct and Parent has made available to the Acquired Companies true and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is boundcopies, of:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken would be required to be filed by Parent as a whole“material contract” pursuant to Item 601(b)(10) of Regulation S‑K under the Securities Act;
(ii) each Contract that to which Parent or any Parent Subsidiary is a joint venture party that (A) restricts the ability of Parent or partnership agreement any Parent Subsidiary to compete in any business or with any Person in any geographical area, (B) requires Parent or any Parent Subsidiary to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of any third party, except in the case of each of clauses (A), (B) and (C) for such restrictions, requirements and provisions that is are not material to Parent and the Company and its Parent Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness under which Parent or credit agreement, note, bond, mortgage, indenture any Parent Subsidiary licenses Intellectual Property from or other binding commitment to any third party (other than letters (A) generally commercially available, off-the-shelf software programs and (B) non-exclusive licenses in the ordinary course of credit business), except for such licenses and those between sublicenses that are not material to Parent and the Company and its wholly owned Parent Subsidiaries, taken as a whole;
(iv) any Contract pursuant to which Parent or any Parent Subsidiary will acquire any material ownership interest in any other Person or other business enterprise other than any Parent Subsidiary, in each case, with a value greater than $1,000,000 after the date of this Agreement;
(v) each Contract that constitutes a commitment relating to indebtedness for borrowed money or the deferred purchase price of property by Parent or any Parent Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in an amount excess of $1,000,000, other than agreements solely between or among Parent and any Parent Subsidiaries;
(vi) each Contract for a Derivative Transaction;
(vii) each Contract (including any Parent Real Property Lease) to which Parent or any Parent Subsidiary is a party that provides for annual payments, receipts or expenditures in excess of $1,000,000;
(ivviii) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each any Contract that is an acquisition a settlement, conciliation or similar agreement with any Governmental Entity or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) Parent or any Parent Subsidiary will have any material obligations after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below)Agreement;
(ix) each Labor Agreement respecting employees of Parent or any registration rights agreements with respect to securities of the Company;Parent Subsidiary; and
(x) each Contract with or binding upon Parent or any employment Parent Subsidiary or consulting Contract (in each case with respect to which the Company has continuing obligations as any of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, their respective properties or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected assets that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract is of the type that would be required to be disclosed under Item 404 of Regulation S‑K under the Securities Act. Each such Contract described in clauses (i) through (xix) above is referred to herein as a “Company Material Parent Specified Contract.”.
(b) Except for any Company Material Contract that has terminated As of the date of this Agreement, each of the Parent Specified Contracts is valid, binding and enforceable on Parent or expired in accordance with its terms and except a Parent Subsidiary, as has not hadthe case may be, and, to the Knowledge of Parent, each other party thereto, and is in full force and effect except (i) for such failures to be valid, binding or enforceable or to be in full force and effect as would not reasonably be expected to haveexpected, individually or in the aggregate, to have a Company Parent Material Adverse Effect, each Company Material Contract is valid Effect and binding and in full force and effect and(ii) insofar as such enforceability may be limited by Creditors’ Rights. As of the date of this Agreement, to the Knowledge of the CompanyParent, enforceable against the there is no default under any Parent Specified Contract by Parent or any Parent Subsidiary or any other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadthereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by Parent or any Parent Subsidiary or any other party thereto, in each case except as would not reasonably be expected to haveexpected, individually or in the aggregate, to have a Company Parent Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Pedevco Corp)
Material Contracts. (a) Section 4.21(a) Schedule 3.17 of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of Schedules lists each of the following types Contracts of the Company and its Subsidiaries (such contracts and agreements as described or required to be listed in this Section 3.17(a) being “Material Contracts”) true and complete copies of which, including all amendments thereto, have been provided to the Acquiror:
(i) all Contracts to with customers or clients that provided for payment or receipt by the Company or any of its Subsidiaries of more than $750,000 in 2013 or projected for such payment or receipt in 2014;
(ii) all Contracts with vendors that provide for payment or receipt by the Company or any of its Subsidiaries of more than $150,000 in 2013 or projected for such payment or receipt in 2014;
(iii) all Contracts under which the Company or any of its Subsidiaries is granted a party or by which license to use any of their respective properties or assets is bound:Intellectual Property;
(iiv) each Contract that (A) limits or restricts in any material respect all Contracts under which the Company and or any of its Subsidiaries from competing agreed to indemnify a third party in respect of claims for infringement or misappropriation of Intellectual Property;
(v) all Contracts relating to indebtedness for borrowed money;
(vi) all Contracts that limit or purport to limit the ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic region area or during any period of time;
(Bvii) contains exclusivity obligations all Contracts that are a lease or restrictions binding onsublease of real property or interests in real property used in the business of the Company or any of its Subsidiaries;
(viii) all Contracts that are entered into with any Governmental Authority;
(ix) all employment, severance, change in control and material to, offer Contracts between the Company or any of its Subsidiaries and any employee or independent contractor (other than an offer letter or employment agreement that is terminable at will by the Company or any of its Subsidiaries both without any penalty and without any obligation of the Company and any of its Subsidiaries, taken as a whole) to pay severance in excess of $50,000;
(iix) all Contracts that relate to the acquisition, transfer, use, development, sharing or license of any technology or any Intellectual Property, other than (1) confidentiality agreements, (2) employment agreements, (3) consulting or advisory agreements, and (4) license agreements for off-the-shelf software licensed for an aggregate fee of not more than $50,000, in each case entered into in the Ordinary Course of Business;
(xi) all material joint venture, partnership or similar agreements or arrangements; and
(xii) any other Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Each Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract (i) is valid and binding and in full force and effect on the Company or the applicable Subsidiary, as the case may be, and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadcounterparties thereto, and is in full force and effect, except in each case as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to materially affect the Business, and (ii) shall continue in full force and effect upon consummation of the transactions contemplated by this Agreement, except to the extent that any consents set forth in Schedule 3.3(a) of the Disclosure Schedules are not obtained, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither Effect or as a result of any facts relating to the Company nor Acquiror or any of its Subsidiaries, nor to the Knowledge Affiliates. None of the Company or any other party to a Company Material Contract, of its Subsidiaries is in violation of breach of, or default under, in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available respect, any Material Contract to Parent prior to the date of this Agreementwhich it is a party.
Appears in 1 contract
Material Contracts. (a) Section 4.21(a6.11(a) of the Company ILG Disclosure Letter Schedule sets forthforth a list of all Contracts described in clauses (i) through (xi) of this Section 6.11(a) to which, as of the date of this AgreementExecution Date, a correct and complete list of each of the following types of Contracts to which the Company ILG or any of its Subsidiaries ILG Subsidiary is a party party, other than (x) the ILG Benefit Plans, (y) any Contract solely between or by which among one or more of ILG and the ILG Subsidiaries and (z) any purchase orders entered into in connection with ILG’s and the ILG Subsidiaries’ ordinary course of their respective properties or assets is bound:business purchasing activities (such Contracts, collectively, the “ILG Material Contracts”):
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Exchange Act);
(ii) each Contract (other than Contracts of the type (without giving effect to dollar thresholds) described in other clauses of this Section 6.11(a)) that ILG reasonably anticipates will involve annual payments or consideration furnished by or to ILG or any of the ILG Subsidiaries of more than $1,500,000;
(iii) each note, whether debenture, other evidence of indebtedness, guarantee, loan, credit or not filed financing agreement or instrument or other Contract for money borrowed by ILG or any of the Company ILG Subsidiaries, in each case, having an outstanding principal amount in excess of $1,500,000;
(iv) any swap, forward, future, option, cap, floor, collar or similar financial Contract or other derivative Contract, or any other interest rate or foreign currency protection Contract;
(v) each Contract for the acquisition of any Person or any business unit thereof or the disposition of any material assets of ILG or any of the ILG Subsidiaries (other than in the ordinary course of business), in each case, involving payments in excess of $5,000,000, other than Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing;
(vi) each joint venture Contract, partnership agreement or limited liability company agreement with the SECa third party (in each case, other than with respect to wholly-owned ILG Subsidiaries);
(vii) each Contract that relates to ongoing or scheduled development plans or arrangements or capital expenditures, in an annual amount in excess of $1,500,000;
(viii) each Contract containing covenants expressly limiting in any Contract governing material respect the freedom of ILG or any of the ILG Subsidiaries to compete with any Person in a Related Party Transaction (as defined below)product line or line of business or operate in any geographic location;
(ix) any registration Contract providing a Person with any: (A) right to cause the appointment or nomination of directors of ILG or any ILG Subsidiary, (B) consent or approval rights agreements with respect to securities any change in Organizational Documents or other significant corporate action by ILG or any ILG Subsidiary, or (C) right of the Companyfirst refusal or first offer or other approval or consent rights with respect to any liquidation, dissolution, restructuring, recapitalization, reorganization or merger of ILG or any ILG Subsidiary;
(x) any employment or consulting Contract (in each case with respect to containing a change of control provision which would be triggered by the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary transactions contemplated by this Agreement and requires payments in excess of $250,0001,500,000; and
(xi) each Contract pursuant to which ILG or any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses ILG Subsidiaries grants to a third party or is granted from a third party any license with respect to Intellectual Property material to ILG and the ILG Subsidiaries (i) through (xi) is referred to herein taken as a “Company Material Contract”whole), other than licenses for commercially available software.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Vistana Signature Experiences, Inc.)
Material Contracts. (a) Section 4.21(a3.08(a) of the Disclosure Schedules lists each of the following Contracts of the Company or any of its Subsidiaries (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.09(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(i) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract of the Company or any of its Subsidiaries involving aggregate consideration received by or paid to the Company or any of its Subsidiaries in excess of $10,000;
(ii) all Contracts that require the Company or any of its Subsidiaries 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 the Company or any of its Subsidiaries 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 stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Company or any of its Subsidiaries is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Company or any of its Subsidiaries is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of the Company Disclosure Letter sets forth, as or any of its Subsidiaries;
(viii) all Contracts with any Governmental Authority to which the Company or any of its Subsidiaries is a party (“Government Contracts”);
(ix) all Contracts that limit or purport to limit the ability of the date Company or any of this Agreement, a correct and complete list its Subsidiaries to compete in any line of each business or with any Person or in any geographic area or during any period of the following types of time;
(x) any Contracts to which the Company or any of its Subsidiaries is a party that provide for any joint venture, partnership or similar arrangement by which the Company or any of their respective properties or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(iixi) each Contract that is a joint venture all Contracts between or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of among the Company or any of its Subsidiaries after on the date one hand and any Equityholder or any Affiliate of this Agreement with a fair market value or purchase price of more any Equityholder (other than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or on the other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiarieshand;
(vixii) each Contract pursuant all collective bargaining agreements or Contracts with any Union to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000party; and
(xixiii) any other Contract or series of related Contracts under which it would reasonably be expected that is material to the Company and or any of its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred and not previously disclosed pursuant to herein as a “Company Material Contract”this Section 3.08.
(b) Except for any Company Each Material Contract that has terminated is valid and binding on the Company or expired its Subsidiary, as applicable, in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect andeffect. None of the Company or any of its Subsidiaries or, to the Knowledge of the Company’s Knowledge, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contractthereto, is in violation breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. To the Company’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 provision Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of such Company Material Contractany right or obligation or the loss of any benefit thereunder. True Complete and complete correct copies of the Company each Material Contracts Contract (including all modifications, amendments and any material amendments supplements thereto and waivers thereunder) have been made available to Parent prior to the date of this AgreementParent.
Appears in 1 contract
Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter Except as otherwise indicated on Schedule 3.12, Schedule 3.12 sets forthforth a complete and correct list, as of the date of this Agreement, a correct and complete list of each all agreements of the following types of Contracts type to which the Company or any of its Subsidiaries a Company Subsidiary is a party or by which any of their respective properties or assets is bound:
may be bound (collectively, the "Material Contracts"): (i) each Contract that (A) limits or restricts in any material respect agreement filed as an exhibit to the Company SEC Reports and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, each agreement that would have been required to be filed as an exhibit to the Company and its SubsidiariesSEC Reports had such agreement been entered into as of the date of filing any such Company SEC Report, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company any loan agreement, indenture, letter of credit, mortgage, note and its Subsidiaries, taken as a whole;
other debt instrument evidencing indebtedness in excess of One Hundred Thousand Dollars ($100,000); (iii) each Contract that is a loan, guarantee of indebtedness any loan agreements or credit agreement, note, bond, mortgage, indenture promissory notes or other binding commitment (other than letters of credit and those instruments evidencing indebtedness between the Company or Company Subsidiary, on the one hand, and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interestany director, rate, currency officer or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets employee of the Company or any of its Subsidiaries after Company Subsidiary, on the date of this Agreement with a fair market value other hand; (iv) any agreement that requires aggregate future payments to or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which by the Company or any Company Subsidiary of its Subsidiaries has continuing “earn-out” or similar obligations that could result more than One Hundred Thousand Dollars ($100,000) (other than contracts entered into in the ordinary course of business); (v) any agreement involving payments in excess of Fifty Thousand Dollars ($1,000,000 in the aggregate;
(vii50,000) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) concerning any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements provisions with respect to securities of the Company;
(x) any employment a "change in control" or consulting Contract (in each case with respect to which the Company has continuing otherwise triggering rights or obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to havewhich, individually or in the aggregate, are reasonably expected to have, a Company Material Adverse Effect; (vi) any material agreement with any key employee, each director, officer, or person known to the Company to be a direct or indirect stockholder of the Company; (vii) except for the limited liability company agreements of the Company Subsidiaries, any joint venture, limited liability company, partnership and similar agreements involving a sharing of profits; (viii) acquisition or divestiture agreements relating to the sale of assets or stock of the Company or any Company Subsidiary (other than sales of inventory in the ordinary course of business); (ix) brokerage or finder's agreements; (x) guarantees of indebtedness for borrowed money of any person (other than a Company Subsidiary); (xi) all deferred compensation arrangements; and (xii) all swaps, options, collars and any other hedging or derivative transactions. To the best of the Company's knowledge, there are no agreements (except for restrictions arising from client contracts that do not purport to cover an entire line of business) restricting the Company or any Company Subsidiary from engaging or competing in any line of business.
(b) Except as set forth in Schedule 3.12, all the Material Contract is Contracts are valid and binding and in full force and effect and, on the date hereof except to the Knowledge of the Company, enforceable against the other party or parties thereto extent they have previously expired in accordance with its their terms, subject and neither the Company nor any Company Subsidiary has (or has any knowledge that any other party thereto has) violated any provision of, or committed or failed to perform any act which with or without notice, lapse of time or both would constitute a default under the Enforceability Exceptions. Except provisions of, any Material Contract, except for breaches, violations or defaults which have not had, and would not reasonably be expected to havewhich, individually or in the aggregate, are not reasonably expected to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company all Material Contracts and any material amendments thereto have been delivered to Acquiror or made available to Parent prior to the date of this Agreementfor inspection.
Appears in 1 contract
Sources: Merger Agreement (Hagler Bailly Inc)
Material Contracts. (a) Section 4.21(a4.07(a) of the Company Seller Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of Schedules lists each of the following types Contracts (excluding, for the avoidance of doubt, sales and purchase orders, but including any Contracts pursuant to which the Company sales or purchase orders are received or submitted) (x) by which any of its Subsidiaries the Purchased Assets are bound or affected or (y) to which Seller is a party or by which any it is bound in connection with the Business or the Purchased Assets, in effect as of their respective properties or assets is bound:the date hereof (such Contracts, together with all Leases listed in Section 4.10(a) of the Seller Disclosure Schedules and all Intellectual Property Agreements listed in Section 4.11(b) of the Seller Disclosure Schedules, being “Material Contracts”):
(i) all Contracts for the furnishing or receipt of products or services by Seller, in each Contract that (A) limits case involving consideration to or restricts by Seller in excess of $15,000 in any twelve-month period and which, in each case, cannot be cancelled without penalty or without more than 90 days’ notice;
(ii) 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;
(iii) all Contracts that relate to the acquisition or disposition by Seller of (a) any of the assets of Seller for consideration in excess of $5,000, or (b) any business, a material respect amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts;
(v) all employment agreements (excluding any offer letters in the Company ordinary course of business consistent with past practices that are terminable at will) and its Subsidiaries from competing Contracts with independent contractors or consultants (or similar arrangements) and which are not cancellable without material penalty or without more than 90 days’ notice;
(vi) except for Contracts relating to trade payables, all Contracts relating to indebtedness (including, without limitation, guarantees);
(vii) all Contracts with any Governmental Authority (“Government Contracts”);
(viii) all Contracts that limit or purport to limit the ability of Seller to compete in any line of business or with any Person or in any geographic region area or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee during any period of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below)time;
(ix) any registration rights agreements with respect to securities of the Companyall joint venture, partnership or similar Contracts;
(x) all Contracts for the sale of any employment of the Purchased Assets or consulting Contract 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;
(in each case xi) all powers of attorney with respect to which the Company has continuing obligations as of the date hereofBusiness or any Purchased Asset;
(xii) all collective bargaining agreements or Contracts with any current (A) executive officer of the Companylabor organization, (B) member of the Company Board, union or (C) Company Employee providing for an annual base salary in excess of $250,000association; and
(xixiii) any all other Contract or series of related Contracts under which it would reasonably be expected that are material to the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period Purchased Assets or the remaining period of such Contract, if shorter. Each Contract operation of the type described in clauses (i) through (xi) is referred Business and not previously disclosed pursuant to herein as a “Company Material Contract”this Section 4.07.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Each Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject and is a valid and binding agreement enforceable against Seller and, to Seller’s Knowledge, the Enforceability Exceptionsother party or parties thereto, in accordance with its terms. Except for breachesNeither Seller nor, violations to Seller’s Knowledge, any other party thereto is in breach of or defaults which have not haddefault under (or is alleged to be in breach of or default under) in any material respect, and or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would not reasonably be expected constitute an event of default by Seller, or to haveSeller’s Knowledge, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company by any other party to a Company any such Material Contract, is in violation of or in default under any provision of such Company Material ContractContract or result in a termination thereof. True Complete and complete correct copies of the Company each written Material Contracts Contract (including all modifications, amendments and any material amendments supplements thereto and waivers thereunder) have been made available to Parent prior to the date of this AgreementBuyer. There are no material disputes pending or threatened under any Assigned Contract.
Appears in 1 contract
Material Contracts. (a) Section 4.21(aSchedule 3.08(a) sets forth a complete and correct list of all agreements of the Company Disclosure Letter sets forthfollowing types to which GoodNet is a party and all or any portion of which are currently in effect (collectively, the "Material Contracts"): (i) agreements filed as exhibits to any filings or reports (collectively, the "Telesoft Reports") made by Telesoft under the Securities Act or Exchange Act (as defined) and each agreement that would have been required to be filed as an exhibit to a Telesoft Report had such agreement been entered into as of the date of this Agreementthe last Telesoft Report; (ii) agreements governing (a) any switching or ATM system site, a correct and complete list of each of the following types of Contracts to which the Company (b) interconnection, peering, porting or any other network accessing arrangements or relationships, (c) network monitoring or maintenance, (d) vendor supply, (e) customer services, (f) points of its Subsidiaries is a party presence, and (g) software technology development or sharing arrangements; (iii) employment, severance, termination, consulting and retirement agreements; (iv) loan agreements, indentures, letters of credit, mortgages, notes and other debt instruments; (v) agreements, including contracts with customers, that require aggregate future payments to or by which GoodNet of more than One Hundred Thousand Dollars ($100,000); (vi) outstanding purchase orders of GoodNet as of November 30, 1997; (vii) agreements containing any "change of their respective properties control" provisions; (viii) agreements, arrangements or assets is bound:
understandings with any employee, director or officer of GoodNet or Telesoft or with any Stockholder or with any affiliate of any thereof; (iix) each Contract that (A) limits agreements prohibiting GoodNet from engaging or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person or limiting such competition; (x) joint venture, partnership and similar agreements; (xi) acquisition or divestiture agreements relating to the (A) sale or purchase of assets or stock of GoodNet (other than sales of inventory in any geographic region the ordinary course of business) or (B) contains exclusivity obligations the purchase of assets or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee stock of indebtedness or credit agreement, note, bond, mortgage, indenture or any other binding commitment person (other than letters the purchase of credit and those between inventory, supplies or equipment in the Company and its wholly owned Subsidiariesordinary course of business); (xii) relating to brokerage, finder's or financial advisory agreements; (xiii) guarantees of indebtedness for borrowed money in an amount in excess of $1,000,000;
any person; (ivxiv) each Contract reseller and dealer agreements; (xv) licensing and rights arrangements for any Intellectual Property (as defined); and (xvii) agreements that, individually or together with respect one or more related agreements, are material to an interestthe assets, ratefinancial condition, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) operations of supplies, inventory, products, equipment, properties GoodNet. True and complete copies of all Material Contracts have been delivered to the WinStar Parties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (made available for inspection. Except as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Actset forth on Schedule 3.08(a), whether or GoodNet is not filed by currently, nor has it been during the Company with the SEC;
(viii) past five years, a party to any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Companyprime contract, (B) member of the Company Boardsubcontract, basic ordering agreement, letter contract, arrangement, purchase order, or (C) Company Employee providing for an annual base salary in excess delivery order of $250,000; and
(xi) any other Contract kind, including all amendments, modifications, and options thereunder or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (eachrelating thereto, given by a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein party holding itself out as a “Company Material Contract”federal or state government or agency, division, subdivision or procuring office thereof.
(b) Except for any Company as set forth in Schedule 3.08(b), all Material Contract that has terminated or expired Contracts are valid and in accordance with its terms full force and except as effect and GoodNet has not had(nor does it or any Stockholder have any knowledge that any other party thereto has) violated any provision of, and or committed or failed to perform any act which with or without notice, lapse of time or both would constitute a default under the provisions of, any Material Contract, except for defaults that would not reasonably be expected to have, individually either singly or in the aggregate, a Company GoodNet Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Material Contracts. (a) For all purposes of and under this Agreement, a “Material Contract” shall mean, in each case, as in effect on the date hereof:
(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 or disclosed by the Company on a Current Report on Form 6-K;
(ii) any Contract with such persons listed as Executive Officers in the Company’s annual report on Form 20-F for the year ending December 31, 2014 or any other employee or independent contractor (in each case, under which the Company or any of its Subsidiaries has continuing obligations) that carries an aggregate annual base salary in excess of $125,000 per annum (excluding Contracts for “at-will” relationships or that are terminable by the Company or the applicable Subsidiary at its discretion, by notice of not more than 90 days for a cost of less than $50,000);
(iii) any Contract relating to the employment of, or the performance of services by, any current director, officer, independent contractor or employee pursuant to which the Company is or may become obligated to make any severance (other than as required by applicable Law), termination, golden parachute, relocation payment, change-of-control or any other payment or payments (other than payments in respect of salary) exceeding $50,000 per each such current director, officer, independent contractor or employee;
(iv) any Contract relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any of the Company’s share capital or other securities or any options, warrants or other rights to purchase or otherwise acquire any Company Shares, other securities or options, warrants or other rights therefor, except for those Contracts conforming, in all material respects, to the standard option grant agreements under the Company Share Plan;
(v) any Collective Bargaining Agreement or similar material Contract with any labor organization, council, union or association;
(vi) any Contract providing for (x) Government Grants from any Israeli Governmental Authority, which Government Grant is extended to support the Company’s research and development operations, or (y) material Government Grants from any other Governmental Authority;
(vii) any Contract between the Company or any of its Subsidiaries and another party which, to the Company’s Knowledge, is party to a Contract or a lower-tier subcontract with a party to a Contract with a Governmental Authority under which, to the Company’s Knowledge, the Company or its Subsidiary acts as subcontractor to such other party and is obligated pursuant to any contractual flow-down provisions or by regulation to abide by any government contracting regulations that are applicable to the prime contractor or higher-tier subcontractor, in each case, that is reasonably expected to involve consideration in fiscal year 2016 in excess of $150,000 per each such Contract;
(viii) ny Contract between the Company or any of its Subsidiaries with any Israeli Governmental Authority or any other Governmental Authority that is reasonably expected to involve consideration in fiscal year 2016 in excess of $100,000;
(ix) any Contract to which the Company or any of its Subsidiaries is a party (A) that contains any covenant by the Company or any of its Subsidiaries not to compete or engage in any line of business or not to engage in its business in any geographic location, or (B) that would obligate the Company or any of its Subsidiaries to make any material payment in connection with the Merger, (C) that is terminable by the other party thereto upon a change of control of the Company (but other than such Contracts that may be terminated for convenience by the other party thereto) and which, if terminated, would reasonably be expected to have an adverse impact on the Company and its Subsidiaries, or (D) that restricts the development, manufacture, marketing or distribution of the products and services of the Company or any of its Subsidiaries by granting such Person the exclusive right in any territory to sell or distribute any product, or by providing “most favored nations” terms, including for pricing terms;
(x) any Contract entered into after December 31, 2012 (A) relating to the disposition, acquisition 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 consistent with past practice, (B) pursuant to which the Company or any of its Subsidiaries will acquire or has acquired any material interest in any other Person (other than the Company or any of its Subsidiaries) or other business enterprise for an amount in excess, in the aggregate, of $5,000,000, 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;
(xi) 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 excess of $400,000 (in each case other than endorsements for the purpose of collection in the ordinary course of business consistent with past practice);
(xii) 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) in excess of $400,000 (other than extensions of trade credit in the ordinary course of business consistent with past practice);
(xiii) any Contract granting any Person a right of first refusal or first negotiation with respect to any sale of the Company in its entirety or any material portion of its shares or assets;
(xiv) any Contract imposing “standstill” obligations on the Company or any of its Subsidiaries;
(xv) any Contract that contains a license in respect of Intellectual Property that is material to the business of the Company and its Subsidiaries (except for (A) licenses of commercially available, off-the-shelf or shrink-wrap Software and (B) licenses granted by the Company or any of its Subsidiaries in the ordinary course of business);
(xvi) any Contract that relates to the formation, creation, operation, management or control of any joint venture, joint ownership, revenue sharing, strategic alliance, partnership, collaboration, or similar arrangement, or pursuant to which the Company or any of its Subsidiaries has an obligation (contingent or otherwise) to make an investment in or extension of credit to any Person;
(xvii) 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 incurred, assumed, guaranteed or secured by any asset), in each case other than in the ordinary course of business consistent with past practice for a principal amount in excess of $1,000,000;
(xviii) any Contract with any of the top 15 suppliers, based on current fiscal year expenditures of goods (including Software) or services to the Company or any of its Subsidiaries (each, a “Material Supplier”);
(xix) any (x) customer Contract pursuant to which the Company generated in fiscal year 2015 or expects to generate in the current fiscal year aggregate revenues in excess of $1,500,000 per customer (each, a “Material Customer”), or (y) any customer Contract procured with the assistance of an agent (including the commissions payable in connection therewith); and
(xx) any Contract relating to the operation or maintenance of any Company Ground Station with expenditures in excess of $500,000 per each such Contract per annum (excluding Contracts with employees of the Company or its Subsidiaries which operate or maintain such Company Ground Stations and excluding any Contracts relating to cleaning, security and catering services provided to such Company Ground Station in the ordinary course of business).
(b) Section 4.21(a3.12(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, contains a correct and complete list of each of the following types of all Material Contracts to which the Company or any of its Subsidiaries is a party party. True and complete copies of all such Material Contracts and any amendments thereto have been publicly filed with the SEC (to the extent required under applicable Law) or by which any of their respective properties or assets is bound:otherwise made available to Parent prior to the date hereof.
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect on the Company (and/or each such Subsidiary of the Company party thereto) and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, enforceable against the other Company or each such Subsidiary of the Company party or parties thereto thereto, as the case may be, in accordance with its termsterms (except as such enforceability (a) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally, and (b) is subject to the Enforceability Exceptions. Except for breacheslaws governing specific performance, violations or defaults which have not hadinjunctive relief and other equitable remedies), and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) neither the Company nor any of its SubsidiariesSubsidiaries that is a party thereto, nor nor, to the Knowledge of the Company Company, any other party to a Company thereto, is in material breach of, or material default under, any such Material Contract, is and no circumstances exist and 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 Company or any of its Subsidiaries, or, to the Knowledge of the Company, any other party thereto or are reasonably expected to contravene in violation any material respect, conflict in any material respect with, or result or give the Company or any of its Subsidiaries or in any other Person the right to declare a material default under or exercise any provision of such Company material remedy under, or to materially accelerate the maturity or performance of, or to cancel, terminate or materially modify, any Material Contract. True , and complete copies (iii) none of the Company Material Contracts and the Company’s Subsidiaries has received written notice of any actual, alleged, possible or potential violation of, or failure to comply with, any material amendments thereto have been made available to Parent prior to the date term or requirement of this Agreementany Material Contract.
Appears in 1 contract
Sources: Merger Agreement (RR Media Ltd.)
Material Contracts. (a) Section 4.21(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of each of Schedule 4.8 describes the following types agreements and contracts of Contracts such Seller and its Affiliates with respect to which the Company or any of its Subsidiaries is a party Assets or by which any of their respective properties or assets is the Assets are otherwise bound:
(i) each Contract all area of mutual interest agreements and agreements that (A) limits include non-competition restrictions or restricts in any material respect other similar restrictions on doing business, farmout agreements, participation agreements, joint venture and exploration or development program agreements relating to the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region Assets or (B) contains exclusivity obligations or restrictions binding on, and material to, by which the Company and its Subsidiaries, taken as a wholeAssets are bound;
(ii) each Contract that is a joint venture all Hydrocarbon production sales or partnership agreement that is material purchase, transportation, marketing, supply, exchange and processing agreements relating to the Company and its SubsidiariesAssets other than such agreements that are terminable on upon not more than thirty (30) days’ notice without penalty, taken as a wholethe payment of money, delivery of other consideration or unduly burdensome effort;
(iii) all contracts and agreements with any Affiliate of such Seller, the other Seller or any of its Affiliates, in each Contract that is a loancase, guarantee of indebtedness if such contracts or credit agreementagreements relate to the Assets, note, bond, mortgage, indenture or other binding commitment (other than letters of credit bind the Assets upon and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000after Closing;
(iv) each Contract with respect all contracts and agreements burdening the Assets which could reasonably be expected to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value obligate Buyer to spend in excess of One Hundred Thousand Dollars ($1,000,000;
(v100,000) each Contract that is an acquisition agreement in any calendar year or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(v) all contracts and agreements providing for a call upon, option to purchase or similar right under any agreements with respect to the Hydrocarbons from the Assets;
(vi) all contracts and agreements for capital expenditures or the acquisition or construction of fixed assets that could be reasonably be expected to require aggregate future payments in excess of One Hundred Thousand Dollars ($100,000);
(vii) each “material contract” (as all contracts and agreements for, or that contemplates, the sale, assignment, exchange or transfer of any of such term is defined Seller’s interest in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SECAssets;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights all farmout agreements, exploration agreements, participation agreements, development agreements, joint venture agreements, unit agreements, unit/joint operating agreements with respect and similar agreements applicable to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or moreAssets, in each case, during where the primary obligation thereunder has not fully been performed; and
(ix) all contracts and agreements under which such Seller has a duty to assign any twelve (12) month period interest in all or the remaining period of such Contract, if shorter. Each Contract a portion of the type Assets. The contracts and agreements described in clauses (iSections 4.8(a)(i) through (xiSection 4.8(a)(ix) is above are collectively referred to herein as the “Material Contracts”; provided, however, that Material Contracts excludes any and all internal agreements between and among Sellers and Sellers’ affiliates, except that, notwithstanding anything herein to the contrary, any such agreement that would cause an adjustment to the Purchase Price under Section 3.3 or that will be binding on the Assets or Buyer after Closing shall be deemed to be a “Company Material Contract”.
(b) Except for any Company Each Material Contract that has terminated or expired is in full force and effect in accordance with its terms and except as has not hadconstitutes the legal, valid, and would not reasonably be expected to havebinding obligation of such Seller, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to such Seller’s Knowledge, the Knowledge of the Companyother Third Party party to such Material Contract, and is enforceable against the other such Seller, and to such Seller’s Knowledge, such Third Party party or parties thereto in accordance with its terms, subject to the Enforceability Exceptionseffects of bankruptcy, insolvency, reorganization, moratorium, and similar Laws, as well as to principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Except for breachesas disclosed in Schedule 4.8, violations (1) such Seller is not, and, to such Seller’s Knowledge, no Third Party party thereto is, or, in each case, to such Seller’s Knowledge, alleged to be, in any material respect, in breach or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any default of its Subsidiaries, nor to the Knowledge of the Company obligations under any other party to a Company Material Contract, is in violation and (2) no event has occurred that with notice or lapse of time or in both would constitute a material default under any provision of such Company Material Contract by such Seller or, to such Seller’s Knowledge, any other Third Party who is a party to such Material Contract. True Such Seller has delivered to Buyer true and complete copies of each Material Contract, the Company Material Contracts Leases and any material and all amendments thereto have been made available to Parent prior to thereto.
(c) There are no (i) agreements with the date other Seller or any of this Agreementthe Sellers’ respective Affiliates which will be binding on the Assets after Closing, or (ii) Hedge Contracts or Debt Contracts that will be binding on the Assets after Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Rosehill Resources Inc.)
Material Contracts. (a) Section 4.21(a4.07(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a correct and complete list of Schedules lists each of the following types Contracts (x) by which any of Contracts the Purchased Assets are bound or affected or (y) to which the Company or any of its Subsidiaries 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 (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 4.10(a) of their respective properties or assets is bound:the Disclosure Schedules and all Intellectual Property Agreements set forth in Section 4.11(b) of the Disclosure Schedules, being “Material Contracts”):
(i) each Contract that (A) limits or restricts all Customer Contracts involving aggregate consideration in any material respect the Company and its Subsidiaries from competing in any line excess of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole$5,000;
(ii) all Contracts involving aggregate consideration in excess of $25,000 and which, in each Contract that is a joint venture case, cannot be cancelled without penalty or partnership agreement that is material to the Company and its Subsidiaries, taken as a wholewithout more than 90 days’ notice;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money any indemnification provisions contained in an amount any Customer Contracts or any indemnification provisions contained in any other documents or agreements entered into by Seller in connection with any capital raising activity or securities offerings, all Contracts involving aggregate consideration in excess of $1,000,00025,000 and which, in each case, cannot be cancelled without penalty or without more than 90 days’ notice, that provide for the indemnification of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000intentionally omitted;
(v) each Contract all Contracts that is an relate to the acquisition agreement or disposition of any business, a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption material amount of debt) after the date stock or assets of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any real property (whether by merger, sale of its Subsidiaries after the date stock, sale of this Agreement with a fair market value assets or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiariesotherwise);
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregateall broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SECintentionally omitted;
(viii) all Contracts with any Contract governing a Related Party Transaction Governmental Authority (as defined below“Government Contracts”);
(ix) all Contracts for the sale of any registration rights agreements with respect to securities of the CompanyPurchased Assets other than in the ordinary course of business, consistent with past practice, 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;
(x) all Contracts between or among Seller on one hand and any employment or consulting Contract (in each case with respect to which Affiliate of Seller on the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000other hand; and
(xi) all collective bargaining agreements or Contracts with any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Union.
(b) Except for any Company Each Material Contract that has terminated or expired is an Assigned Contract is valid and binding on Seller in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect andsubject to applicable bankruptcy, insolvency, reorganization, moratorium and other 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). Seller is not, and to Seller’s Knowledge no other party thereto is, in breach of or default under (and Seller has not received written notice alleging Seller to be in breach of or default under), in any material respect, any Material Contract. Seller has not received written notice of any intention to terminate any Material Contract that is an Assigned Contract. To the Knowledge of the Seller, 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 that is an Assigned 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. Without limiting the foregoing, Seller has processed and maintained all private cord blood and tissue units in accordance with the Customer Contracts. Complete and correct copies of each Material Contract that is an Assigned Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer or have been deposited in the Data Room. There are no material disputes pending or, to the Knowledge of the CompanySeller, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or threatened under any Material Contract included in the aggregate, a Company Material Adverse Effect, neither the Company nor any Purchased Assets.
(c) Seller’s current form of its Subsidiaries, nor to the Knowledge Customer Contract is set forth in Section 4.07(a) of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this AgreementDisclosure Schedules.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cryo Cell International Inc)
Material Contracts. (a) Section 4.21(a3.18(a) of the Company Disclosure Letter sets forth, Schedule lists the following contracts and agreements of each Subsidiary in effect as of the date hereof (such contracts and agreements being “Material Contracts”):
(i) all agreements relating to indebtedness for borrowed money incurred by such Subsidiary (including agreements related to interest rate or currency hedging activities);
(ii) all agreements creating Encumbrances over any asset or property (including Intellectual Property) of such Subsidiary;
(iii) all contracts and agreements for the acquisition or disposition of assets (other than sale of inventories in the ordinary course of business or in connection with capital expenditure) involving consideration in excess of RMB 6,000,000 (with respect to each Subsidiary other than Sanonda Ltd. and its Subsidiaries) or RMB 10,000,000 (with respect to Sanonda Ltd. and its Subsidiaries);
(iv) agreements obligating such Subsidiary to make any future capital expenditure;
(v) all contracts and agreements establishing or creating any exclusivity relationship, partnership, joint venture, relationships as and between shareholders, profit sharing, limited liability partnership or similar entity and;
(vi) all contracts and agreements that limit or purport to limit the ability of such Subsidiary to compete in any line of business or with any Person or in any geographic area or during any period of time;
(vii) each contract or agreement involving total annual payment by or to such Subsidiary in excess of RMB 6,000,000 (with respect to each Subsidiary other than Sanonda Ltd. and its Subsidiaries) or RMB 10,000,000 (with respect to Sanonda Ltd. and its Subsidiaries), other than the types of contracts and agreements already listed under other items of this AgreementSection 3.18(a);
(viii) all contracts and agreements that restrict the declaration, a correct set-aside or payment of any dividends or distributions on, or in respect of, any equity interest of such Subsidiary, other than contracts and complete list agreements relating to indebtedness for borrowed money incurred by or creation of each Encumbrances over any asset or property of such Subsidiary;
(ix) all leases and subleases relating to any Real Property (but excluding the Excluded Assets and Liabilities);
(x) all contracts and agreements between or among such Subsidiary, on the one hand, and the Seller or an Affiliate of the following types Seller (other than the Group Companies), on the other hand, or between such Subsidiary and another Group Company, except contracts and arrangements that are entered into in the ordinary course of Contracts business on an arm’s length basis and not material to the business and operation of such Subsidiary;
(xi) all collective bargaining agreements or any other agreement with a Governmental Authority regarding labor matters;
(xii) all contracts and agreements that grant to any third party any exclusivity with respect to any geographic territory, any market, customer, or any product or service;
(xiii) all contracts and agreements pursuant to which such Subsidiary has granted or agreed to provide “most favored nation” pricing or other similar terms and conditions to any Person with respect to such Subsidiary’s sale, distribution or license of any products or services of such Subsidiary, except, in each case, for any such contract in which such covenants or restrictions would not adversely affect in any material respect the Company business or operations of such Subsidiary;
(xiv) each contract relating to the purchase of raw materials or active ingredients from a supplier of such Subsidiary which involves a total payment of RMB 6,000,000 (with respect to each Subsidiary other than Sanonda Ltd. and its Subsidiaries) or RMB 10,000,000 (with respect to Sanonda Ltd. and its Subsidiaries) under such contract;
(xv) each contract relating to the sale of products to a customers of such Subsidiary which involves a total payment of RMB 6,000,000 (with respect to each Subsidiary other than Sanonda Ltd. and its Subsidiaries) or RMB 10,000,000 (with respect to Sanonda Ltd. and its Subsidiaries) under such contract;
(xvi) instruments under which such Subsidiary has, directly or indirectly, made any advance, loan (excluding intercompany loans), extension of credit (other than an account receivable made in the ordinary course of business) in an amount in excess of RMB 6,000,000 (with respect to each Subsidiary other than Sanonda Ltd. and its Subsidiaries) or RMB 10,000,000 (with respect to Sanonda Ltd. and its Subsidiaries);
(xvii) any written contract that contains a put, call, right of first refusal or similar right pursuant to which such Subsidiary or any of its Subsidiaries is a party would be required to purchase or by which sell any securities of their respective properties or assets is bound:any entity;
(ixviii) each Contract that (A) limits any settlement or restricts in any material respect the Company and its Subsidiaries from competing in any line of business conciliation agreement or similar agreement or contract with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and Governmental Authority involving future performance by such Subsidiary which is material to, to the Company and its SubsidiariesGroup Companies, taken as a whole;
(iixix) each Contract that is any contract to warrant, indemnify, reimburse, hold harmless, guarantee or otherwise assume or incur any liability to provide a joint venture right of rescission with respect to the infringement or partnership agreement that misappropriation of the Intellectual Property of any Person which is material to the Company and its SubsidiariesGroup Companies, taken as a whole;
(iiixx) each Contract that is a loan, guarantee all agreements with the employees listed in Section 3.16(j) of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000Disclosure Schedule;
(ivxxi) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value all agreements listed in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets Section 3.05 of the Company or any Disclosure Schedule that contain change of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000control provisions; and
(xixxii) all outstanding written commitment to enter into any other Contract or series of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract agreements of the type described in clauses (i) through (xixx) is referred to herein as a “Company Material Contract”above.
(b) Except for any Company as disclosed in Section 3.18(b) of the Disclosure Schedule, each Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract (a) is valid and binding and in full force and effect on the Group Company which is a party to such Material Contract, and, to the Knowledge of the CompanySeller, enforceable against the other party or parties thereto counterparties thereto, and is in accordance with its termsfull force and effect and (b) upon consummation of the transactions contemplated by this Agreement, subject except to the Enforceability Exceptionsextent that any consents set forth in Section 3.05 of the Disclosure Schedule are not obtained, shall continue in full force and effect without penalty or other adverse consequence. Except for breachesas disclosed in Section 3.18(b) of the Disclosure Schedule, violations none of the Group Companies is in material breach of, or defaults material default under, any Material Contract to which have not hadit is a party.
(c) None of the Group Companies has received any written notice or claim of default under any Material Contract or any written notice of an intention to, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any Seller, no other party to any Material Contract intends to, terminate, not renew or challenge the validity or enforceability of any Material Contract (including as a Company Material Contractresult of the execution and performance of this Agreement), is other than notices with respect to defaults which have either been cured or waived, and to the Seller’s Knowledge, no event has occurred that would result in violation of a material breach or in a material default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Sources: Equity Interest Transfer Agreement (Adama Agricultural Solutions Ltd.)
Material Contracts. (a) Section 4.21(a3.17(a) of the Company Disclosure Letter Schedule sets forth, forth a list (as of the date of this Agreement) of (i) each Contract with the top twenty-five (25) new license customers of the Company and its subsidiaries and the top twenty-five (25) maintenance customers of the Company and its subsidiaries (in each case, based on payments made by such customers during the 2004 fiscal year), (ii) all Contracts or indentures relating to borrowed money or other indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company or any of its subsidiaries, including the amount of funded indebtedness for borrowed money outstanding as of the date hereof under any such Contract or indenture, (iii) all joint venture or other similar agreements or other Contracts involving the purchase or disposition of any business or any material assets to which the Company or any of its subsidiaries is or has been a party since January 1, 2002, (iv) all lease agreements to which the Company or any of its subsidiaries is a party with annual lease payments in excess of $100,000, (v) Contracts under which the Company or any of its subsidiaries has advanced or loaned any third party an amount in excess of $100,000 (excluding, for avoidance of doubt, trade accounts receivable incurred in the ordinary course of business), (vi) each Contract with or groups of related Contracts with third parties constituting the thirty-five (35) parties to which the Company and its subsidiaries made the largest dollar amount of cash payments during the 2004 fiscal year (other than pursuant to the leases described in clause
(iv) (vii) Contracts containing non-compete or non-solicitation covenants or most favored nations provisions enforceable against the Company or any of its subsidiaries, and (viii) warranty agreements with respect to the Company’s or its subsidiaries’ services or products, other than warranties granted in the ordinary course of business (the items listed in clauses (i) through (viii) hereof, together with any Contract required to be disclosed pursuant to Section 3.15 hereof, collectively, the “Material Contracts”). The Company has made available to Merger Sub or its representatives a correct and complete list copy of each Material Contract listed in Section 3.17(a) of the following types Company Disclosure Statement.
(b) Except as disclosed in Section 3.17(b) of the Company Disclosure Schedule, (i) neither the Company nor any of its subsidiaries is, nor to the Company’s knowledge, is any other party, in default under any Material Contract and (ii) to the Company’s knowledge, there has not occurred any event that, with the lapse of time or giving of notice or both, would constitute such a default, except in either case, any such default which has not had, and could not reasonably be expected to have, a Company Material Adverse Effect. All Contracts to which the Company or any of its Subsidiaries subsidiaries is a party party, or by which any of their respective properties or assets is are bound:
(i) each Contract that (A) limits or restricts , are valid and binding, in any material respect the Company full force and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, effect and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of enforceable against the Company or any of its Subsidiaries after such subsidiary, as the date of this Agreement with a fair market value or purchase price of more than $1,000,000case may be, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of and to the Company’s and its Subsidiaries’ business or (y) of suppliesknowledge, inventorythe other parties thereto in accordance with their respective terms, productssubject to applicable bankruptcy, equipmentinsolvency, properties reorganization, moratorium or other assets that are obsoletesimilar laws relating to creditors’ rights generally and to the general principles of equity, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below);
(ix) any registration rights agreements and except with respect to securities of the Company;
(x) any employment or consulting Contract (in each case with respect such failure to which the Company has continuing obligations as of the date hereof) with any current (A) executive officer of the Company, (B) member of the Company Board, or (C) Company Employee providing for an annual base salary in excess of $250,000; and
(xi) any other Contract or series of related Contracts under which it would reasonably be expected that the Company valid and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or morebinding, in each case, during any twelve (12) month period full force and effect or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as enforceable which has not had, and would could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Mapics Inc)
Material Contracts. (a) Section 4.21(a4.16(a) of the Company Disclosure Letter sets forthSchedule lists, as of the date of this Agreement, a correct and complete list of each of the following types of Contracts contracts and agreements to which the Company or any of its Subsidiaries Company Subsidiary is a party or party, excluding for this purpose, any purchase orders submitted by which customers (such contracts and agreements as are required to be set forth in Section 4.16(a) of the Company Disclosure Schedule, along with any Plan listed on Section 4.10(a) of their respective properties or assets is bound:the Company Disclosure Schedule, being the “Material Contracts”):
(i) each Contract that (A) limits or restricts in any material respect all contracts and agreements with consideration payable to the Company and its Subsidiaries from competing in or any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its SubsidiariesSubsidiaries of more than $250,000, taken as a wholein the aggregate, over any 12-month period;
(ii) each Contract that is a joint venture or partnership agreement that is material all contracts and agreements with suppliers to the Company and its Subsidiariesor any Company Subsidiary, taken as a wholeincluding those relating to the design, development, manufacture or sale of Products of the Company or any Company Subsidiary, for expenditures paid or payable by the Company or any Company Subsidiary of more than $250,000, in the aggregate, over the 12-month period prior to the date hereof, other than purchase orders on the form of such purchase order made available in the Virtual Data Room;
(iii) each Contract that 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 Company Subsidiary is a loan, guarantee party that are material to the business of indebtedness the Company;
(iv) all management contracts (excluding contracts for employment) to the extent material to the business of the Company or credit agreement, note, bond, mortgage, indenture any Company Subsidiary;
(v) all contracts or agreements involving the payment of royalties or other binding commitment (other than letters amounts calculated based upon the revenues or income of credit and those between the Company or any Company Subsidiary or income or revenues related to any Product of the Company or any Company Subsidiary to which the Company or any Company Subsidiary is a party;
(vi) all contracts and its wholly owned Subsidiaries) relating to agreements evidencing indebtedness for borrowed money in an amount in excess of greater than $1,000,000;
(iv) each Contract with respect to an interest250,000, rateand any pledge agreements, currency security agreements or other swap or derivative transaction (other than those between collateral agreements in which the Company and its Subsidiaries) with or any Company Subsidiary granted to any person a fair value security interest in excess or lien on any of $1,000,000;
(v) each Contract that is an acquisition agreement the property or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after Company Subsidiary, and all agreements or instruments guaranteeing the date of this Agreement with a fair market value or purchase price of more than $1,000,000, excluding, in each case, (x) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties debts or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct obligations of business of the Company or its Subsidiariesany person;
(vivii) each Contract pursuant all partnership or joint venture;
(viii) all contracts and agreements with any Governmental Authority to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term Company Subsidiary is defined in Item 601(b)(10) of Regulation S-K under the Securities Act)a party, whether or not filed by the other than any Company with the SEC;
(viii) any Contract governing a Related Party Transaction (as defined below)Permits;
(ix) any registration rights all contracts and agreements with respect that limit, or purport to securities limit, the ability of the CompanyCompany or any Company Subsidiary to compete in any line of business or with any person or entity or in any geographic area or during any period of time, excluding customary confidentiality agreements and agreements that contain customary confidentiality clauses;
(x) all contracts or arrangements that result in any employment person or consulting Contract entity holding a power of attorney from the Company or any Company Subsidiary that materially relates to the Company, any Company Subsidiary or materially impacts their respective business;
(xi) all Leases, and all leases or master leases of personal property, reasonably likely to result in each case with respect annual payments of $500,000 or more in a 12-month period;
(xii) all contracts involving use of any Company Licensed IP required to be listed in Section 4.13(a) of the Company Disclosure Schedule that are material to the business of the Company, other than collaboration agreements entered into on the form of such agreement made available in the Virtual Data Room;
(xiii) all contracts which involve the license or grant of rights to Company Owned IP by the Company or the Company Subsidiaries that are material to the business of the Company, other than collaboration agreements entered into on the form of such agreement made available in the Virtual Data Room;
(xiv) all contracts or agreements under which the Company has continuing obligations as agreed to purchase goods or services from a vendor, supplier or other person on a preferred supplier or “most favored supplier” basis;
(xv) all contracts or agreements for the development of Company Owned IP for the benefit of the date hereof) with any current (A) executive officer of Company that are material to the Company, (B) member other than employment, consulting and collaboration agreements entered into on the form of such agreement made available in the Company BoardVirtual Data Room, or (C) Company Employee providing for an annual base salary in excess of $250,000without material modification; and
(xixvi) any other Contract all contracts or series of related Contracts agreements under which it would reasonably be expected that any broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Transactions, or which has a fee tail still in effect, based upon arrangements made by or on behalf of the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Subsidiary.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not hadbeen, and would not reasonably be expected to havebe, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a Company Material Adverse Effect, whole (i) each Company Material Contract is a legal, valid and binding and in full force and effect obligation of the Company or the Company Subsidiaries and, to the Knowledge knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not hadthereto, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its SubsidiariesCompany Subsidiary is in material breach or violation of, or material default under, any Material Contract nor has any Material Contract been canceled by the other party; (ii) to the Knowledge Company’s knowledge, no other party is in material breach or violation of, or material default under, any Material Contract; and (iii) the Company and the Company Subsidiaries have not received any written, or to the knowledge of the Company Company, oral claim of any other party to a Company Material Contract, is in violation of or in material default under any provision of such Company Material Contract. True and complete copies of the The Company Material Contracts and any material amendments thereto have been has furnished or made available to Parent prior to HCAC in the date Virtual Data Room true and complete copies, in all respects, of this Agreementall Material Contracts, including amendments thereto that are material in nature.
Appears in 1 contract
Sources: Merger Agreement (Hennessy Capital Acquisition Corp IV)
Material Contracts. (a) Section 4.21(a2.17(a) of the Company Disclosure Letter sets forth, Schedule lists the following respective Contracts in effect as of the date of this Agreement, a correct hereof (together with all amendments and complete list of each of the following types of Contracts supplements) to which the Company or any of its Subsidiaries Company Subsidiary is a party party, or by which any of their respective properties property or assets is bound:
(i) each Contract that (A) limits or restricts in any material respect the Company and its Subsidiaries from competing in any line of business with any Person in any geographic region or (B) contains exclusivity obligations or restrictions binding on, and material to, the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture or partnership agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(v) each Contract that is an acquisition agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $1,000,000 or (B) any other Person has the right to acquire any assets asset of the Company or any Company Subsidiary is bound or affected (other than any “material contract” (as such term is used in Item 601(b)(10) of its Subsidiaries after Regulation S-K of the SEC) that is filed as an exhibit to the Company SEC Reports prior to the date of this Agreement with a fair market value or purchase price of more than $1,000,000hereof), excluding, such Contracts as are required to be set forth in each case, (xSection 2.17(a) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or (y) of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or Disclosure Schedule and any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 in the aggregate;
(vii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Act)SEC) collectively being, whether the “Company Material Contracts”:
(i) other than leases of real property, Contracts with suppliers and the Company Plans set forth in Section 2.10(a) of the Company Disclosure Schedule, each Contract that (A) provides for payment obligations of more than $1,000,000, in the aggregate, during the fiscal year ending December 31, 2011, or (B) provides for payment obligations of more than $2,000,000, in the aggregate, over the remaining term of such Contract, and that, in either case, cannot filed be canceled by the Company or any Company Subsidiary upon ninety (90) days or less notice without material liability to the Company or any Company Subsidiary;
(ii) (A) all revenue-generating Contracts other than purchase orders issued in the ordinary course of business that were entered into after January 1, 2009 or were entered into before January 1, 2009 and remain in effect with the SECfive (5) largest customers of the Company or the Company Subsidiaries (determined on the basis of revenues received by the Company or the Company Subsidiaries in the fiscal year ended December 31, 2010 and that have material, known, unfulfilled obligations on behalf of the customer), and (B) the five (5) largest revenue generating Contracts (determined on the basis of revenue received by the Company or the Company Subsidiaries in the fiscal year ended December 31, 2010);
(iii) all Contracts that were entered into after January 1, 2009 or were entered into before January 1, 2009 and remain in effect with the twenty (20) largest suppliers to the Company or the Company Subsidiaries (determined on the basis of amounts paid by the Company or any of its Subsidiaries in the fiscal year ended December 31, 2010 and that have material, known, unfulfilled obligations on behalf of the supplier), indicating each such supplier that is a sole-source supplier to the Company or any Company Subsidiary;
(iv) other than the Company Plans set forth in Section 2.10(a) of the Company Disclosure Schedule, Contracts with employees in substantially the form of the standard forms made available by the Company to Parent and any “at-will” employment contracts that do not contain severance rights, (A) all U.S. employment Contracts of those employees and managers that receive from the Company or any Company Subsidiary annual base compensation in excess of $250,000, and (B) all individual consulting Contracts for those consultants that receive from the Company or any Company Subsidiary annual compensation in excess of $250,000 (provided that references to such Contracts have been made completely anonymous for those employees, managers or consultants based in jurisdictions where this is required under applicable data privacy/protection Laws);
(v) all Contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or a Company Subsidiary, or income or revenues related to any product of the Company or a Company Subsidiary where such payments are expected to exceed $500,000 in the 12 month period following the date hereof;
(vi) other than leases of real property, all Contracts that grant a right of first refusal, first offer or similar right, in each case, that is material to the Company and the Company Subsidiaries, taken as a whole;
(vii) all Contracts that limit or purport to limit the ability of the Company or any Company Subsidiary, or, upon the consummation of the Merger, Parent or any Parent Subsidiaries, to compete with any person or entity, in any geographic area or during any period of time;
(viii) other than in the ordinary course, any Contract governing relating to the disposition or acquisition by the Company or any Company Subsidiary of assets or equity ownership interests for consideration in excess of $10,000,000 that contain ongoing obligations that are material to the Company and the Company Subsidiaries, taken as a Related Party Transaction (as defined below)whole;
(ix) any registration rights mortgages, indentures, guarantees, loans, credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case, in excess of $5,000,000, other than (A) accounts receivables and payables, and (B) loans to or guarantees for direct or indirect wholly owned Company Subsidiaries, in each case, in the ordinary course of business consistent with respect to securities of the Companypast practice;
(x) any employment each “material contract” (as such term is used in Item 601(b)(10) of Regulation S-K of the SEC) executed on or consulting Contract prior to the date hereof that is anticipated to be filed (in each case or required to be filed) pursuant to Item 601(b)(10) of Regulation S-K with the Company’s next periodic report under the Exchange Act;
(xi) other than leases of real property, all Contracts providing for (A) indemnification (including with respect to which the Company has continuing obligations as of the date hereofIntellectual Property rights) with any current (A) executive officer of the Company, or (B) member any material guaranty of Third Party obligations, in each of the foregoing cases except for those entered into in the ordinary course of business (including those in connection with Company BoardOutbound License Agreements);
(xii) all Contracts relating to revenue or profit-sharing joint ventures (whether in partnership, limited liability company or other organizational form);
(Cxiii) Company Employee all Contracts with any Governmental Authority (other than ordinary course customer Contracts providing for an annual base salary in excess of payments below $250,0001,000,000 and pursuant to which the counterparty does not have any rights to the Company’s or the Company Subsidiaries’ products or services or Company Intellectual Property rights other than its rights to use the products or services sold under such Contract as a customer); and
(xixiv) all Contracts entered into in the last five (5) years in connection with the settlement or other resolution of any other Contract legal action that has any material continuing obligation, liability or series restriction on the part of related Contracts under which it would reasonably be expected that the Company and its Subsidiaries would receive annual payments of $7,000,000 or more (each, a “Revenue Contract”) or make annual payments of $5,000,000 or more, in each case, during any twelve (12) month period or the remaining period of such Contract, if shorter. Each Contract of the type described in clauses (i) through (xi) is referred to herein as a “Company Material Contract”Subsidiaries.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregateaggregate reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole or any line of business of the Company Material Adverse Effector any Company Subsidiary, (i) each Company Material Contract is a legal, valid and binding agreement and is in full force and effect andand enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws relating to, or affecting the rights and remedies of creditors generally), (ii) the Company or the Company Subsidiary, as applicable, is not in default under any Company Material Contract, has not committed or failed to perform any act that, with or without notice, lapse of time, or both, would constitute a default under the Company Material Contract, and (iii) to the Knowledge knowledge of the Company, enforceable against the no other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Company Material Contract, is in breach or violation of of, or in default under under, any provision of such Company Material Contract. True The Company has made available to Parent true and complete copies of the all Company Material Contracts and Contracts, including any material amendments thereto have been made available to Parent prior to the date of this Agreementand supplements thereto.
Appears in 1 contract